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RAMJAN versus BHOLA & OTHERS

High Court of Judicature at Allahabad

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Ramjan v. Bhola & Others - WRIT - C No. 2084 of 2005 [2005] RD-AH 2847 (14 September 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Rakesh Tiwari, J

This writ petition has been filed for issuance of writ in the nature of mandamus directing the respondents not to interfere with the peaceful working of the petitioner in Janta Uchchatar Madhyamik Vidyalaya, Athilapura Rasra, Ballia on the post of Head Master.

The brief facts of the case are that Janta  Vidyalaya, Athilapura, Ballia was a recognized institution.  It was upgraded in 2001 and is known as Janta Uchchatar Madhyamik Vidyalaya, Athilapura Rasra, Ballia. It is recognized school and the provisions of U.P. Intermediate Act , 1921 are applicable to the institution.  

The petitioner was appointed as Assistant Teacher on 1.7.1977. He claims that he was promoted as Head Master of the Junior High School in 1990.  A true copy of the order of promotion, on which he has based his claim, dated 25.7.1990 ( appended as Annexure 2 to the writ petition) is as under :-

" vkns'k la0      fnukad 25&7&90

Jh 'ks"k cgknqj flag] l0v0

Turk fo/kky;] vfBykiqjk]

VfByk] cfy;k

vkidh fu;qfDr iz/kkuk/;kid ds in ij fnukad 1&8&90 ls Jh diwj pUn 'kekZ ds fuyEcu ls gq, fjDr in ij fdlh LFkk;h iz/kkuk/;id dh O;oLFkk rd ;k Jh diwj pUn 'kekZ dks vius in ij okil vkus rd tks Hkh iwoZ esa iM`s rd dh tkrh gS A

vki d`Ik;k mDr in dk dk;ZHkkj rqjUr xzg.k djsa rFkk dk;ZHkkj xzg.k dh lwpuk eq>s rFkk ftyk csfld f'k{kk vf/kdkjh dksa nsa A

                                                                               

                             Hkonh;

                          g0 pUnznhi flag

                                            izcU/kd                                                    

                  Tkurk fo/kky; vfBykiqjk]vfByk] cfy;k"                                                                                              

                                                                   

It is apparent from the perusal of the aforesaid order dated 25.7.1990 that the petitioner was not promoted as regular Head Master of the Junior High  after facing the selection committee constituted under Rule 9 of the U.P. Junior High school Recruitment Rules, 1978 but was appointed in stopgap arrangement due to suspension of Sri Kapoor Chand Sharma, respondent no. 4 by the Manager of the School. The appointment of the petitioner- Shesh Bahadur Singh on the post of Head Master (ad hoc) and was conditional i.e., till permanent arrangement is made or till Sri Kapoor Chand Sharma is reinstated on his post.

It appears from the record of connected Civil Misc. Writ No. 23957 of 1997 that the respondent no. 3- Sri Kapoor Chand Sharma was suspended vide order dated 16.7.1990. Consequently, he was served with a charge sheet on 25.7. 1990 and an additional charge sheet dated 1.12.1990 in respect of certain chages.  Sri Kapoor Chandra Sharma filed Writ Petition No. 30633 of 1990 before this Court challenging the order of suspension which was stayed by the Court on 23.8.1990. The Basic Siksha Adhikari Ballia also did not accord approval to the order of suspension dated 16.7.1990 of Sri Kapoor Chand Sharma by the Committee of Management. The writ petition was thereafter dismissed vide order dated 25.11.1992.  The Committee of Management thereafter resolved to dismiss respondent no. 3 from service and accordingly dismissed him/ The order of dismissal was also disapproved by the Basic Siksha Adhikari Ballia vide order dated 17.9.1993. Aggrieved, the Committee of Management filed writ petition no. 36898 of 1993 challenging the validity and correctness of order dated 17.9.93.  The court by interim order dated 1.10.93 stayed the operation of the order dated 17.9.93.  The writ petition, however,was ultimately dismissed vide judgement dated 19.9.94 on ground of alternate remedy available to the petitioner under Rule 12 of U.P. Recognized Basic Schools (Recruitment and Condition of Service of Teachers) Rules, 1975 to the Board. Aggrieved the Committee of Management filed Special Appeal  against judgment dated 19.9.94 which was also dismissed.

Pursuant to the dismissal of Special appeal the Committee of Management filed appeal before the Director of Education (Basic), Nishatganj, Lucknow in pursuance of the judgment dated 19.9.1994 in Civil Misc. Writ No. 36898 of 1993. After hearing both the parties, the Director of Education (Basic) dismissed the appeal filed by the Committee of Management by judgment dated 10.7.1997 recording a finding that dismissal of Sri Kapoor Chand Sharma was due to bad relation between the management and the Manager and upheld the order of the Basic Siksha Adhikari by which approval was not accorded to the Committee of Management in respect of dismissal of Sri Kapoor Chand Sharma..  Aggrieved by the order and judgment dated 10.7.1997 of the Director of Education (Basic), the Committee of Management has come up in writ petition no. 23957 of 1997 for quashing orders dated 17.9.1993 and 10.7.1997 which is connected and listed along with the present writ petition no. 1084 of 2005 today for hearing.

