Maintainability of Writ Petition
Transcript of Maintainability of Writ Petition
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
THURSDAY, THE 18TH DAY OF DECEMBER 201!2"TH AGRAHAYANA, 1#$%
P'C(.N). $%22 )* 200 'J(
++++++++++++++++++++++++++++
PETITIONER'S(:
++++++++++++++++++++++++++
DR.JOHN KURIAKOSE,
KOCHUPURAKKAL HOUSE, CHERUKUNNAM,
ASAMANNOOR P.O., PIN+%8$ #, 'PRINCIPAL,ST.MARY-S COLLEGE, MANARCAUD(.
BY DR.JOHN KURIAKOSE 'PARTY IN PERSON(.
RESPONDENT'S(:
++++++++++++++++++++++++++++
1. STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY,
HIGHER EDUCATION DEPARTMENT, SECRETARIAT,
THIRUANANTHAPURAM+%# 001.
2. DIRECTOR OF COLLEGIATE EDUCATION,
IKAS BHAAN, THIRUANANTHAPURAM+%# 001.
$. MAHATMA GANDHI UNIERSITY,
REPRESENTED BY ITS REGISTRAR,
P.D. HILLS P.O., KOTTAYAM+%8% 001.
. ST.MARY-S COLLEGE,
MANARCAUD, MALAM P.O., PIN+%8% 0$1,
REPRESENTED BY ITS MANAGER.
. MAR ATHANASIUS COLLEGE,
KOTHAMANGALAM+ %8% %%%,
REPRESENTED BY ITS MANAGER.
R1 & R2 BY GOT. PLEADER SMT.GIRIJA GOPAL.
R$ BY SRI.P.JACOB ARGHESE, SENIOR SC,
ADS. SRI.ARUGHESE M.EASO, SC,
SRI.IEK ARGHESE P.J., SC.
R BY SRI.K.GOPALAKRISHNA KURUP, SENIOR ADOCATE.
AD. SRI.S.MANU
R BY ADS. SRI.GEORGE JACOB 'JOSE(,
SRI.REENA ABRAHAM.
THIS RIT PETITION 'CIIL( HAING BEEN FINALLY HEARD
ON 1#+11+201, THE COURT ON 18+12+201 DELIERED THE
FOLLOING:
/.
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APPENDI
PETITIONER-S EHIBITS:+
ET.P1 COPY OF THE ADERTISEMENT APPEARED IN THE UNIERSITY
NES DATED 08!0!2000.
ET.P2 COPY OF THE REPORT OF STAFF SELECTION COMMITTEE
DATED 01!0"!2000.
ET.P$ COPY OF THE APPOINTMENT ORDER DATED 0$!0"!2000.
ET.P COPY OF THE PROCEEDINGS OF THE TH RESPONDENT
DATED 0$!0"!2000.
ET.P COPY OF THE APPLICATION DATED 01!0"!2000 SUBMITTED BY THEPETITIONER BEFORE THE TH RESPONDENT.
ET.P% COPY OF THE RELIEING ORDER ISSUED BY THE
TH RESPONDENT DATED 0$!0"!2000.
ET.P" COPY OF THE APPLICATION DATED 1%!12!2000 SUBMITTED BY
THE TH RESPONDENT BEFORE THE $RD RESPONDENT.
ET.P8 COPY OF THE ORDER DATED $1!0$!2001 OF THE
$RD RESPONDENT.
ET.P# COPY OF THE JUDGMENT DATED 2"!0"!200 INP'C(.NO. 2#801!200$ OF THIS HONOURABLE COURT.
ET.P10 COPY OF THE SHO CAUSE NOTICE DATED 1"!08!200
ISSUED BY THE TH RESPONDENT TO THE PETITIONER.
ET.P11 COPY OF THE LETTER DATED 01!0#!200 FROM THE PETITIONER
TO THE TH RESPONDENT.
ET.P12 COPY OF THE REPLY DATED 0$!0#!200 FROM THE
TH RESPONDENT TO THE PETITIONER.
ET.P1$ COPY OF THE EPLANATION DATED 22!0#!200 SUBMITTED BY
THE PETITIONER BEFORE THE TH RESPONDENT.
ET.P1 COPY OF THE ORDER DATED 12!10!200 ISSUED BY THE
TH RESPONDENT.
ET.P1 COPY OF THE ORDER DATED 1!10!200 ISSUED BY THE
TH RESPONDENT.
ET.P1% COPY OF THE REPRESENTATION SUBMITTED BY THE
PETITIONER BEFORE THE TH RESPONDENT DATED 0$!11!200.
ET.P1" COPY OF THE REPLY DATED 1!11!200 FROM THE
TH RESPONDENT TO THE PETITIONER.
.......2!+
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ET.P18 COPY OF THE REPRESENTATION SUBMITTED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT DATED 0$!11!200.
ET.P1# COPY OF THE REPRESENTATION SUBMITTED BY THE
PETITIONER BEFORE THE $RD RESPONDENT DATED 0$!11!200.
ET.P20 COPY OF THE ORDER DATED 0$!0#!200$ SUSPENDING THE
PETITIONER ISSUED BY THE MANAGER, ST. MARY-S COLLEGE,
MANARCAUD.
ET.P21 COPY OF THE STATEMENT OF FACTS DATED 12!11!200$ ISSUED
TO THE PETITIONER BY THE MANAGER, ST. MARY-S COLLEGE,
MANARCAUD.
ET.P22 COPY OF THE ORDER DATED 1$!0#!200$ ISSUED BY THE
MANAGER, ST. MARY-S COLLEGE, MANARCAUD.
RESPONDENT-S EHIBITS:+
ET.R$A COPY OF THE PROCEEDINGS DATED 0$!0"!2000 OF THE MANAGER.
ET.R$B COPY OF THE ORDER OF APPOINTMENT DATED 0$!0"!2000.
ET.R$C COPY OF THE ORDER DATED $1!0$!2001 OF THE UNIERSITY
APPROING THE APPOINTMENT OF PRINCIPAL, ST. MARY-S
COLLEGE, MANARCAUD.
ET.RA COPY OF THE MINUTES OF THE MEETING OF THE GENERALBODY 'EDAAKA POTHUYOGAM( OF ST. MARY-S JACOBITE
SYRIAN CHURCH, MANARCAUD HELD ON 12!0$!2000.
ET.RB COPY OF THE MINUTES OF THE MEETING OF THE GOERNING
BOARD OF THE COLLEGE HELD ON 2!0!2000.
ET.RC COPY OF THE MINUTES OF THE MEETING OF THE
GOERNING BOARD OF THE COLLEGE HELD ON 01!0"!2000
AND 10!0"!2000.
ET.RD COPY OF THE APPOINTMENT ORDER DATED 0$!0"!2000
SERED ON THE PETITIONER.
ET.RE COPY OF THE ORDER DATED 22!0!2002 ISSUED BY THE
SECRETARY OF THE TH RESPONDENT COLLEGE.
!!TRUE COPY!!
/. P.S. TO JUDGE
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'C.R'
ASHOK BHUSHAN, Ag.CJ,A.M.SHAFFIQUE, J
&A.K.JAYASANKARAN NAMBIAR, J
----------------------------------------------
W.P(C).No. 36!! o" !##
----------------------------------------------
$% *+ $/01, !#
JU$2MEN
A+o4 B5+%, Ag.CJ.
The learned Single Judge, while hearing the Writ
Petition, by reference order dated 18.4.2012, directed the
matter to be laced before the !cting "hief Ju#tice for
con#ideration by a $arger %ench. Thereafter the Writ
Petition wa# laced before a &i'i#ion %ench. The &i'i#ion
%ench 'ide it# order dated 12.(.201) directed the Writ
Petition to be laced before the *ull %ench. "on#e+uently,
the Writ Petition ha# been laced for con#ideration before
thi# %ench.
2. Thi# i# a #econd round of litigation initiated by the
etitioner by mean# of the Writ Petition in thi# "ourt. The
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earlier Writ Petition, W.P"-.o.2/801 of 200) wa# laced
before the *ull %ench, which di#o#ed of the matter by it#
udgment dated 2..2004 lea'ing the +ue#tion to be
decided in aroriate roceeding# The brief fact# gi'ing
ri#e to thi# Writ Petition now need to be noted.
