Unaided College Principal's Termination Not A Private Matter: High Court Upholds Writ Petition, Ruling That State's Involvement Through Dios Makes It Subject To Judicial Review.

CASE TITLE:

C/M Pratibha Inter College & Anr. Vs State of UP & Ors
DATE OF ORDER:

3rd July 2024
JUDGES:

Hon'ble Chief Justice Arun Bhansali, Hon'ble Justice Jaspreet Singh.
PARTIES:

Appellant: C/M Pratibha Inter College, Barabanki through Manager Sri Indra Kumar and another
Respondent: State of U.P. through Principal Secretary, Department of Secondary Education, U.P. Government, Lucknow and others

SUBJECT:

The High Court upheld the writ petition, setting aside the appellants' contentions that the termination of the principle (respondent) was a private matter in between the management and the respondent. Furthermore, the court examined the relevant provisions (U.P. Intermediate Education Act, 1921, Regulations, 2000) and concluded that the termination of the respondent had an element of public law. Moreover, it was established that through DIOS there was state’s interference in the present case and so the same is open to judicial review under Article 226 of the constitution.

IMPORTANT PROVISIONS:

Constitution Of India:
Article 12: In this Part, unless the context otherwise requires, “the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
Article 226: (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without—
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard,
makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.

THE U.P. INTERMEDIATE EDUCATION ACT, 1921:

Section 2(b): “Institution” means a recognized Intermediate College, Higher Secondary School or High School, and includes, where the context so requires, a part of an institution, and ‘Head of Institution’.
Section 7-A: Notwithstanding anything contained in clause (4) of section 7 — (a) the Board may, with the prior approval of, the State Government, recognize an institution in any new subject or group of subjects or for a higher class; (b) the Inspector may permit an institution to open a new section in an existing class.]
Section 7- AA (3): No part-time teacher shall be employed in an institution unless such conditions as may be specified by the State Government by order in this behalf are complied with.

REGULATIONS, 2000

9. सेवा समाप्ति :- यदि प्रबन्धतंत्र को यह समाधान हो जाये कि कोई भी अंशकालिकअध्यापक धारा-8 में वर्णित अथवा किसी नैतिक अधमता के अपराध में किसी सक्षमन्यायालय द्वारा दोषी सिद्ध कर दिया गया हो, तो वह इन अंशकालिक अध्यापकों कीसेवायें समाप्त कर सकता है।(क) किसी भी अंशकालिक अध्यापक की सेवाएं समाप्त करने के पूर्व प्रबन्धतंत्र द्वाराआरोपी के विरूद्ध लगाये गये आरोपों की जांच, जांच अधिकारी से करायी जायेगी।(ख) जांच अधिकारी का तात्पर्य प्रबन्धतंत्र द्वारा नियुक्त अंशकालिक प्रधानाचार्य याकिसी वरिष्ठ अंशकालिक अध्यापक से होगा।
(ग) जांच अधिकारी की जांच आख्या एवं संस्तुति पर प्रबन्धतंत्र निर्णय के पूर्वप्रबन्धतंत्र द्वारा सम्बन्धित अंशकालिक अध्यापक को सुनवाई का अवसर दिया जायेगाऔर इसके उपरान्त ही निर्णय लिया जायेगा।(घ) यदि प्रबन्धतंत्र के निर्णय से संबंधित अंशकालिक अध्यापक विक्षुब्ध हो, तो वहइस निर्णय के विरूद्ध संबंधित जिला विद्यालय निरीक्षक को अपील प्रबन्धतंत्र केनिर्णय प्राप्ति के दो माह के भीतर प्रस्तुत कर सकता है। जिला विद्यालय निरीक्षकका निर्णय अन्तिम होगा।(च) जिला विद्यालय निरीक्षक द्वारा दिये गये निर्णय का पालन प्रबन्धतंत्र करेगा।प्रबन्धतंत्र द्वारा जिला विद्यालय निरीक्षक द्वारा लिये गये निर्णय का पालन नहीं कियाजाता है, तो प्रबन्धतंत्र के विरूद्ध उ० प्र० माध्यमिक शिक्षा अधिनियम 1921 सेसुसंगत प्राविधानों के तहत कार्यवाही की जा सकेगी।"

BRIEF FACTS:

• In the present case, the appellant, C/M Pratibha Inter College, is a recognized college and is unaided. Respondent 4 is the principal who filed the writ petition against the termination of their service by the college.
• The single judge of the court issued an order on 10/04/2024, rejecting the appellant's arguments about the maintainability of the respondent's writ against the appellant's college.
• The institution terminated the principal's services on 09/04/2024, and on 16/04/2024, they posted an advertisement announcing the date for the next principal's interviews.
• The respondent challenged both of these things in the filed writ petition.
• Upon the case's initial presentation to the learned single judge, the appellant argued that the subject matter was a private matter between the institution's management and the respondent, without any statute overseeing or governing its services, thereby rendering the petition unmaintainable in court. This contention was dismissed by the court, and the validity of the petition was upheld via an order dated May 10, 2024.
• This order paved the way for the current case in the chief justice's court, challenging the previously issued order by the learned single judge.
   