It  appears from record of connected Civil Misc. Writ No. 23957 of 1997  filed by the Committee of Management Janta Vidyalaya, Athilapura Rasra, Ballia that an order dated 22.10.1997 had wrongly been passed for payment of salary to the petitioner , i.e. Committee of Management, Hence when Respondent no. 3 went to join his duties in pursuance of the aforesaid order he was not permitted to join by the Committee of Management. Sri Kapoor Chand Sharma then approached the Basic Shiksha Adhikari, Ballia who vide letter dated 15.7.2004 informed him that as per order dated 22.10.1997 there appears to be no question for reinstatement of Committee of Management, hence the order may be got corrected and certified copy of the corrected order be filed for further action in the matter:-

"   izs"kd

       ftyk csfld f'k{kk vf/kdkjh

       cfy;k

lsok esa

       Jh dewj pUn 'keZk]

        vkRet Jh foU/;kpy 'kekZ]

        fuoklh xzke o iksLV cuoj ftyk cfy;k

Ik=kad 1058/2004&05  fnukad 15&7&2004

fo"k; % ekuuh; mPp U;k;ky; esa ;ksftr ;kfpdk la[;k 23957/97 izcU/k lfefr turk fo/kky; vfBykiqjk cfy;k cuke f'k{kk funs'kd ( cs0 )  fu'kkrxat y[kum rFkk vU; esa ikfjr vkns'k fnukad 22&10&97 dh vuqikyu lqfuf'pr djusa ds laca/k esa

egksn;]

    mDr U;k;ky;kns'k dk vuqikyu lqfuf'pr djusa ls lacaf/kr vkids izR;kosnu fnukad jfgr tks bl dk;kZy; esa fnukad 17&6&2004 dks izkIr gqvk gS ds lanHkZ esa dguk gS fd d`Ik;k mDr U;k;ky;kns'k dk vuqikyu vc rd lqfuf'pr u fd;s tkus dh fLFkfr Li"V djusa dk d"V djsa A

mDr ds vfrfjDr mDr U;k;ky;kns'k esa vkidks rhu lIrkg ds Hkhrj izfrokn 'kiFk Ik= nkf[ky djusa ds fy, vknsf'kr fd;k x;k gS] d`Ik;k vius Lrj ls ekuuh; U;k;ky; esa nkf[ky izfrokn 'kiFk Ik= dh ,d izekf.kr izfr bl dk;kZy; dks miyC/k djkusa dk d"V djsaA lkFk gh mDr ;kfpdk dh orZeku fLFkfr ds laca/k esa ekuuh; mPp U;k;ky; ls lwpuk izi= ij lwpuk izkIr dj bl dk;kZy; dks izLrqr djusa dk d"V djsa fd mDr ;kfpdk vkt Hkh ekuuh; U;k;ky; ds fopkjk/khu gS A

mDr ds vfrfjDr mDr U;k;ky;kns'k esa ;g vknsf'kr fd;k x;k gS fd vxys vkns'k rd ;kph dks lsok esa nks lIrkg ds Hkhrj cgky fd;k tk;] mDr ;kfpdk fo/kky; dk izcU/k lfefr Onkjk nkf[ky gS A izcU/k lfefr dks iqu% cgky djusa dk dksbZ vkSfpR; ugha gS A vr% d`Ik;k ;g crkusa dk d"V djsa fd mDr vkns'k esa mfpr la'kks/ku gsrq vkidh vksj ls dksbZ izkFkZuk Ik= ekuuh; U;k;ky; ds le{k izLrqr fd;k x;k gS vkSj ekuuh; U;k;ky; Onkjk mDr vkns'k esa dksbZ la'kks/ku fd;k x;k gS ? ;fn gkW rks la'kksf/kr vkns'k dh izfr bl dk;kZy; dks miyC/k djkus dk d"V djsa rkfd vfxze dk;Zokgh lEHko gks lds A

                            Hkonh;

                      g0 jktsUnz izlkn ;kno                                  

                  ftyk csfld f'k{kk vf/kdkjh cfy;k"                                  

On receipt of the letter dated 15.7.2004, the petitioner realized the mistake in the order dated 22.`0.97 and moved the High Court by means of correction application requesting for appropriate correction of order i.e., in place of direction of reinstatement of petitioner, respondent may be substituted and/or corrected. . The orderdated 22.10.97 was corrected on 8.11.2004 as under :-

" Hon'ble Sudhir Narain, J

     Sri M.P. Sinha, learned counsel for the respondent no. 3 is granted three weeks time to file counter affidavit. Rejoinder affidavit may be filed within one week thereafter. List for admission/disposal on 6th January, 1998.

     Till further orders, the * petitioner respondent no. 3* shall be reinstated in service within two weeks from today.  He shall, however, not be paid the back salary. He shall be paid salary from the date he joins.

                           Sd/- Hon'ble Sudhir Narain, J"  

 * Corrected vide Court's order dated 8.11.2004*  

                                                             

 

 In this background Sri Shesh Bahadur singh has filed by the present writ petition no. 1084 of 2005 for the following reliefs:-

"(i)  issue a writ, order or direction in the nature of mandamus directing the respondents not to interfere with the peaceful service of petitioner in Janta Uchchatar Madyamik Vidyalaya, Athilapura, Rasra, Ballia on the post of Head Master.

(ii) issue any other order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.

(iii) award the cost of the petition in favour of the petitioner.

Counsel for the petitioner has relied upon paragraph 12 of the aforesaid writ petition and submits that the point in dispute is that the petitioner was promoted as Head Master of Junior High School in 1990 and now he is presently working as Head Master of upgraded High School pursuant to a resoluation no. 2 passed by the Committee of Management of Janta Uchchatar Madhyamik Vidylaya, Athilapura, Rasra, Ballia dated 6.11.2001.  Since the basis of claim of Sri Shesh Bahadur Singh is the aforesaid resolution, it is quoted below for appreciation of the terms and conditions in which it was resolved to appoint him as Head Master of the Janta Uchchatar Madhyamik Vidylaya, Athilapura, Rasra, Ballia:-