). The etitioner oined the #er'ice of the fifth
re#ondent a# $ecturer in 3ngli#h. The fourth re#ondent
"ollege i##ued an ad'erti#ement in the ni'er#ity ew#
dated 8.(.2000 in'iting alication# for aointment to
the o#t of Princial of the "ollege. The o#t of Princial in
the fourth re#ondent "ollege fell 'acant on )1.).2000
due to the retirement of the earlier incumbent. The
etitioner #ubmitted an alication for the #aid o#t. !
Selection "ommittee wa# con#tituted in accordance with
Section (/ of the 5ahatma 6andhi ni'er#ity !ct, 1/8(
hereinafter referred to a# 7the !ct, 1/8(7-. Selection wa#
conducted in accordance with the ro'i#ion# of Section (/
of the !ct, 1/8( by duly con#tituted Selection "ommittee.
The etitioner wa# recommended to be aointed a# the
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Princial. The recommendation of the Selection
"ommittee wa# forwarded to the ni'er#ity for aro'al
a# re+uired by Section (/8- of the !ct, 1/8(. The
ni'er#ity aro'ed the aointment, which wa#
communicated to the "ollege by letter dated )1.).2001.
The "ollege i##ued an aointment order to the etitioner
aointing him a# Princial with effect from )..2000. The
etitioner referred an alication to hi# earlier in#titution,
i.e., (th re#ondent for being relie'ed. n the letter the
etitioner re+ue#ted the (thre#ondent to relie'e him with
lien of fi'e year#. The (
th
re#ondent "ollege i##ued
relie'ing order dated )..2000 mentioning that the
etitioner7# lien i# retained in the o#t of $ecturer
Selection 6rade- in 3ngli#h for a eriod of fi'e year#.
4. The etitioner wa# laced under #u#en#ion by
order dated )./.200) of the 4th re#ondent "ollege
ending di#cilinary roceeding#. "hallenging the order
dated )./.200), the etitioner filed W.P"-.o.2/801 of
200). n the Writ Petition a reliminary obection wa#
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rai#ed by learned coun#el for the management that the
Writ Petition ha'ing been filed again#t a ri'ate body wa#
not maintainable. $earned coun#el for the management
laced reliance on a *ull %ench udgment of thi# "ourt in
Madhavan Pillai v. Balan and others1// 9$T 220-. t
wa# contended on behalf of the etitioner that the writ
Petition wa# maintainable in 'iew of the 'ariou#
udgment# of the !e: "ourt. The matter wa# laced
before the &i'i#ion %ench and the &i'i#ion %ench by order
dated 14.11.200) directed the matter to be laced before
the *ull %ench. The Writ Petition came u for hearing
before the *ull %ench. %efore the *ull %ench learned
coun#el for the management #ubmitted that the en+uiry
ordered again#t the etitioner ha# reached final #tage
and the en+uiry reort ha# already been #er'ed on the
etitioner. t wa# contended by the management that in
ca#e the management imo#e# any uni#hment, the
etitioner ha# got an effecti'e alternati'e remedy by way
of aeal before the ni'er#ity !ellate Tribunal under
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Section ;);- of the !ct, 1/8(. The *ull %ench left the
+ue#tion regarding maintainability of the Writ Petition
oen, but di#o#ed of the Writ Petition directing the
5anagement to a## aroriate order# with liberty to the
etitioner to ta
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#tatement of defence on .1.2004. !fter en+uiry, a reort
dated )0.1.2004 wa# #ubmitted holding certain charge# to
be ro'ed. Show cau#e notice dated 1.8.2004 wa# i##ued
to the etitioner by the 5anager directing the etitioner to
#how cau#e why uni#hment of remo'al from #er'ice or
uni#hment of reduction to the lower o#t of Selection
6rade $ecturer in 3ngli#h in the &eartment of 3ngli#h in
St.5ary7# "ollege, 5anarcaud #hould not be imo#ed. The
etitioner, after receit of the notice, rayed for a
clarification 'ide hi# letter dated 1./.2004. The etitioner
#tated that three uni#hment# ha'e been roo#ed, i.e.,
remo'al from #er'ice, reduction to the o#t of Selection
6rade $ecturer and #ending bac< to 5.!."ollege,
9othamangalam. The etitioner en+uired a# to what
e:actly the uni#hment roo#ed wa#. The management
relied 'ide letter dated )./.2004 clarifying that the
uni#hment roo#ed i# only the uni#hment of remo'al
from #er'ice or reduction to the lower o#t of Selection
6rade $ecturer in 3ngli#h in 4th re#ondent "ollege. The
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etitioner #ubmitted hi# e:lanation to the #how cau#e
notice 'ide hi# letter dated 22./.2004. The 5anager, a#
the di#cilinary authority, i##ued order dated 12.10.2004
informing the etitioner that the etitioner7# aointment
on deutation a# Princial of St.5ary7# "ollege #tand#
terminated with effect from 12.10.2004 and he #tand#
re'erted to the o#t of Selection 6rade $ecturer in 3ngli#h
in 5ar !thana#iu# "ollege, 9othamangalam. The
etitioner, after receit of order dated 12.10.2004 and
relie'ing order dated 1(.10.2004, #ubmitted a
rere#entation to the 5anager re+ue#ting to withdraw
order# dated 12.10.2004 and 1(.10.2004. The etitioner
#tated in the rere#entation that he wa# ne'er on
deutation, he wa# directly aointed and that he ha# lien
in the o#t of Princial of St.5ary7# "ollege and hi#
re'iou# lien ha# come to an end under =ule 1; of the
9erala Ser'ice =ule#. The etitioner ga'e further
rere#entation and thereafter filed the re#ent Writ
Petition raying for the following relief#>
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i. Quash Exhibit P14 declaring that the 4
th
respondent is not competent to revert the
petitioner to the 5threspondent College by
terminating his appointment.
ii. Direct the 4th respondent to reinstate the
petitioner as Principal ith bac! ages"
continuity o# service and all conse$uentialbene#its.
iii. %n the alternative" issue a rit o# mandamus
to the &ndand 'rdrespondents to consider
and pass orders on Exhibits P1( and P1)
respectively.
iii*a+. issue a rit o# certiorari or any other
appropriate rit" direction or order calling
#or the records leading to Exhibit P&, and
$uashing the same.
iii*b+. declare that Exhibit P14 is one issued
ithout any authority o# la and is
there#ore void and nonest.
iii*c+ declare that no disciplinary proceedings
have been legally initiated against the
petitioner and hence the action o# the 4th
respondent in !eeping the petitioner aay
#rom service is unautohri-ed" illegal and
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violative o# rticle 14 o# the Constitution o#
%ndia./
;. %efore we analy#e the #ubmi##ion# of learned
coun#el for the artie#, it i# nece##ary to refer to the
earlier *ull %ench udgment of thi# "ourt in W.P"-.
o.2/801 of 200). !lthough the i##ue of maintainability of
the Writ Petition again#t a ri'ate body wa# referred to,
the *ull %ench di#o#ed of the Writ Petition in the
following manner>
?4. 0e are o# the vie" the $uestion
hether a 0rit Petition is maintainable against
a private college need not be gone into in the
#acts and circumstances o# this case. he
en$uiry ordered against the petitioner has
reached its #inal stage. En$uiry report has
already been served on the petitioner. he
management is yet to ta!e a #inal decision on
the en$uiry report. 2n the basis o# the en$uiry
report" i# the management imposes any
punishment" petitioner has got an e##ective
alternative remedy by ay o# appeal be#ore the
3niversity ribunal under ection '*+ o# the
6.7.3niversity ct. ince the management is
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yet to ta!e a #inal decision on the basis o# the
en$uiry report and as the petitioner has an
e##ective alternative remedy o# #iling an appeal
be#ore the ribunal" e #eel it unnecessary to
pronounce upon the $uestion hether the rit
petition is maintainable or not. 0e there#ore
leave that $uestion open to be decided in
appropriate proceeding. 0e also ma!e it clear
that i# the petitioner has got a contention that
the disciplinary proceedings ere initiated
ithout 8urisdiction it is alays open to him to
raise the same be#ore the ribunal./
. When the matter came u for hearing before the
&i'i#ion %ench, it wa# contended by learned coun#el
aearing for the management that a# er the earlier
udgment of the *ull %ench, the *ull %ench ha# relegated
the etitioner to file aeal before the Tribunal under
Section ;);- of the !ct, 1/8(, hence, the remedy of the
etitioner i# to aroach the ni'er#ity !ellate Tribunal,
wherea# before the learned &i'i#ion %ench the etitioner
contended that 3:hibit P14 order dated 12.10.2004, which
i# imugned in the Writ Petition, i# not an order of
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uni#hment, but only an order informing the etitioner
that the etitioner7# deutation ha# been terminated and
he ha# been re'erted to the o#t of Selection 6rade
$ecturer in 3ngli#h in the (th re#ondent "ollege, hence,
the order imugned being not i##ued by way of imo#ition
of enalty, there i# no other remedy, e:cet to aroach
thi# "ourt.
