maintainability of writ petition

8/10/2019 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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WP(C).36422/04 2

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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WP(C).36422/04 3

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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WP(C).36422/04 4

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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WP(C).36422/04 5

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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WP(C).36422/04 6

#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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WP(C).36422/04 13

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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WP(C).36422/04 14

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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WP(C).36422/04 15

#ubmitted that the rayer of the etitioner being

e##entially a rayer #ee


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WP(C).36422/04 16

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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WP(C).36422/04 17

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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WP(C).36422/04 18

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


22/74

WP(C).36422/04 19

). 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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WP(C).36422/04 20

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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WP(C).36422/04 21

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


25/74

WP(C).36422/04 22

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.


26/74

WP(C).36422/04 23

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


27/74


28/74


29/74

WP(C).36422/04 26

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


30/74

WP(C).36422/04 27

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


31/74


32/74

WP(C).36422/04 29

#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.)


33/74

WP(C).36422/04 30

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


34/74

WP(C).36422/04 31

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


35/74

WP(C).36422/04 32

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


36/74

WP(C).36422/04 33

#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


37/74

WP(C).36422/04 34

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#


38/74

WP(C).36422/04 35

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


39/74

WP(C).36422/04 36

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


40/74

WP(C).36422/04 37

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


41/74

WP(C).36422/04 38

%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


42/74

WP(C).36422/04 39

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


43/74

WP(C).36422/04 40

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


44/74

WP(C).36422/04 41

"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


45/74

WP(C).36422/04 42

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


46/74

WP(C).36422/04 43

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


47/74

WP(C).36422/04 44

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


48/74

WP(C).36422/04 45

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


49/74

WP(C).36422/04 46

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


50/74

WP(C).36422/04 47

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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WP(C).36422/04 53

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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WP(C).36422/04 54

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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WP(C).36422/04 55

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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WP(C).36422/04 57

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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WP(C).36422/04 58

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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WP(C).36422/04 60

)(. !# 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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WP(C).36422/04 61

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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WP(C).36422/04 62

"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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WP(C).36422/04 63

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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WP(C).36422/04 64

*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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WP(C).36422/04 65

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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WP(C).36422/04 66

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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WP(C).36422/04 67

#ee


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WP(C).36422/04 68

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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WP(C).36422/04 69

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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WP(C).36422/04 71

fourth re#ondent to ma

maintainability of writ petition

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