" izLroko la0 2

iz/kkuk/;ikd      izcU/kd Jh pUnznhi flag usa crk;k fd fo/kky;

in ij fuq;fDr    b.VjehfM,V f'k{kkk la'kks/ku vf/kfu;e 1987 dh                                                                                  

              /kkjk 7 d (d) ds vUrxZr mPphd`r dj uhou gkbZ Ldwy dh ekU;rk iznku dj nh x;h gS vkSj uoha d{kk dk f'k{k.k dk;Z lapkfyr dj fn;k x;k gS blfy, vc turk mPprj ek/;fed fo/kky; vfBykiqjk ds iz/kkuk/;id ds in ij fu;fDr vko';d gS A eSa bl laca/k esa cSBd ls fopkj izLrqr djusa dk vuqjks/k djrk gwW A

  izcU/kd ds bl fopkj ds laca/k esa Jh lR;nso flag usa ;g izLrko fd;k fd laLFkk ds iz/kkuk/;kid Jh 'ks"k cgknqj flg dks gh turk mPprj ek/;fed fo/kky; vfBykiqjk ds iz/kkuk/;kid ds in dk dk;Z ,oa nkfpRo iznRr dj fn;k tk; A

   bl izLrko dk loZ Jh tuknZu flag o Jh n;k'kdj xqIr usa vuqeksnu fd;k A

   fopkj foe'kZ ds Ik'pkr loZlEefr ls turk m0ek0fo0 vfBykiqjk ds iz/kkuk/;kid ds in ij Jh 'ks"k cgknqj flg dks fuq;qDr djusa dk fu.kZ; fy;k x;k vkSj bl laca/k esa izcU/kd Jh pUnznhi flag dks vf/kd`r fd;k x;k fd Jh 'ks"k cgknqj flg dk iz/kkuk/;kid ds in ij fo/kky;h; ,oa foHkkxh; dk;Z lEiknu ds fy, ftyk fo/kky; fujh{kd ls gLrk{kj izekf.kr djkusa lEcU/kh dk;Zokgh vfoyEc iwjh dj ysa A

                       g0 viBuh;

                        lhy /eqgj

                        izcU/kd

           turk mPprj ek/;fedfi/kky;]vfBykiqjk

                  vByk & cfy;k A "

  . He further submits that Sri Kapoor Chand Sharma is incompetent for being appointed as Head Master as there are serious charges against him and he has been dismissed from service by the Committee of Management regarding which his writ petition is pending.  Reliance has been placed by the counsel on Chapter II Regulation 2(g) of the U.P. Intermediate Act, 1921 provides that a Head Master of High School who is not found fit for promotion as Principal of the upgraded Intermediate College or a Head Master of a Junior High School who, on its being raised as a Head Master, is not selected by the selection committee for the post of Head Master of upgraded High School, shall be retained as an Assistant Teacher on the highest post for which he is qualified, provided that his pay scale shall not be reduced.

It is then submitted that Rule 9 of the U.P. Junior High School Recruitment Rules 1978 provides for appointment by selection for the post of officiating Head Master and Assistant Teacher in an institution other than minority institutions. It is to be made by a selection committee constituted by the Committee of Management.  Rule 9 is as under :-

" 9. Selection Committee : For the appointment of officiating Head Master and Assistant Teacher in institution other than minority institutions and in the minority institutions, the Management shall constitute a selection committee as follow:

(A) Institution other than minority institution

(i) For the post of Head Master

(1) Manager

(2) A nominee of District Basic Education Officer

(3) A nominee of the management

Selection committee  for the post of officiating Head Master of High School is constituted under Section 16(f) of the U.P. Intermediate Act, 1921, which is quoted below :-

"16(f). Selection Committee:

(1) For the selection of candidates for appointment as Head Master of an institution, there shall be a selection committee consisting of :-

(i) the President or any member of the committee of management nominated by the Committee by resolution in that behalf, who shall be the Chairman;

(ii) a member of the committee of management other than the one referred to in clause (ii) nominated by it in this behalf;

(iii) three experts nominated by the Regional Deputy Director of Education from person not belonging to the district in which the institution is situated out of the panel of names prepared under this selection.

He then contends that a suspended Head Master of Junior High School cannot be reinstated on the post of Head Master of High School without following the procedure prescribed under Rule 9 of the U.P. Junior High School Recruitment Rules 1978 or Section 16(f) of the U.P. Intermediate Act, 1921.

Per contra, counsel for the respondents submitted that the appointment of the petitioner was only a local/ad hoc arrangement which is apparent from letter dated 25.7.1990. The petitioner Shesh Bahadur Singh was never appointed as Head Master of Junior High School in accordance with law i.e. rule 9 of the U.P. Junior High School Recruitment Rules, 1978. By resolution no. 2 passed on 6.11.2001, the Committee of Management considered the matter and resolved that Sri Shesh Bahadur Singh, the petitioner, be given the work and responsibility of Head Master of the High School as the Junior High Shool was upgraded in the teeth of interim order dated 22.10.1997 which was corrected on 8.11.2004. The Committee as well as the Basic Shiksha Adhikari know that the order dated 22.10.1997 was passed by the Court in favour of Sri Kapoor chand Sharma but on the pretext of tenability they worked against the spirit of the aforesaid order dated 22.10.1997 to undo the relief granted to him.  Referring to the resolution contained in Annexure 3 to the writ petition, he submits that Sri Shesh Bahadur Singh was given the work and responsibility of Head Master of the High School by virtue of the fact that he was working as Head Master of Junior High School by way of local arrangement made by order dated 25.7.1990. He further submits that as Sri Shesh Bahadur Singh was not an officiating Head Master of the Junior High School after selection under Rule 9 of the U.P. Junior High School Recruitment Rule 1978 he had no right to be considered for the post of Head Master of High School. He further submits that Sri Shesh Bahadur Singh cannot claim to be Head Master of High School by virtue of fact that his signatures have been attested by the District Inspector of Schools pursuant to the resolution dated 6.11.2001 as he was also not selected by the Selection Committee for the post of Head Master of the upgraded High School and could only be retained as senior teacher in terms of Chapter II Regulation 2(g) of the U.P. Intermediate Act, 1921.

  He also assailed the maintainability of the instant writ petition on the grounds that (i) the petitioner does not claim any relief against the Committee of Management nor against any of the respondents arrayed in the writ petition; (ii) the Committee of Management was not arrayed as a party. In paragraph 8 of the writ petition, the petitioner has specifically stated that he has no grievance against the Committee of Management; (iii) counsel for the petitioner has conceded in his argument that he does not dispute the fact that Sri Kapoor Chand Sharma is senior to the petitioner and was Head Master of Junior High school and (iv) that the petitioner has not been granted regular promotion as per paragraph 15 of the counter affidavit.