8. The etitioner ha# aeared in er#on and laced
hi# ca#e with clarity by ma
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the management ha'ing found that no uni#hment could
be imo#ed, i##ued an order terminating hi# deutation in
the "ollege. @e #ubmitted that he wa# ne'er aointed on
deutation, rather he wa# directly aointed to the o#t of
Princial ha'ing been recommended by the Selection
"ommittee and aro'ed by the ni'er#ity. @ence, the
order dated 12.10.2004 wa# wholly without uri#diction.
@e further #ubmitted that although the (th re#ondent
while relie'ing the etitioner had mentioned that hi# lien
wa# retained for a eriod of fi'e year#, but by 'irtue of
=ule 1; of 9S=, the etitioner7# lien in the earlier "ollege
had come to an end on hi# #ub#e+uent aointment in the
4thre#ondent "ollege. @e #ubmitted that the etitioner7#
lien in (thre#ondent "ollege being not in e:i#tence, there
wa# no +ue#tion of the etitioner being re'erted to the (th
re#ondent "ollege. @e further #ubmitted that there i# no
+ue#tion of a'ailing the alternati'e remedy before the
Tribunal, #ince the aeal before the Tribunal can be filed
only again#t a uni#hment imo#ed, wherea# the order
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dated 12.10.2004 cannot be #aid to be any uni#hment
order within the meaning of the !ct, 1/8(. The etitioner
#ubmitted that he thu# ha# no remedy, e:cet to
aroach thi# "ourt.
/. The etitioner, on the +ue#tion of maintainability
of the Writ Petition, contended that the Writ Petition
before thi# "ourt i# maintainable again#t the "ollege,
#ince the "ollege i# affiliated to the ni'er#ity recei'ing
grant from the State and go'erned by the ro'i#ion# of
Section 8( of the !ct, 1/8( and the Statute framed
thereunder. t i# #ubmitted that the State ay# the entire
#alary of the #taff.
10. The etitioner further #ubmitted that he, after
order dated 12.10.2004, could not oin in the fifth
re#ondent "ollege and wa# out of emloyment for a
#ub#tantial eriod, e:cet for two #ell# of eriod when he
obtained an emloyment, i.e., 1- from 1(.12.200; to
2.12.2011 and 2- from 12./.201) to 1).;.2014.
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11. Sri.6oala 9ri#hna 9uru, learned Senior "oun#el
aearing for the fourth re#ondent contended that the
Writ Petition again#t the fourth re#ondent "ollege i# not
maintainable. @e #ubmitted that the fourth re#ondent
"ollege i# a minority in#titution, which ha# a right to
aoint it# Princial and al#o a right to terminate the
Princial. @e #ubmitted that the etitioner7# aointment
wa# in fact a term aointment for fi'e year# only and it
wa# only at the in#tance of the ni'er#ity that the
aointment letter dated )..2000 wa# #ent to the
ni'er#ity, which did not mention any term of the
aointment. @e #ubmitted that the etitioner ha'ing been
aointed only for a eriod of fi'e year# in the "ollege,
there wa# no error in a##ing the order dated 12.10.2004
terminating the deutation of the etitioner. @e further
#ubmitted that e'en if it i# held that the Writ Petition i#
maintainable, the etitioner cannot be allowed
rein#tatement in the "ollege, #ince the contract of #er'ice
cannot be #ecifically enforced by thi# "ourt e:erci#ing
ower under !rticle 22; of the "on#titution of ndia. @e
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#ubmitted that the rayer of the etitioner being
e##entially a rayer #ee
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1). *rom the #ubmi##ion# of learned coun#el for the
artie# and the leading# on record, following are the
i##ue#, which aro#e for con#ideration before the *ull %ench>
- Whether the Writ Petition filed by the
etitioner challenging the order dated
12.10.2004 and #ee
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be an aointment on deutation for a
eriod of fi'e year# terminable at the
in#tance of the management of the fourth
re#ondent "ollegeA
B- Whether the termination of the etitioner
from the o#t of Princial in the manner a#
carried out by the fourth re#ondent i#
contrary to the ro'i#ion# of the !ct, 1/8(
and the Statute# framed thereunderA
B- What relief the etitioner i# entitled to in
the re#ent Writ PetitionA
ISSUE NO.(I) - MAINAINABI7IY
14. The fourth re#ondent "ollege being a minority
in#titution, affiliated to the 5.6.ni'er#ity and #alary of
teacher# and #taff being aid under the direct ayment
#cheme by the 6o'ernment, whether again#t the action
imugned in a Writ Petition i# maintainable under !rticle
22; of the "on#titution i# the +ue#tion to be an#wered.
The *ull %ench udgment on which reliance wa# laced by
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learned coun#el for the management i# Madhavan
Pillai's case (supra). The fact# and ratio of the *ull
%ench i# a# follow#>
1(. n the abo'e ca#e a teacher of a ri'ate "ollege
wa# di#mi##ed ur#uant to di#cilinary en+uiry. The "ollege
wa# affiliated to the 9erala ni'er#ity under the 9erala
ni'er#ity !ct, 1/4. The Statute ro'ide# for rocedure for
imo#ing enalty challenging the di#cilinary action. t wa#
contended that the management it#elf being the accu#er
cannot conduct the en+uiry either directly or indirectly. t
wa# #ubmitted that the action wa# alleged to be in 'iolation
of rincile# of natural u#tice. Cbection wa# rai#ed by the
management that the Writ Petition i# not maintainable. The
Writ Petition wa# di#mi##ed. The matter reached before a
*ull %ench. The *ull %ench ob#er'ed that the "ollege
concerned being urely a ri'ate "ollege, affiliated no doubt
to the ni'er#ity, but the affiliation would not ma
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). 0e may also observe that e see nothing
rong on principle in vesting the disciplinary
poers and poers o# en$uiry in the management
vis a vis the private teachers under its employment.
%n an allied sphere" relating to the poer to ta!e
disciplinary proceedings against teachers o# private
aided institutions" it as ruled by 6athe" 9. o# this
Court *as he then as+ in P. :. 6amoo v. 6anager"
6ooveri 6apala ;. P. chool *1)(
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summarised the position thusB
1'. esides" in order that the third exception
to the general rule that no rit ill lie to $uashan order terminating a contract o# service"albeit illegally" as stated in 1)4 *'+ C: 55 *%: 1)4 C 1(,+ might apply" it isnecessary that the order must be the order o#a statutory body acting in breach o# amandatory obligation imposed by a statute.he college" or the managing Committee in$uestion" is not a statutory body and so theargument o# 6r. etalvad that the case in
hand ill #all under the third exception cannotbe accepted. he contention o# counsel thatthis Court has subsilentio sanctioned the issueo# a rit under rt.&& to $uash an orderterminating services o# a teacher passed by acollege similarly situate in *1)5+ & .C.:. =1'and" there#ore" the #act that the college or themanaging committee as not a statutory bodyas no hindrance to the Aigh Court issuing therit prayed #or by the appellant has no merit
as this Court expressly stated in the 8udgmentthat no such contention as raised in the AighCourt and so it cannot be alloed to be raisedin this Court.
he principle as rea##irmed recently in >aish
College case *%: 1)= C (((+ here the court
observedB
%t seems to us that be#ore an institution can
be a statutory body it must be created by or
under the statute and oe its existence to a
statute. his must be the primary thing hich
has got to be established. Aere a distinction
must be made beteen an institution hich is
not created by or under a statute but is
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governed by certain statutory provisions #or
the proper maintenance and administration o#
the institution. here have been a number o#
institutions hich though not created by or
under any statute have adopted certain
statutory provisions" but that by itsel# is not" in
our opinion" su##icient to clothe the institution
ith a statutory character. %n u!hdev ingh
v. hagatram ardar ingh :aghuvanshi *%:
1)=5 C 1''1 at p. 1'')+ this Court clearly
pointed out as to hat constitutes a statutory
body. %n this connection my ;ord . ?. :ay. C.