CONCLUSIONS

The petitioner- Shesh Bahadur Singh was not selected by any selection committee as per the provisions of Rule 9 of the U.P. Junior High School Recruitment Rules, 1978 for officiating as Head Master of the Junior High School and no material, whatsoever, is available on record in this regard in the writ petition no. 1084 of 2005 filed by him.. In so far as his appointment as Head Master of High School is concerned, there is also no material at all to establish the factum that the petitioner had been appointed as Head Master of the upgraded High School by the selection committee constituted under the provisions of Section 16(f) of the U.P. Intermediate Education Act, 1921, hence he has no legal right to claim himself to be duly appointed  Head Master of Janta Uchchatar Madhyamik Vidyalaya, Athilapura Rasra, Ballia. All that can be said that he was officiating as Head Master of the upgraded High School. Once Sri Kapoor Chand Sharma was directed to be reinstated by High Court vide order dated 22.10.1997, as corrected by order dated 8.11.2004, the petitioner has no right to remain as officiating Head Master. It appears that the Committee of Management is order to overcome the order dated 22.10.1997 resolved to appoint Sri Shesh Bahadur Singh as Head Master of High School without referring to the order dated 22.10.1997 passed by this Court.

  It may be noted here that in the instant writ petition no. 1084 of 2005, the Committee of Management was initially not arrayed as party. Subsequently, an application for impleadment of Committee of Management was moved by the petitioner after receipt of counter affidavit to which an objection was filed.  In paragraph 8 of the rejoinder affidavit, it has been averred that the petitioner, who is deponent, has no grievance against the Committee of Management of Janta Uchchatar Madhyamik Vidyalaya, Athilapura Rasra, Ballia,  Paragraph 8 of the rejoinder affidavit is as under :-

"8..     That in reply to the contents of paragraph no. 7 of the counter affidavit it is submitted here that deponent has no dispute with committee of management Janta Uchchatar Madhyamic Vidyalaya, Athilapura, Ballia but even then this Hon'ble Court may permit the deponent he will implead committee of management, Janta Uchchatar Madhyamic Vidyalaya, Athilapur, Ballia as array of the parties. "

.   Since, admittedly, the petitioner has no grievance against the Committee of Management, the impleadment application of the petitioner is rejected.

It is admitted in paragraph 12 of the writ petition that the petitioner is only an officiating Head Master.  On the contrary, the suspension order of Sri Kapoor Chand Sharma had not been approved by the Basic Siksha Adhikari against which a writ petition was filed by the Committee of Management, which was dismissed and the Special Appeal against the judgment of learned Single Judge was also dismissed. Thus, the order of suspension was not effective after 60 days. In so far as termination of Sri Kapoor Chand Sharma is concerned, the Committee of Management was directed vide interim order dated 22.10.1997 as corrected on 8.11.2004 to reinstate Sri Sharma and to pay current salary. That being the factual and legal position, the petitioner has no legal right to remain as officiating Head Master..

In the facts and circumstance of this caseI am of the view that since the suspension order of Sri Kapoor Chand Sharma did not remain in force and as the writ petition and Special Appeal of the Committee of Management against his order of termination was dismissed, Sri Sharma could not remain under suspension  or even terminated as the order of termination was not approved by the Basic Siksha Adhikari, Ballia and his order was upheld by the Director of Education (Basic), Ballia in appeal filed by the Committee of Management.

The relief  sought by the petitioner in this writ petition is against a private party, i.e., respondent no. 4.  No public duty is involved in the present case and it is only for permitting the petitioner to work as Head Master of the institution, in question. No mandamus can be issued in case of a private party except for enforcement of public duty as has been held by Hon'ble the Supreme Court in  Binny Ltd. and another V. V. Sadasivan and others  -2005 A.I.R. S.C.W-3774.  In paragraphs 16,29 and 32 of the judgment, it has been held that :-

"16. The above guidelines and principles applied by English courts cannot be fully applied to Indian conditions when exercising jurisdiction under Article 226 or 32 of the Constitution.  As already stated, the power of the High Courts under Article 226 is very wide and these powers have to be exercised by applying the constitutional provisions and judicial guidelines and violation, if any, of the fundamental rights guaranteed in Part III of the Constitution.  In the matter of employment of workers by private bodies on the basis of contracts entered into between them, the Courts had been reluctant to exercise the powers of judicial review and whenever the powers were exercised as against private employers, it was solely done based on public law element involved therein.

Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is re-eminently a public law remedy and is not generally available as a remedy against private wrongs.  It is used for enforcement of various rights of the public or to compel the public/statutory authorities to discharge their duties and to act within their bounds.  It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties.  This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution.  However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought.  If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies.  According to Halsbury's Laws of England 3rd ed. Vol. 30, page 682 "a public authority is body not necessarily a county council, municipal corporation or other local authority which has public statutory duties to perform and which perform the duties and carries out its transactions for the benefit of the public and not for private profit." There cannot be any general definition of public authority or public action. The facts of each case decide the point.

32.    Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not a State within the meaning of Article 12 of the Constitution and such body is amenable to the jurisdiction under Article 226 of the Constitution and the High Court under Article 226 of the Constitution can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties."

The relief claimed by the petitioner cannot, therefore, be granted.  Sri Kapoor Chand Sharma is senior to the Sri Shesh Bahadur Singh who was given charge of Head Master in stopgap arrangement on suspension of Sri Kapoor Chand Sharma. Since Sri Shesh Bahadur Singh  has failed to establish any legal right and for issuance of writ of mandamus in his favour to allow him to continue to work as Head Master of High School and the order of Director disapproving the termination of Sri Kapoor Chand Sharma has also become final, as such, he is entitled to work as Head Master of High School in pursuance of order dated 22.10.1997 passed by this Court.

For the reasons stated above, the writ petition fails and is accordingly dismissed.  As a consequence, writ petition no.23957 of 1997 is also dismissed with direction  that Sri Kapoor Chand Sharma is entitled to be reinstated in service with all consequential benefits. The Basic Shiksha Adhikari, Ballia is directed to release the arrears of salary to the petitioner within a period of one month from the date of production of a certified copy of this order.. No order as to costs.