9. observed as #ollosB
@ company incorporated under the Companies ct
is not created by the Companies ct but comes into
existence in accordance ith the provisions o# the
ct. %t is not a statutory body because it is not
created by the statute. %t is a body created in
accordance ith the provisions o# the statute.@
%t is" there#ore clear that there is a ell mar!ed
distinction beteen a body hich is created by the
statute and a body hich a#ter having come into
existence is governed in accordance ith the
provisions o# the statute. %n other ords the position
seems to be that the institution concerned must
oe its very existence to a statue hich ould be
the #ountain head o# its poers. he $uestion in
such cases to be as!ed is" i# there is no statute
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ould the institution have any legal existence. %# the
anser is in the negative" then undoubtedly it is a
statutory body" but i# the institution has a separate
existence o# its on ithout any re#erence to the
statute concerned but is merely governed by the
statutory provisions it cannot be said to be a
statutory body.@
%n rya >idya abha" v.
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the college must also be #unctioning as a
statutory body discharging duties under the
%ntermediate Education ct and governed by
the :egulations #ramed thereunder. he
Division ench sought support #or the vie it
had ta!en #rom some provisions in the
Educational Code o# 3ttar Pradesh but as
pointed out by the learned single 9udge" the
Code is only a compilation o# the various
administrative rules and orders relating to
educational institutions in the tate and has
no statutory #orce.
he decision is directly applicable./
1;. *rom the fact# and circum#tance# of the ca#e and
the leading# on record, it i# clear that the Writ Petition
ha# been filed challenging 'iolation of #tatutory ro'i#ion#
by the management. The etitioner contend# that the
action of the management terminating the #er'ice of the
etitioner i# in 'iolation of the ro'i#ion# of the !ct, 1/8(
a# well a# "hater D$B of the 5.6.ni'er#ity Statute#,
1//.
1. There i# no di#ute that #alary of teacher# and
emloyee# i# being aid by the State. The fourth
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does not e$uate the rits that can be issued
in %ndia ith those in England" but only dras
an analogy #rom them. hat apart" Aigh
Courts can also issue directions" orders or
rits other than the prerogative rits. %t
enables the Aigh Court to mould the relie#s to
meet the peculiar and complicated
re$uirements o# this country. ny attempt to
e$uate the scope o# the poer o# the Aigh
Court under rticle && o# the Constitution
ith that o# the English courts to issue
prerogative rits is to introduce the
unnecessary procedural restrictions gron
over the years in a comparatively small
country li!e England ith a unitary #orm o#
7overnment into a vast country li!e %ndia
#unctioning under a #ederal structure. uch a
construction de#eats the purpose o# the article
itsel#./
#$.he term authority/ used in rticle &&"
in the context" must receive a liberal meaning
unli!e the term in rticle 1&. rticle 1& is relevant
only #or the purpose o# en#orcement o# #undamental
rights under rticle '&. rticle && con#ers poer
on the Aigh Courts to issue rits #or en#orcement o#
the #undamental rights as ell as nonH#undamental
rights. he ords any person or authority/ used in
rticle && are" there#ore" not to be con#ined only
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to statutory authorities and instrumentalities o# the
tate. hey may cover any other person or body
per#orming public duty. he #orm o# the body
concerned is not very much relevant. 0hat is
relevant is the nature o# the duty imposed on the
body. he duty must be 8udged in the light o#
positive obligation oed by the person or authority
to the a##ected party. ?o matter by hat means the
duty is imposed" i# a positive obligation exists
mandamus cannot be denied.
#.%n Praga ools Corpn. v. C.. %manual this
Court said that a mandamus can issue against a
person or body to carry out the duties placed on
them by the statutes even though they are not
public o##icials or statutory body. %t as observedB
*CC p. 5()" para B C: p. ==(+
%t is" hoever" not necessary that the person
or the authority on hom the statutory duty is
imposed need be a public o##icial or an o##icial
body. mandamus can issue" #or instance" to
an o##icial o# a society to compel him to carry
out the terms o# the statute under or by hich
the society is constituted or governed and
also to companies or corporations to carry out
duties placed on them by the statutes
authorising their underta!ings. mandamus
ould also lie against a company constituted
by a statute #or the purpose o# #ul#illing public
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#tatutory duty can be comlained in writ roceeding thu#
where allegation of #tatutory 'iolation i# made, Writ
Petition i# clearly maintainable under !rticle 22; of the
"on#titution. !nother recent udgment, which ha# been
referred to by learned coun#el for the management i#
Ra&esh Ahlualia v. State o Puna*E2012-12 S""
))1F, which fully #uort# the #ubmi##ion of the etitioner
that the Writ Petition i# maintainable. *ollowing wa# laid
down in aragrah 12 of the udgment>
12.We have considered the submissions made
by the learned counsel for the parties. In our
opinion, in view of the judgment rendered by this
Court in Andi Mukta adguru hree Muktajee
!andas wami uvarna "ayanti Mahotsav marak
#rust there can be no doubt that even a purely
private body, where the tate has no control over
its internal affairs, would be amenable to the
jurisdiction of the $igh Court under Article %%& of
the Constitution, for issuance of a writ of
mandamus. 'rovided, of course, the private body is
performing public functions which are normally
e(pected to be performed by the tate authorities.)
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1/. ! *ull %ench of the !llahabad @igh "ourt inAle+
Ah&ad A*di v. ,istrict -nspector o Schools and
others 1/; !W" )1 !ll.- ha# al#o held that Writ
Petition again#t a ri'ate management committee i# fully
maintainable, if 'iolation of #tatutory ro'i#ion# i# alleged.
The following wa# ob#er'ed in aragrah# 20 to 2; of the
udgment>
&,. 0e shall no consider the second part o#
the $uestion re#erred to us. hough a rit is
generally issue to the 7overnment or a public
authority or a statutory body" there may be
circumstances in hich a rit may have to be
issued to a person or body hich is not statutory. %n
Prag ools Corporation v. C.>. %nanual B %: 1))
C 1', at page 1',)H1," the upreme Court
observed thusB
n order o# mandamus is" in #orm" a command
directed to a person corporation or an in#erior
tribunal re$uiring him or them to do a particularthing therein speci#ied hich appertains to his or
their o##ice and is in the nature o# a public duty. %t
is" hoever" not necessary that the person or the
authority on hom the statutory duty is imposed
need be a public o##icial or an o##icial body.
mandamus can issue" #or instance" to an o##icial or
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o# a society to compel him to carry out the terms o#
the statute under or by hich the society is
constituted or governed and also to companies or
corporations to carry out duties placed on them by
the statutes authorising their underta!ings.
%n Aatsbury@s ;as o# England *%%% Edition+ >olume
'," at page (&" it is stated that a natural or
individual person might" hen acting in execution o#
a public duty" be a public authority.
&1. %n 6iss
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poers under ordinances o# the 3niversity o# Delhi
regarding attendance o# the students and that
hence the exercise o# such poers as sub8ect to
the 8urisdiction under rticle &&o# the
Constitution.
&'. %n :ameshsarup 7upta v. 6adhya
Pradesh tate Cooperative 6ar!eting Kederation
;td. B %: 1)= 6P 1&5" one o# the $uestions
be#ore a Kull ench o# the 6adhya Pradesh Aigh
Court as hether a rit in the nature o#
6andamus can be issued to a Cooperative ociety
registered under the 6adhya Pradesh Cooperative
ocieties ct" 1),. #ter holding that such a
cooperative society is not a statutory body" the Kull
ench observed thusB
...normally such ocieties *Cooperative ocieties
registered under the provisions o# the 6.P.
Cooperative ocieties ct" 1),+ ill not be
amenable to rit 8urisdiction o# the Aigh Court
except in cases here according to the provisions
o# the tatute or rule or regulations #ramed under
the ct by hich the ociety is governed" there is a
statutory or public duty imposed on it" and the
en#orcement o# hich is being sought.
...