Dated 14.9.2005

kkb

Hon'ble Rakesh Tiwari, J

This writ petition has been filed for issuance of writ in the nature of mandamus directing the respondents not to interfere with the peaceful working of the petitioner in Janta Uchchatar Madhyamik Vidyalaya, Athilapura Rasra, Ballia on the post of Head Master.

The brief facts of the case are that Janta  Vidyalaya, Athilapura, Ballia was a recognized institution.  It was upgraded in 2001 and is known as Janta Uchchatar Madhyamik Vidyalaya, Athilapura Rasra, Ballia. It is recognized school and the provisions of U.P. Intermediate Act , 1921 are applicable to the institution.  

The petitioner was appointed as Assistant Teacher on 1.7.1977. He claims that he was promoted as Head Master of the Junior High School in 1990.  A true copy of the order of promotion, on which he has based his claim, dated 25.7.1990 ( appended as Annexure 2 to the writ petition) is as under :-

" vkns'k la0      fnukad 25&7&90

Jh 'ks"k cgknqj flag] l0v0

Turk fo/kky;] vfBykiqjk]

VfByk] cfy;k

vkidh fu;qfDr iz/kkuk/;kid ds in ij fnukad 1&8&90 ls Jh diwj pUn 'kekZ ds fuyEcu ls gq, fjDr in ij fdlh LFkk;h iz/kkuk/;id dh O;oLFkk rd ;k Jh diwj pUn 'kekZ dks vius in ij okil vkus rd tks Hkh iwoZ esa iM`s rd dh tkrh gS A

vki d`Ik;k mDr in dk dk;ZHkkj rqjUr xzg.k djsa rFkk dk;ZHkkj xzg.k dh lwpuk eq>s rFkk ftyk csfld f'k{kk vf/kdkjh dksa nsa A

                                                                               

                             Hkonh;

                          g0 pUnznhi flag

                                            izcU/kd                                                    

                  Tkurk fo/kky; vfBykiqjk]vfByk] cfy;k"                                                                                              

                                                                   

It is apparent from the perusal of the aforesaid order dated 25.7.1990 that the petitioner was not promoted as regular Head Master of the Junior High  after facing the selection committee constituted under Rule 9 of the U.P. Junior High school Recruitment Rules, 1978 but was appointed in stopgap arrangement due to suspension of Sri Kapoor Chand Sharma, respondent no. 4 by the Manager of the School. The appointment of the petitioner- Shesh Bahadur Singh on the post of Head Master (ad hoc) and was conditional i.e., till permanent arrangement is made or till Sri Kapoor Chand Sharma is reinstated on his post.

It appears from the record of connected Civil Misc. Writ No. 23957 of 1997 that the respondent no. 3- Sri Kapoor Chand Sharma was suspended vide order dated 16.7.1990. Consequently, he was served with a charge sheet on 25.7. 1990 and an additional charge sheet dated 1.12.1990 in respect of certain chages.  Sri Kapoor Chandra Sharma filed Writ Petition No. 30633 of 1990 before this Court challenging the order of suspension which was stayed by the Court on 23.8.1990. The Basic Siksha Adhikari Ballia also did not accord approval to the order of suspension dated 16.7.1990 of Sri Kapoor Chand Sharma by the Committee of Management. The writ petition was thereafter dismissed vide order dated 25.11.1992.  The Committee of Management thereafter resolved to dismiss respondent no. 3 from service and accordingly dismissed him/ The order of dismissal was also disapproved by the Basic Siksha Adhikari Ballia vide order dated 17.9.1993. Aggrieved, the Committee of Management filed writ petition no. 36898 of 1993 challenging the validity and correctness of order dated 17.9.93.  The court by interim order dated 1.10.93 stayed the operation of the order dated 17.9.93.  The writ petition, however,was ultimately dismissed vide judgement dated 19.9.94 on ground of alternate remedy available to the petitioner under Rule 12 of U.P. Recognized Basic Schools (Recruitment and Condition of Service of Teachers) Rules, 1975 to the Board. Aggrieved the Committee of Management filed Special Appeal  against judgment dated 19.9.94 which was also dismissed.

Pursuant to the dismissal of Special appeal the Committee of Management filed appeal before the Director of Education (Basic), Nishatganj, Lucknow in pursuance of the judgment dated 19.9.1994 in Civil Misc. Writ No. 36898 of 1993. After hearing both the parties, the Director of Education (Basic) dismissed the appeal filed by the Committee of Management by judgment dated 10.7.1997 recording a finding that dismissal of Sri Kapoor Chand Sharma was due to bad relation between the management and the Manager and upheld the order of the Basic Siksha Adhikari by which approval was not accorded to the Committee of Management in respect of dismissal of Sri Kapoor Chand Sharma..  Aggrieved by the order and judgment dated 10.7.1997 of the Director of Education (Basic), the Committee of Management has come up in writ petition no. 23957 of 1997 for quashing orders dated 17.9.1993 and 10.7.1997 which is connected and listed along with the present writ petition no. 1084 of 2005 today for hearing.

It  appears from record of connected Civil Misc. Writ No. 23957 of 1997  filed by the Committee of Management Janta Vidyalaya, Athilapura Rasra, Ballia that an order dated 22.10.1997 had wrongly been passed for payment of salary to the petitioner , i.e. Committee of Management, Hence when Respondent no. 3 went to join his duties in pursuance of the aforesaid order he was not permitted to join by the Committee of Management. Sri Kapoor Chand Sharma then approached the Basic Shiksha Adhikari, Ballia who vide letter dated 15.7.2004 informed him that as per order dated 22.10.1997 there appears to be no question for reinstatement of Committee of Management, hence the order may be got corrected and certified copy of the corrected order be filed for further action in the matter:-

"   izs"kd

       ftyk csfld f'k{kk vf/kdkjh

       cfy;k

lsok esa

       Jh dewj pUn 'keZk]

        vkRet Jh foU/;kpy 'kekZ]

        fuoklh xzke o iksLV cuoj ftyk cfy;k

Ik=kad 1058/2004&05  fnukad 15&7&2004

fo"k; % ekuuh; mPp U;k;ky; esa ;ksftr ;kfpdk la[;k 23957/97 izcU/k lfefr turk fo/kky; vfBykiqjk cfy;k cuke f'k{kk funs'kd ( cs0 )  fu'kkrxat y[kum rFkk vU; esa ikfjr vkns'k fnukad 22&10&97 dh vuqikyu lqfuf'pr djusa ds laca/k esa

egksn;]

    mDr U;k;ky;kns'k dk vuqikyu lqfuf'pr djusa ls lacaf/kr vkids izR;kosnu fnukad jfgr tks bl dk;kZy; esa fnukad 17&6&2004 dks izkIr gqvk gS ds lanHkZ esa dguk gS fd d`Ik;k mDr U;k;ky;kns'k dk vuqikyu vc rd lqfuf'pr u fd;s tkus dh fLFkfr Li"V djusa dk d"V djsa A

mDr ds vfrfjDr mDr U;k;ky;kns'k esa vkidks rhu lIrkg ds Hkhrj izfrokn 'kiFk Ik= nkf[ky djusa ds fy, vknsf'kr fd;k x;k gS] d`Ik;k vius Lrj ls ekuuh; U;k;ky; esa nkf[ky izfrokn 'kiFk Ik= dh ,d izekf.kr izfr bl dk;kZy; dks miyC/k djkusa dk d"V djsaA lkFk gh mDr ;kfpdk dh orZeku fLFkfr ds laca/k esa ekuuh; mPp U;k;ky; ls lwpuk izi= ij lwpuk izkIr dj bl dk;kZy; dks izLrqr djusa dk d"V djsa fd mDr ;kfpdk vkt Hkh ekuuh; U;k;ky; ds fopkjk/khu gS A

mDr ds vfrfjDr mDr U;k;ky;kns'k esa ;g vknsf'kr fd;k x;k gS fd vxys vkns'k rd ;kph dks lsok esa nks lIrkg ds Hkhrj cgky fd;k tk;] mDr ;kfpdk fo/kky; dk izcU/k lfefr Onkjk nkf[ky gS A izcU/k lfefr dks iqu% cgky djusa dk dksbZ vkSfpR; ugha gS A vr% d`Ik;k ;g crkusa dk d"V djsa fd mDr vkns'k esa mfpr la'kks/ku gsrq vkidh vksj ls dksbZ izkFkZuk Ik= ekuuh; U;k;ky; ds le{k izLrqr fd;k x;k gS vkSj ekuuh; U;k;ky; Onkjk mDr vkns'k esa dksbZ la'kks/ku fd;k x;k gS ? ;fn gkW rks la'kksf/kr vkns'k dh izfr bl dk;kZy; dks miyC/k djkus dk d"V djsa rkfd vfxze dk;Zokgh lEHko gks lds A

                            Hkonh;

                      g0 jktsUnz izlkn ;kno                                  

                  ftyk csfld f'k{kk vf/kdkjh cfy;k"                                  

On receipt of the letter dated 15.7.2004, the petitioner realized the mistake in the order dated 22.`0.97 and moved the High Court by means of correction application requesting for appropriate correction of order i.e., in place of direction of reinstatement of petitioner, respondent may be substituted and/or corrected. . The orderdated 22.10.97 was corrected on 8.11.2004 as under :-

" Hon'ble Sudhir Narain, J

     Sri M.P. Sinha, learned counsel for the respondent no. 3 is granted three weeks time to file counter affidavit. Rejoinder affidavit may be filed within one week thereafter. List for admission/disposal on 6th January, 1998.

     Till further orders, the * petitioner respondent no. 3* shall be reinstated in service within two weeks from today.  He shall, however, not be paid the back salary. He shall be paid salary from the date he joins.

                           Sd/- Hon'ble Sudhir Narain, J"  

 * Corrected vide Court's order dated 8.11.2004*  

                                                             

 

 In this background Sri Shesh Bahadur singh has filed by the present writ petition no. 1084 of 2005 for the following reliefs:-

"(i)  issue a writ, order or direction in the nature of mandamus directing the respondents not to interfere with the peaceful service of petitioner in Janta Uchchatar Madyamik Vidyalaya, Athilapura, Rasra, Ballia on the post of Head Master.

(ii) issue any other order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.

(iii) award the cost of the petition in favour of the petitioner.

Counsel for the petitioner has relied upon paragraph 12 of the aforesaid writ petition and submits that the point in dispute is that the petitioner was promoted as Head Master of Junior High School in 1990 and now he is presently working as Head Master of upgraded High School pursuant to a resoluation no. 2 passed by the Committee of Management of Janta Uchchatar Madhyamik Vidylaya, Athilapura, Rasra, Ballia dated 6.11.2001.  Since the basis of claim of Sri Shesh Bahadur Singh is the aforesaid resolution, it is quoted below for appreciation of the terms and conditions in which it was resolved to appoint him as Head Master of the Janta Uchchatar Madhyamik Vidylaya, Athilapura, Rasra, Ballia:-

" izLroko la0 2

iz/kkuk/;ikd      izcU/kd Jh pUnznhi flag usa crk;k fd fo/kky;

in ij fuq;fDr    b.VjehfM,V f'k{kkk la'kks/ku vf/kfu;e 1987 dh                                                                                  

              /kkjk 7 d (d) ds vUrxZr mPphd`r dj uhou gkbZ Ldwy dh ekU;rk iznku dj nh x;h gS vkSj uoha d{kk dk f'k{k.k dk;Z lapkfyr dj fn;k x;k gS blfy, vc turk mPprj ek/;fed fo/kky; vfBykiqjk ds iz/kkuk/;id ds in ij fu;fDr vko';d gS A eSa bl laca/k esa cSBd ls fopkj izLrqr djusa dk vuqjks/k djrk gwW A