0henever" it is pointed out that any statutory
provisions re$uiring the ociety to act in a
particular manner creates a right or interest in
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#avour o# the person concerned" it ill be
permissible #or such person to approach the Aigh
Court #or see!ing the rit o# mandamus to direct
the statute" and not commit breach o# the same.
hus" e ould li!e to ma!e it clear that the
cooperative ociety ill be amenable to rit
8urisdiction only in cases relating to per#ormance o#
legal obligations and duties imposed by a statute
creating a corresponding legal right in one.
&4. 0e are in respect#ul agreement ith the
a#oresaid enunciation o# la by the Aigh Courts o#
Delhi and 6adhya Pradesh.
&5. ri Ayder also #airly conceded that in the
light o# the pronouncement o# the upreme Court in
Praga ools Corporation@s case *upra+" even i# the
Committee o# 6anagement o# a recognised
%ntermediate College is held to be a nonHstatutory
body" such Committee ill still be amenable to the
rit 8urisdiction o# the Aigh Court" here such
committee is entrusted ith per#ormance o#
statutory duties or con#erred ith statutory poers.
&. s a result o# the #oregoing discussion" our
anser to the $uestion re#erred by learned ingle
9udge is as #ollosB
he Committee o# 6anagement o# an
%ntermediate College is not a statutory body.
?evertheless" a rit petition #iled against it is
maintainable i# such petition is #or
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en#orcement o# per#ormance o# any legal
obligations or duties imposed on such
Committee by a statute./
20. ow we come to the *ull %ench deci#ion in
Madhavan Pillai's case (supra). The *ull %ench held
that the Writ Petition i# not maintainable relying on two
udgment# of the !e: "ourt, namely, Vid+a Ra& v.
S.J../olle0e != 1/2 S" 14(0- and /o&&issioner
1uckno ,ivison v. Pre& 1ata != 1/ S" ))4-.
Vid+a Ra&'s case (supra) wa# a ca#e where the
aellant had filed Writ Petition challenging re#olution of
the 5anaging "ommittee terminating hi# #er'ice# and
raying for an aroriate writ. The learned Single Judge
allowed the Writ Petition holding that the 5anaging
"ommittee acted in 'iolation of the rincile# of natural
u#tice and +ua#hed the re#olution. n the aeal the @igh
"ourt found that the relation#hi between the aellant
and the "ollege wa# that of a #er'ant and ma#ter and the
aellant wa# to file a #uit for damage#, again#t which
udgment, the matter went to the !e: "ourt. Paragrah#
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12 and 1) of the udgment wa# relied on by the *ull
%ench, which are to the following effect>
1&. 0hereas in the case o# Prabha!ar
:am!rishna 9odh v. . ;. Pande" *1)5+ & C:
=1'"the terms and conditions o# service embodied
in clause ( *vi+ *a+ o# the @College Code@ had the
#orce o# la apart #rom the contract and con#erred
rights on the appellant there" here the terms and
conditions mentioned in tatute 151 have no
e##icacy" unless they are incorporated in a contract.
here#ore" appellant cannot #ound a cause o# action
on any breach o# the la but only on the breach o#
the contract. s already indicated" tatute 151 does
not lay don any procedure #or removal o# a
teacher to be incorporated in the contractI so"
clause 5 o# the contract can" in no event" have
event a statutory #lavour and #or its breach" the
appellant@s remedy lay elsehere.
1'.esides" in order that the third exception to
the general rule that no rit ill lie to $uash an
order terminating a contract o# service" albeit
illegally" as stated in 1)4H' C: 55 *%: 1)4 C
1(,+ might apply" it is necessary that the order
must be the order o# a statutory body acting in
breach o# a mandatory obligation imposed by a
statute. he college" or the 6anaging Committee in
$uestion" is not a statutory body and so the
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argument o# 6r. etalvad that the case in hand ill
#all under the third exception cannot be
accepted.he contention o# counsel that this Court
has subHsilentio sanctioned the issue o# a rit under
rticle && to $uash an order terminating services
o# a teacher passed by a college similarly situate in
*1)5+ & C: =1' and" there#ore" the #act that the
college or the managing committee as not a
statutory body as not hindrance to the Aigh Court
issuing the rit prayed #or by the appellant has not
merit as this Court expressly stated in the 8udgment
that no such contention as raised in the Aigh
Court and so it cannot be alloed to be raised in
this Court./
21. n Vid+a Ra&'s case (supra) an earlier
udgment of the !e: "ourt reorted in Pra*hakar
Ra&krishna Jodh's case (supra)wa# cited. t i# rele'ant to
notice the ratio laid down by the !e: "ourt in Pra*hakar
Ra&krishna Jodh's case (supra)" whichwa# the udgment
deli'ered by a four Judge %ench. n the abo'e ca#e, the
aellant wa# wor
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under !rticle 22; of the "on#titution raying for +ua#hing
the termination order. The aellant7# ca#e wa# that
termination of the aellant wa# in 'iolation of the
ro'i#ion# of "lau#e 8'i-a- of the "ollege "ode, hence
the order wa# ultra 'ire# and illegal. The @igh "ourt
reected the alication and held that the #er'ice# of the
aellant were not go'erned by the "ollege "ode, but by
the contract made between the go'erning body and the
aellant. @ence, the remedy under !rticle 22; of the
"on#titution wa# not a'ailable and roer recour#e for the
etitioner wa# to bring the #uit in the "i'il "ourt. !gain#t
the udgment of the @igh "ourt, an aeal wa# filed before
the !e: "ourt. The !e: "ourt noted that the "ollege
"ode ha# been made by the ni'er#ity in e:erci#e of
#tatutory ower and the "ollege "ode ha'e force of law.
The !e: "ourt held that the "ollege "ode confer# legal
right# in fa'our of the teacher and the 'iew ta
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%t is not disputed on behal# o# the respondents
that the College Code/ has been made by the
3niversity in exercise o# statutory poer con#erred
by s.'& and under s.*+ o# the ct. %t is also
conceded on behal# o# the respondents that the
College Code/ is intra vires o# the poers o# the
3niversity contained in s.'& read ith s.*+ o# the
ct. %n our opinion" the provisions o# 2rdinance &,"
otherise called the College code/ have the #orce
o# la. %t con#ers legal rights on the teachers o# the
a##iliated colleges and it is not a correct proposition
to say that the College Code/ merely regulates the
legal relationship beteen the a##iliated colleges
and the 3niversity alone. 0e do not agree ith the
Aigh Court that the provisions o# the College Code/
constitute poer o# management. 2n the contrary
e are o# the vie that the provisions o# the
College Code/ relating to the pay scale o# teachers
and their security o# tenure properly #all ithin the
statutory poer o# a##iliation granted to the
3niversity under the ct. %t is true that Clause = o#
the 2rdinance provides that all teachers o# a##iliated
colleges shall be appointed on a ritten contract in
the #orm prescribed in ch. but that does not
mean that teachers have merely a contractual
remedy against the 7overnment ody o# the
College. 2n the other hand" e are o# opinion that
the provisions o# Clause ( o# the 2rdinance relating
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to security o# the tenure o# teachers are part and
parcel o# the teachers@ service conditions and" as e
have already pointed out" the provisions o# the
College Code/ in this regard are validly made by
the 3niversity in exercise o# the statutory poer and
have" there#ore" the #orce and e##ect o# la. %t
#ollos" there#ore" that the College Code/ creates
legal rights in #avour o# teachers o# a##iliated
colleges and the vie ta!en by the Aigh Court is
erroneous./
The !e: "ourt allowed the aeal and #et a#ide the
udgment of the @igh "ourt and remanded the matter to
the @igh "ourt for in'e#tigating the +ue#tion whether
there wa# 'iolation of rocedure contained in "lau#e 8'i-
a- of the "ollege "ode. Cne of the argument# rai#ed
before the !e: "ourt by the re#ondent wa# that the
go'erning body of the "ollege wa# not a #tatutory body
erforming ublic duty and no writ in the nature of
mandamu# may, therefore, be i##ued. t wa# conceded by
the re#ondent that the #aid obection wa# not re##ed
before the @igh "ourt. The !e: "ourt, thu#, did not
entertain the #aid obection. t i# u#eful to +uote the
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following ob#er'ation made by the !e: "ourt>
.....%t as contended on behal# o# therespondents in the second place that the 7overning
ody o# the College as not a statutory body
per#orming public duties and no rit in the nature
o# mandamus may" there#ore" be issued to the
7overning ody o# the College. 2n behal# o# the
respondents it as conceded that these ob8ections
ere not pressed be#ore the Aigh Court. 0e are"
there#ore" unable to entertain these preliminary
arguments at this stage and they must be overH
ruled./
22. The !e: "ourt in the abo'e udgment clearly
laid down that in ca#e where there i# #tatutory 'iolation in
terminating #er'ice# of the teacher, the Writ Petition can
be entertained under !rticle 22; of the "on#titution. The
!e: "ourt #et a#ide the udgment of the @igh "ourt
di#mi##ing the Writ Petition a# not maintainable and
remanded the matter for fre#h con#ideration by the @igh
"ourt.
2). Vid+a Ra&'s case (supra) wa# al#o a ca#e of
termination of #er'ice# of a teacher by the 5anaging
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"ommittee. The termination wa# challenged on the
ground that the 5anaging "ommittee acted in 'iolation of
rincile# of natural u#tice. The learned Single Judge had
allowed the Writ Petition again#t which aeal wa# filed.
The &i'i#ion %ench allowed the aeal and di#mi##ed the
Writ Petition again#t which order the matter wa# ta
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statutes and ordinances have the #orce o# la. %n
support o# this" counsel relied upon the decision o#
this Court in Prabha!ar :ama!rishna 9odh v. . ;.
Pande" *1)5+ & C: =1'. he appellant be#ore this
Court in that case as a teacher in a college
a##iliated to the 3niversity o# augar and managed
by the 7overning ody established under the
provisions o# the relevant ordinance made under
the 3niversity o# augar ct. Certain charges ere
#ramed against the appellant by the Principal o# the
College and he as as!ed to submit his
explanation. he appellant in his explanation
denied all the charges and re$uested #or particulars
on hich one o# the charges as based. he
particulars ere not supplied and the 7overning.
ody terminated his services ithout holding any
en$uiry. he appellant moved the Aigh Court under
rticle && o# the Constitution #or a rit $uashing
the order o# the 7overning ody and #or his
reinstatement. Ae contended that the 7overning
ody had made the order in violation o# the
provisions o# 2rdinance &," otherise called the
@College Code@" #ramed under section '& o# the
3niversity o# augar ct read ith section *+ o#
that ct. Clause ( *vi+ *a+ o# the college Code
provided that the 7overning body o# the college
shall not terminate the services o# a con#irmed
teacher ithout holding an en$uiry and ithout
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giving him an opportunity o# de#ending himsel#. he
Aigh Court held that the conditions o# service o# the
appellant ere governed not by the @College Code@
but by the contract made beteen the 7overning
ody and the appellant under clause = o# the
College CodeHhich stated that all teachers o# the
college shall be appointed under a ritten contract
in the #orm prescribedHthat the provisions o# the
@College Code@ ere merely conditions prescribed
#or a##iliation o# colleges and that no legal rights
ere created by the @college Code@ in #avour o# the
teachers o# the a##iliated Colleges as against the
7overning ody. he Aigh Court" there#ore"
dismissed the petition. %n appeal to this Court it
as held that the @College Code@ had the #orce o#
la and that it not merely regulated the legal
relationship beteen the a##iliated colleges and the
3niversity but also con#erred legal rights on the
teachers o# a##iliated colleges. he Court #urther
said.
%t is true that Clause = o# the 2rdinance
provides that all teachers o# a##iliated colleges shall
be appointed on a ritten contract in the #orm
prescribed in ch but that does not mean that
teachers have merely a contractual remedy against
the 7overning ody o# the College. 2n the other
hand" e are o# opinion that the provisions o#
Clause ( o# the 2rdinance relating to security o# the
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tenure o# teachers are part and parcel o# the
teachers@ service conditions........
0hen once this Court came to the conclusion that
the College Code@ had the #orce o# la and
con#erred rights on the teachers o# a##iliated
colleges" the right to challenge the order
terminating the services o# the appellant" passed in
violation o# clause ( *vi+ *a+ o# the College Code in a
proceeding under rticle && #olloed as the night
the day/ and the #act that the appellant had
entered into a contract as considered as
immaterial./
The ob#er'ation of the !e: "ourt in the abo'e aragrah
clearly cull# out the ratio that if the "ourt come# to the
conclu#ion that the "ollege "ode had the force of law and
conferred right# on the teacher# of affiliated "ollege#, the
right to challenge the order terminating #er'ice# of the
aellant, a##ed in 'iolation of "lau#e 8'i-a- of the
"ollege "ode in a roceeding under !rticle 22; of the
"on#titution followed 7a# the night the day7. Thu#, the ratio
laid down by the !e: "ourt in four Judge %ench7#
udgment in Pra*hakar Ra&krishna Jodh's case
(supra) wa# followed. The !e: "ourt further in
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Vid+a Ra&'s case (supra) ha# laid down that the term#
and condition# of #er'ice in Statute 1(1 ha'e not been
incororated in the agreement, they ha'e no force of law.
The following wa# laid down by the !e: "ourt in
aragrah# 10, 11 and 12 of the udgment>
1,. %n the case in hand" the position is
entirely di##erent. he relevant statutes
governing this case are statutes 151" 15& and
15'" #ramed under the provisions o# the
;uc!no 3niversity ct" 1)&,. tatute 151
provides that teachers o# an ssociated College
including the principal shall be appointed on
ritten contract and that the contract shall
inter alia provide the conditions mentioned
therein in addition to such other conditions not
inconsistent ith the ct and the tatutes as
an ssociated College may include in its on
#orm o# agreement. hen the conditions as
regards salary" age o# retirement" etc." are
enumerated. he statute then goes on to
speci#y the grounds on hich a teacher@s
services can be terminated. tatute 15& states
that the #orm o# agreement to be adopted by
each college shall be approved by the
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executive Council be#ore it is put in #orce.
tatute 15' provides #or a #orm o# agreement
hich shall serve as a model. %t may be noted
that statute 151 does not provide #or any
particular procedure #or dismissal or removal o#
a teacher #or being incorporated in the
contract. ?or does the model #orm o# contract
lay don any particular procedure #or that
purpose. he appellant had entered into an
agreement hen he as employed in the
college. Clause 5 o# the agreement provided
thatB
the period o# probation shall be one year
unless extended by the 6anaging Committee
and the College may at any time during the
said period o# probation put an end to this
engagement" or i# service shall continue
beyond the said term" at any time therea#ter"
dispense ith the services o# the said ;ecturer
ithout notice" i# the 6anaging Committee o#
the said College is satis#ied that it is necessary
to remove the said ;ecturer #or misconduct"
insubordination or habitual neglect o# duty on
the part o# the said ;ecturer or in case any o#
the conditions herein speci#ied have been
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bro!en by the said ;ecturer provided that an
opportunity is given to him by the said
6anaging Committee to give his explanation
be#ore a decision is arrived at.
11.2n a plain reading o# statute 151" it is
clear that it only provides that the terms and
conditions mentioned therein must be
incorporated in the contract to be entered into
beteen the college and the teacher
concerned. %t does not say that the terms and
conditions have any legal #orce" until and
unless they are embodied in an agreement. o
put it in other ords" the terms and conditions
o# service mentioned in tatute 151 have
proprio vigore no #orce o# la. hey become
terms and conditions o# service only by virtue
o# their being incorporated in the contact.
0ithout the contract" they have no vitality and
can con#er no legal rights.