  izcU/kd ds bl fopkj ds laca/k esa Jh lR;nso flag usa ;g izLrko fd;k fd laLFkk ds iz/kkuk/;kid Jh 'ks"k cgknqj flg dks gh turk mPprj ek/;fed fo/kky; vfBykiqjk ds iz/kkuk/;kid ds in dk dk;Z ,oa nkfpRo iznRr dj fn;k tk; A

   bl izLrko dk loZ Jh tuknZu flag o Jh n;k'kdj xqIr usa vuqeksnu fd;k A

   fopkj foe'kZ ds Ik'pkr loZlEefr ls turk m0ek0fo0 vfBykiqjk ds iz/kkuk/;kid ds in ij Jh 'ks"k cgknqj flg dks fuq;qDr djusa dk fu.kZ; fy;k x;k vkSj bl laca/k esa izcU/kd Jh pUnznhi flag dks vf/kd`r fd;k x;k fd Jh 'ks"k cgknqj flg dk iz/kkuk/;kid ds in ij fo/kky;h; ,oa foHkkxh; dk;Z lEiknu ds fy, ftyk fo/kky; fujh{kd ls gLrk{kj izekf.kr djkusa lEcU/kh dk;Zokgh vfoyEc iwjh dj ysa A

                       g0 viBuh;

                        lhy /eqgj

                        izcU/kd

           turk mPprj ek/;fedfi/kky;]vfBykiqjk

                  vByk & cfy;k A "

  . He further submits that Sri Kapoor Chand Sharma is incompetent for being appointed as Head Master as there are serious charges against him and he has been dismissed from service by the Committee of Management regarding which his writ petition is pending.  Reliance has been placed by the counsel on Chapter II Regulation 2(g) of the U.P. Intermediate Act, 1921 provides that a Head Master of High School who is not found fit for promotion as Principal of the upgraded Intermediate College or a Head Master of a Junior High School who, on its being raised as a Head Master, is not selected by the selection committee for the post of Head Master of upgraded High School, shall be retained as an Assistant Teacher on the highest post for which he is qualified, provided that his pay scale shall not be reduced.

It is then submitted that Rule 9 of the U.P. Junior High School Recruitment Rules 1978 provides for appointment by selection for the post of officiating Head Master and Assistant Teacher in an institution other than minority institutions. It is to be made by a selection committee constituted by the Committee of Management.  Rule 9 is as under :-

" 9. Selection Committee : For the appointment of officiating Head Master and Assistant Teacher in institution other than minority institutions and in the minority institutions, the Management shall constitute a selection committee as follow:

(A) Institution other than minority institution

(i) For the post of Head Master

(1) Manager

(2) A nominee of District Basic Education Officer

(3) A nominee of the management

Selection committee  for the post of officiating Head Master of High School is constituted under Section 16(f) of the U.P. Intermediate Act, 1921, which is quoted below :-

"16(f). Selection Committee:

(1) For the selection of candidates for appointment as Head Master of an institution, there shall be a selection committee consisting of :-

(i) the President or any member of the committee of management nominated by the Committee by resolution in that behalf, who shall be the Chairman;

(ii) a member of the committee of management other than the one referred to in clause (ii) nominated by it in this behalf;

(iii) three experts nominated by the Regional Deputy Director of Education from person not belonging to the district in which the institution is situated out of the panel of names prepared under this selection.

He then contends that a suspended Head Master of Junior High School cannot be reinstated on the post of Head Master of High School without following the procedure prescribed under Rule 9 of the U.P. Junior High School Recruitment Rules 1978 or Section 16(f) of the U.P. Intermediate Act, 1921.

Per contra, counsel for the respondents submitted that the appointment of the petitioner was only a local/ad hoc arrangement which is apparent from letter dated 25.7.1990. The petitioner Shesh Bahadur Singh was never appointed as Head Master of Junior High School in accordance with law i.e. rule 9 of the U.P. Junior High School Recruitment Rules, 1978. By resolution no. 2 passed on 6.11.2001, the Committee of Management considered the matter and resolved that Sri Shesh Bahadur Singh, the petitioner, be given the work and responsibility of Head Master of the High School as the Junior High Shool was upgraded in the teeth of interim order dated 22.10.1997 which was corrected on 8.11.2004. The Committee as well as the Basic Shiksha Adhikari know that the order dated 22.10.1997 was passed by the Court in favour of Sri Kapoor chand Sharma but on the pretext of tenability they worked against the spirit of the aforesaid order dated 22.10.1997 to undo the relief granted to him.  Referring to the resolution contained in Annexure 3 to the writ petition, he submits that Sri Shesh Bahadur Singh was given the work and responsibility of Head Master of the High School by virtue of the fact that he was working as Head Master of Junior High School by way of local arrangement made by order dated 25.7.1990. He further submits that as Sri Shesh Bahadur Singh was not an officiating Head Master of the Junior High School after selection under Rule 9 of the U.P. Junior High School Recruitment Rule 1978 he had no right to be considered for the post of Head Master of High School. He further submits that Sri Shesh Bahadur Singh cannot claim to be Head Master of High School by virtue of fact that his signatures have been attested by the District Inspector of Schools pursuant to the resolution dated 6.11.2001 as he was also not selected by the Selection Committee for the post of Head Master of the upgraded High School and could only be retained as senior teacher in terms of Chapter II Regulation 2(g) of the U.P. Intermediate Act, 1921.

  He also assailed the maintainability of the instant writ petition on the grounds that (i) the petitioner does not claim any relief against the Committee of Management nor against any of the respondents arrayed in the writ petition; (ii) the Committee of Management was not arrayed as a party. In paragraph 8 of the writ petition, the petitioner has specifically stated that he has no grievance against the Committee of Management; (iii) counsel for the petitioner has conceded in his argument that he does not dispute the fact that Sri Kapoor Chand Sharma is senior to the petitioner and was Head Master of Junior High school and (iv) that the petitioner has not been granted regular promotion as per paragraph 15 of the counter affidavit.