1&. 0hereas in the case o# Prabha!ar
:am!rishna 9odh v. . ;. Pande" *1)5+ & C:
=1'"the terms and conditions o# service
embodied in clause ( *vi+ *a+ o# the @College
Code@ had the #orce o# la apart #rom the
contract and con#erred rights on the appellant
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there" here the terms and conditions
mentioned in tatute 151 have no e##icacy"
unless they are incorporated in a contract.
here#ore" appellant cannot #ound a cause o#
action on any breach o# the la but only on the
breach o# the contract. s already indicated"
tatute 151 does not lay don any procedure
#or removal o# a teacher to be incorporated in
the contractI so" clause 5 o# the contract can"
in no event" have event a statutory #lavour and
#or its breach" the appellant@s remedy lay
elsehere./
24. !fter ma
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the third e:cetion to the general rule that no writ will lie
to +ua#h an order terminating a contract of #er'ice might
aly, and for that it i# nece##ary that the order mu#t be
the order of a #tatutory body acting in breach of a
mandatory obligation imo#ed by a Statute. The !e:
"ourt held that the "ollege or 5anaging "ommittee in
+ue#tion i# not a #tatutory body and #o, the argument of
coun#el for the aellant that the ca#e in hand will fall
under the third e:cetion cannot be acceted. n the
abo'e conte:t, the contention of 5r.Setal'ad, coun#el for
the aellant that the fact that the "ollege or the
5anaging "ommittee wa# not a #tatutory body wa# no
hindrance to the @igh "ourt i##uing a writ and an
ob#er'ation wa# noted in aragrah 1) of the udgment in
Vid+a Ra&'s case (supra) and it wa# ob#er'ed that the
#aid contention ha# no merit, #ince the !e: "ourt in
Pra*hakar Ra&krishna Jodh's case (supra) had
e:re##ly #tated that no #uch contention wa# rai#ed in the
@igh "ourt and #o, it cannot be rai#ed. The fact that in
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Pra*hakar Ra&krishna Jodh's case (supra) the
obection rai#ed by the re#ondent in that Writ Petition
regarding entertainability of Writ Petition again#t a non
#tatutory body wa# not allowed to be rai#ed, cannot lead
to the conclu#ion that the !e: "ourt acceted the #aid
obection a# a 'alid obection to entertainability of the
Writ Petition.
2(. n 'iew of the abo'e, it i# clear that the ratio of
four Judge udgment in Pra*hakar Ra&krishna Jodh's
case (supra) that a Writ Petition can be entertained at
the in#tance of a teacher of a ri'ate "ollege affiliated to
the "ollege, who#e #er'ice condition# are go'erned by a
#tatutory ro'i#ion #till hold# good and no tin
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2;. The #econd ca#e relied on by the *ull %ench i#
Pre& 1ata's case (supra), where #er'ice# of a teacher
in %a#ic Section of the "ollege wa# terminated. t wa# held
by the Sureme "ourt that %a#ic Section i# not a art of
recogniGed in#titution. =ecogniGed in#titution i# go'erned by
the #tatutory ro'i#ion# of the ttar Prade#h ntermediate
3ducation !ct, 1/1 and the =egulation framed thereunder.
t wa# held that #ince the %a#ic Section i# not a art of the
recogniGed in#titution, it wa# not go'erned by any #tatutory
rule. Cn that ba#i# the Sureme "ourt held that the Writ
Petition will not lie. t i# u#eful to +uote aragrah ) of the
udgment, which i# to the following effect>
'. %t seems clear #rom the provisions set out
above that they all relate to recognised institutionsI
recognition is by the oard #or the purpose o#
preparing candidates #or admission o# the oard@s
examination" and oard means the oard o# Aigh
chool and %ntermediate Education. he basic
section o# school cannot there#ore" be part o# a
recognised institution. 0e are unable to agree ith
the vie ta!en by the Division ench o# the Aigh
Court that the basic section is an integral part o#
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the institution and there#ore" must be governed by
the provisions o# the %ntermediate Education ct"
1)&1. school by extending its operation to #ields
beyond that covered by the ct cannot extend the
ambit o# the ct to include in its seep these ne
#ields o# education hich are outside its scope. he
case o# the appellants on this point appears #rom
this counterHa##idavit #iled by them in anser to the
rit petition. %t is said that the college is running
the asic ection independently and is neither
registered by the 7overnment or a##iliated by any
local body and neither any grant in aid is being
ta!en by the department to run this section
accordingly.he college has its on rules and
regulations to conduct the asic ection. %t is not
correct to thin! that since the college has to have a
committee o# management as re$uired by ection
1H" a managing committee that loo!s a#ter the
a##airs o# the asic ection o# the college must also
be #unctioning as a statutory body discharging
duties under the %ntermediate Education ct and
governed by the :egulations #ramed thereunder.
he Division ench sought support #or the vie it
had ta!en #rom some provisions in the Educational
Code o# 3ttar Pradesh but" as pointed out by the
learned single 9udge" the Code is only a compilation
o# the various administrative rules and orders
relating to educational institutions in the tate and
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has no statutory #orce. Kor the reasons stated
above" it must be held that the appellants ere not
discharging any statutory #unction in ma!ing the
impugned orders a##ecting the respondent. he
appeal is accordingly alloed" the 9udgment o# the
Division ench is set aside and that o# the ingle
9udge restored. here ill be no order as to costs./
2. The afore#aid two udgment# of the Sureme "ourt
did not lay any ratio that e'en if there i# a #tatutory breach,
Writ Petition will not lie. The *ull %ench relied on a ratio in
tho#e two udgment#,which wa# not there. *urther, the
udgment of the !e: "ourt, a# noted abo'e in Andi
Mukta SMVSSJMS Trust's case #ura- and Ra&esh
Ahlualia's case (supra) and Pra*hakar Ra&krishna
Jodh's case (supra) are clearly alicable in the re#ent
ca#e which lay# down that a Writ Petition i# maintainable if
there i# 'iolation of #tatutory obligation. n 'iew of the
udgment# of the !e: "ourt, a# noted abo'e, the Writ
Petition i# clearly maintainable and we are of the 'iew that
the *ull %ench udgment of thi# "ourt in Madhavan
Pillai's case (supra) cannot be followed in 'iew of the
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clear ronouncement laid down by the !e: "ourt a# noted
abo'e.
28. The #er'ice condition# of a Princial and teacher#
of an affiliated "ollege are go'erned by the #tatutory
ro'i#ion#. The Writ Petition, at the in#tance of #uch
teacher or Princial, i# thu#, clearly maintainable. We,
thu#, an#wer ##ue o. in fa'our of the etitioner.
I++5 No+.II, III % I89
2/. ##ue o#., and B being connected, are ta
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6anager ith #ull bioHdata" attested copies o#
certi#icates" passport si-e photograph and
contact telephone number./
)0. The ad'erti#ement clearly indicate# that
alication# were in'ited a# the aointment on the o#t
of Princial wa# by direct recruitment. 3:hibit P2 i# the
reort of the Staff Selection "ommittee, which ha# been
brought on record. 3:hibit P2 clearly indicate# that the
Selection "ommittee wa# con#tituted in accordance with
the Statute, i.e., "hater D$B of the 5.6.ni'er#ity
Statute#, 1//. The Selection "ommittee con#i#ted of two
6o'ernment rere#entati'e# and one ni'er#ity
rere#entati'e. The #aid #election wa# forwarded to the
ni'er#ity for aro'al and the ni'er#ity, 'ide order
dated )1.).2001, ha# aro'ed the aointment of the
etitioner in the retirement 'acancy of one
Prof.9.5.Barghe#e. The aointment letter wa# i##ued to
the etitioner on )..2000. The ad'erti#ement,
roceeding# of the Selection "ommittee, aointment
order a# well a# aro'al by the ni'er#ity clearly ro'e
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that the aointment of the etitioner to the o#t of
Princial wa# made by direct recruitment in a 'acancy
cau#ed by retirement. The aointment of the etitioner
wa# not on deutation. !ointment on foreign #er'ice,
i.e, deutation can be made with the aro'al of the State
6o'ernment a# er the #tatutory ro'i#ion#. *ollowing i#
the rele'ant ro'i#ion# of the Statute, 1// in thi#
conte:t>
'1. 4orei0n ServiceB *1+ %t shall be
competent #or the Educational gency to
depute a teacher to #oreign service as laid don
in Chapter G% o# Part % o# the
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ni'er#ity had obection again#t any limited aointment.
*rom the aer#, which ha'e been forwarded by the
management to the ni'er#ity, it i# clear that the
aointment wa# not for a eriod of fi'e year# and the
ni'er#ity had granted aro'al on a retirement 'acancy
without there being any limitation of tenure.
)2. The !ct and the Statute ro'ide a rocedure for
filling u of a #ub#tanti'e 'acancy by direct recruitment.
The #ub#tanti'e 'acancy i# filled u by direct recruitment.