CONCLUSIONS

The petitioner- Shesh Bahadur Singh was not selected by any selection committee as per the provisions of Rule 9 of the U.P. Junior High School Recruitment Rules, 1978 for officiating as Head Master of the Junior High School and no material, whatsoever, is available on record in this regard in the writ petition no. 1084 of 2005 filed by him.. In so far as his appointment as Head Master of High School is concerned, there is also no material at all to establish the factum that the petitioner had been appointed as Head Master of the upgraded High School by the selection committee constituted under the provisions of Section 16(f) of the U.P. Intermediate Education Act, 1921, hence he has no legal right to claim himself to be duly appointed  Head Master of Janta Uchchatar Madhyamik Vidyalaya, Athilapura Rasra, Ballia. All that can be said that he was officiating as Head Master of the upgraded High School. Once Sri Kapoor Chand Sharma was directed to be reinstated by High Court vide order dated 22.10.1997, as corrected by order dated 8.11.2004, the petitioner has no right to remain as officiating Head Master. It appears that the Committee of Management is order to overcome the order dated 22.10.1997 resolved to appoint Sri Shesh Bahadur Singh as Head Master of High School without referring to the order dated 22.10.1997 passed by this Court.

  It may be noted here that in the instant writ petition no. 1084 of 2005, the Committee of Management was initially not arrayed as party. Subsequently, an application for impleadment of Committee of Management was moved by the petitioner after receipt of counter affidavit to which an objection was filed.  In paragraph 8 of the rejoinder affidavit, it has been averred that the petitioner, who is deponent, has no grievance against the Committee of Management of Janta Uchchatar Madhyamik Vidyalaya, Athilapura Rasra, Ballia,  Paragraph 8 of the rejoinder affidavit is as under :-

"8..     That in reply to the contents of paragraph no. 7 of the counter affidavit it is submitted here that deponent has no dispute with committee of management Janta Uchchatar Madhyamic Vidyalaya, Athilapura, Ballia but even then this Hon'ble Court may permit the deponent he will implead committee of management, Janta Uchchatar Madhyamic Vidyalaya, Athilapur, Ballia as array of the parties. "

.   Since, admittedly, the petitioner has no grievance against the Committee of Management, the impleadment application of the petitioner is rejected.

It is admitted in paragraph 12 of the writ petition that the petitioner is only an officiating Head Master.  On the contrary, the suspension order of Sri Kapoor Chand Sharma had not been approved by the Basic Siksha Adhikari against which a writ petition was filed by the Committee of Management, which was dismissed and the Special Appeal against the judgment of learned Single Judge was also dismissed. Thus, the order of suspension was not effective after 60 days. In so far as termination of Sri Kapoor Chand Sharma is concerned, the Committee of Management was directed vide interim order dated 22.10.1997 as corrected on 8.11.2004 to reinstate Sri Sharma and to pay current salary. That being the factual and legal position, the petitioner has no legal right to remain as officiating Head Master..

In the facts and circumstance of this caseI am of the view that since the suspension order of Sri Kapoor Chand Sharma did not remain in force and as the writ petition and Special Appeal of the Committee of Management against his order of termination was dismissed, Sri Sharma could not remain under suspension  or even terminated as the order of termination was not approved by the Basic Siksha Adhikari, Ballia and his order was upheld by the Director of Education (Basic), Ballia in appeal filed by the Committee of Management.

The relief  sought by the petitioner in this writ petition is against a private party, i.e., respondent no. 4.  No public duty is involved in the present case and it is only for permitting the petitioner to work as Head Master of the institution, in question. No mandamus can be issued in case of a private party except for enforcement of public duty as has been held by Hon'ble the Supreme Court in  Binny Ltd. and another V. V. Sadasivan and others  -2005 A.I.R. S.C.W-3774.  In paragraphs 16,29 and 32 of the judgment, it has been held that :-

"16. The above guidelines and principles applied by English courts cannot be fully applied to Indian conditions when exercising jurisdiction under Article 226 or 32 of the Constitution.  As already stated, the power of the High Courts under Article 226 is very wide and these powers have to be exercised by applying the constitutional provisions and judicial guidelines and violation, if any, of the fundamental rights guaranteed in Part III of the Constitution.  In the matter of employment of workers by private bodies on the basis of contracts entered into between them, the Courts had been reluctant to exercise the powers of judicial review and whenever the powers were exercised as against private employers, it was solely done based on public law element involved therein.

Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is re-eminently a public law remedy and is not generally available as a remedy against private wrongs.  It is used for enforcement of various rights of the public or to compel the public/statutory authorities to discharge their duties and to act within their bounds.  It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties.  This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution.  However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought.  If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies.  According to Halsbury's Laws of England 3rd ed. Vol. 30, page 682 "a public authority is body not necessarily a county council, municipal corporation or other local authority which has public statutory duties to perform and which perform the duties and carries out its transactions for the benefit of the public and not for private profit." There cannot be any general definition of public authority or public action. The facts of each case decide the point.

32.    Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not a State within the meaning of Article 12 of the Constitution and such body is amenable to the jurisdiction under Article 226 of the Constitution and the High Court under Article 226 of the Constitution can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties."

The relief claimed by the petitioner cannot, therefore, be granted.  Sri Kapoor Chand Sharma is senior to the Sri Shesh Bahadur Singh who was given charge of Head Master in stopgap arrangement on suspension of Sri Kapoor Chand Sharma. Since Sri Shesh Bahadur Singh  has failed to establish any legal right and for issuance of writ of mandamus in his favour to allow him to continue to work as Head Master of High School and the order of Director disapproving the termination of Sri Kapoor Chand Sharma has also become final, as such, he is entitled to work as Head Master of High School in pursuance of order dated 22.10.1997 passed by this Court.

For the reasons stated above, the writ petition fails and is accordingly dismissed.  As a consequence, writ petition no.23957 of 1997 is also dismissed with direction  that Sri Kapoor Chand Sharma is entitled to be reinstated in service with all consequential benefits. The Basic Shiksha Adhikari, Ballia is directed to release the arrears of salary to the petitioner within a period of one month from the date of production of a certified copy of this order.. No order as to costs.

Dated 14.9.2005

kkb


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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