!ccording to the rocedure re#cribed in the Statute,
aointment to the #ub#tanti'e 'acancy under the !ct
and Statute i# not an aointment on any contract or
aointment fi:ed for a limited eriod. The aointment
made to a #ub#tanti'e 'acancy cannot be claimed to be
made for any fi:ed eriod, #ince ermitting the
management to ma
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The Statute doe# not contemlate any fi:ed term of
aointment to a #ub#tanti'e 'acancy, hence, the
#ubmi##ion of learned coun#el for the management that
aointment of the etitioner for a eriod of fi'e year#
cannot be acceted, nor the #ubmi##ion that the
aointment wa# on deutation can be acceted.
)). ow, we come to the order dated 12.10.2004, by
which the etitioner7# aointment a# Princial ha# been
terminated. t will be u#eful to e:tract the entire order
dated 12.10.2004, which i# to the following effect>
?Mou ere appointed as Principal o#t.6ary@s College" 6anarcaud" 6alam P.2."
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)(. !# noted abo'e, the management initiated a
di#cilinary en+uiry again#t the etitioner and after
receit of the en+uiry reort, the management i##ued a
#how cau#e notice to the etitioner, where it roo#ed two
uni#hment#, i.e., 1- remo'al from #er'ice and 2-
reduction to the lower o#t. t i# u#eful to +uote aragrah
2 of the letter dated )./.2004 of the management, which
i# to the following effect>
t the outset itsel# % ma!e it clear that
there is no ambiguity or in#irmity in the sho
cause notice issued by me as per proceedings
dated 1=.(.&,,4. he punishment proposed in
my proceedings dated 1=.(.&,,4 is either *1+
removal #rom service or *&+ reduction to the
loer post o# election 7rade ;ecturer in
English in the Department o# English in
t.6ary@s College" 6anarcaud. here is no
proposal #or a third punishment as rongly
assumed by you in the sho cause notice.
sho cause notice" proposing more than one
punishment in the alternative" is legally
permissible. %n the case on hand" the
disciplinary authority is o# the opinion that
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charges proved in the en$uiry merit imposition
o# either o# the to ma8or punishments
proposed in the sho cause notice. Mou are #ree
to sho cause against the punishment
proposed to be imposed in the alternative.
Proposing more than one punishment in the
alternative does not ma!e the proposed action
any the less de#initeI it gives you a better
opportunity to sho cause against each o# the
ma8or punishments proposed to be imposed on
you in the alternative.I
);. !lthough notice wa# gi'en roo#ing uni#hment,
after the etitioner #ubmitting rely to the #how cau#e
notice dated 22./.2004, the management which wa#
entitled to a## any enalty order again#t the etitioner,
rather a##ed an order abrutly terminating the
aointment a# if he i# on deutation. t i# rele'ant to note
that the etitioner wa# al#o a#
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"ollege. t i# further rele'ant to note the ro'i#ion# of
Section ;), which deal# with di#cilinary ower# of
3ducational !gency o'er teacher# of ri'ate college#.
Section ;);- refer# to enaltie#, which can be imo#ed.
Section ;);- of the !ct, 1/8( i# +uoted a# follow#>
'. Disciplinary poers o# Educational
gency over teachers o# private Colleges.H
xx xx xx
*+ ny teacher aggrieved by an order
imposing on him any o# the #olloing
penalties" namelyBH
*a+ ithholding o# incrementI
*b+ recovery #rom payo# any pecuniary
loss caused to the institution or the monetary
value e$uivalent to the amount o# increment
ordered to be ithheldI
*c+ reduction to a loer ran! in the
seniority list or to a loer grade or postI and
*cc+ removal #rom servciceI
*ccc+ compulsory retirement #rom service.
*d+ dismissal #rom service"
may ithin sixty days #rom the date on
hich a copy o# such order is served on him"
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appeal to the ppellate ribunal on any one or
more o# the #olloing rounds" namelyBH
*i+ that there is ant o# good #aith in
passing the orderI
*ii+ that the order is intended to victimise
the appellantI
*iii+ that in passing the order" the
educational agency has been guilty o# a bsic
error or violation o# the principles o# natural
8usticeI
*iv+ that the order is not based on any
material or is perverseB
Provided that the ppellate ribunal may
admit an appeal presented a#ter the expiration
o# the said period o# sixty days i# it is satis#ied
that the appellant had su##icient cause #or not
presenting the appeal ithin that period./
)). "hater 4(, Part &, Statute ) enumerate the
enaltie# which can be imo#ed in the following manner>
='. PenaltiesB he #olloing Penalties
may" #or good and su##icient reasons and as
hereina#ter provided" be imposed on teachers
o# private college" namelyBH
*i+ CensureI
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*ii+ 0ithholding o# increments or
promotionI
*iii+ *a+ :ecovery #rom pay o# the hiole or
part o# any peculiary loss caused to the private
college by his negligence or breach o# ordersI
*b+ recovery #rom pay to the extent
necessary o# the monetary value e$uivalent to
the amount o# increments ordered to be
ithheld here such an order cannot be given
e##ect to./
). nder #ubH#ection ;- of Section ;) of the !ct,
1/8(, it i# ro'ided that again#t an order imo#ing
enalty, a teacher i# entitled to file aeal before the
!ellate Tribunal within ;0 day#. The order dated
12.10.2004 i# not co'ered with any of the enaltie# a#
enumerated in Section ;);-, hence, the order dated
12.10.2004 i# beyond the ur'iew of enaltie# a#
contemlated by Section ;);- and Statute ) of chater
4( of Statute..
)8. !# ob#er'ed abo'e, the etitioner7# aointment
not being on deutation, treatment of the aointment of
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the etitioner a# deutation and termination of the
deutation i# wholly without uri#diction and beyond the
ower of the management. The management could ha'e
ta
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nor the ro'i#ion# of Section ;);- #hall come in the way
of the etitioner aroaching thi# "ourt for e:erci#e of
uri#diction under !rticle 22; of the "on#titution. We, thu#,
hold the order dated 12.10.2004 un#u#tainable and #et
a#ide the #aid order.
ISSUE NO.8
40. ow, we come to the la#t i##ue a# to what relief
the etitioner i# entitled. The #ubmi##ion, which ha# been
re##ed by the learned Senior "oun#el aearing for the
management i# that the (th re#ondent being not a
#tatutory authority, thi# "ourt, in e:erci#e of writ
uri#diction, cannot direct rein#tatement of the etitioner
in #er'ice. =eliance ha# been laced on the !e: "ourt
udgment in 56ecutive /o&&ittee3 Vaish ,e0ree
/olle0e and others v. 1aksh&i arain != 1/;
S" 888-. The #aid ca#e aro#e out of a #uit filed by the
re#ondent #ee
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#ee
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41. $earned coun#el for the management ha# further
#ubmitted that minority in#titution ha# right to #elect it#
Princial, hence the right of minority in#titution to terminate
the #er'ice# of it# teacher# ha# al#o to be conceded. There
i# no di#ute that in the field of #election of a teacher or
Princial, minority in#titution ha# certain di#cretion. %ut,
#election of teacher# and Princial of minority in#titution,
which i# recei'ing aid from the 6o'ernment and affiliated
to the ni'er#ity, ha# to be regulated according to the
ro'i#ion# and Statute a# noted abo'e. 5inority in#titution
cannot claim any unfettered right to ma
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the "ollege that minority in#titution ha# freedom and
di#cretion in terminating the #er'ice# of teacher# and
Princial, who#e aointment# ha'e been aro'ed by the
ni'er#ity.
42. The etitioner7# #er'ice wa# terminated by letter
dated 12.10.2004. The etitioner wa# aid #alary till
Setember, 2004. !lthough a# er order dated
12.10.2004, the etitioner wa# re'erted a# $ecturer in the
(thre#ondent "ollege, the etitioner could not oin there,
#ince hi# lien in the earlier "ollege ha# been terminated
by =ule 1; of 9S=. =ule 1; 9S= i# a# follow#>
1. 3nless in any case it be otheriseprovided in these rules" an o##icer on substantiveappointment to any permanent post ac$uires a lienon that post and ceases to hold any lien previouslyac$uired on any other post./
4). The etitioner wa# out of emloyment after hi#
termination from fourth re#ondent "ollege. The etitioner
candidly admitted during #ubmi##ion that during all the#e
eriod# he could not recei'e any aroriate emloyment,
e:cet for two brief eriod#, i.e., 1(.12.200; to 2.12.2011
and 2- from 12./.201) to 1).;.2014 nine month#-.
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fourth re#ondent to ma