ISSUES RAISED:

In this case, the main questions were whether the learned single judge's order was subject to dismissal and whether the writ petition against the institution was maintainable.

ARGUMENTS ADVANCED BY THE APPELLANT
 

• The appellants' primary contention was that the writ petition in question was not maintainable due to the lack of statutes governing the services administered by the respondent. Additionally, they asserted that the dispute between the institution's management and the respondent principal is a private matter.
   
• The argument also emphasized Article 12 of the constitution, arguing that the appellant's unaided institution does not meet the definition of "state" under the aforementioned article, making the petition unmaintainable.
   
• The appellants had cited the case of Mary’s Education Society and another vs. Rajendra Prasad Bhargava and others [2022 INSC 856] and had submitted that the Supreme Court in this case had stated that unaided institutions won’t come under the purview of “state” as per Article 12 of the constitution and thereby cannot be subjected to a judicial review as given under Article 226 of the constitution.
   
• Further, relying on the order passed in the aforementioned case, the counsel contended that the appellant’s institution was an unaided one and wasn’t performing any public function or duty; also, there wasn’t any element of public function or public law in the termination of the respondent, and due to this reason, the same isn’t liable for a judicial review under Article 226.
   
• Addressing the submissions made by the respondents w.r.t. the case of Marwari Balika Vidyalaya vs. Asha Srivastava and others [2019 INSC 198], the appellants stated that there was a difference between the cited case and the present one.
   
• The institution in question in the Marwari Balika case was receiving grant-in-aid from the government, but in the current case, it was not receiving any such aid; therefore, both cases are distinct, and there is no correlation between their facts.
   
• The appellant argued in the submissions that Regulations 2000 do not mention any state or governmental interference in the act of terminating or appointing the teachers or any such decisions made by the institution's administrations.
   
•  It was emphasized that the regulations only outline the process of selection of teachers, the qualifications necessary for the post, termination of services, etc., and as such do not have any mention of a public interference, thus maintaining the private nature of the said dispute.
   
• The appellant contended that there was a lack of merit in the writ petition and prayed that the court set aside the order of the single judge bench and allow their appeal.
   

Arguments Advanced by the Respondent:

• It was contended that the UP. Intermediate Education Act, 1921, included both unaided and aided institutions and that the appellant institution was also recognized by the provisions of the said Act and hence were open to judicial review as per Article 226 of the constitution.
• Furthermore, it was also submitted that the Regulations, 2000, are also applicable upon termination of the principal (respondent), and hence this decision indeed involves a public law element.
• It was also argued by the respondents that even though the institution is unaided, it is still performing a public duty (free and compulsory education) as per Article 21-A of the constitution, and thereby the appellant institution would fall under the specified definition of “state” as per Article 12.\
• The case of Roychan Abraham vs. State of U.P. [MANU/UP/0976/2019] was cited by the respondents, and it was highlighted that the Supreme Court in the aforementioned case had stated that private institutions that are providing education to students above the age of 6 years are performing a public duty and as such are subjected to judicial review.
   

JUDGEMENT ANALYSIS:

• The court noted that the appellants have emphasized that the whole issue relating to the sustenance of the present petition has been wholly covered in the Mary’s Case and thus, the same should be dismissed.
• Furthermore, the court said that in the case of Mary’s Education Society and another vs. Rajendra Prasad Bhargava, after thorough findings, it was observed by the court that the terms and conditions of the service given under the CBSE affiliation bylaws lacked legal force.
• Following this, the respondent in the case was only able to establish a "breach of contract" rather than a "breach of law," leading to the conclusion that there was no public element involved.
• The court in the present case had highlighted that the facts of Mary’s Education Society and another vs. Rajendra Prasad Bhargava [supra] and Marwari Balika Vidyalaya vs. Asha Srivastava and others [supra] were different. In the Marwari Balika case, it was held by the court that the power to issue writs under Article 226 is exercisable towards any such body or a person who is performing a public function or a duty.
• The public should recognize any entity performing a specific public function, and such a body should benefit the public.
• Furthermore, the court stated that the entity's actions should be connected to the public function or duty that they are to perform. The power to issue under Article 226 of the constitution can only be invoked if the action had an element of public law in it.
• If the wrong includes a breach of contract or any such issue not involving the public law, then Article 226 won’t be invoked. For the courts to exercise the power of writ jurisdiction under Article 226, either the entity in question should fulfil the conditions and come under the purview of “state” as per Article 12 of the constitution, or the act done contains an element of public law/function.
• The courts had also highlighted that the employees of any such entity performing a public duty can’t use Article 226 to their aid if their terms of service weren’t governed by a statutory body. Any such terms and conditions of services lacking the statutory backing would be considered a private contract, and outside interference is not permissible in such a scenario.
• In the present case, the court had held that the appellant institution fell under the definition of ‘institution’ as given under Section 2(b) of the UP. Intermediate Education Act, 1921. Furthermore, the court held that the aforementioned act's sections 7-A and 7-AA, which addressed the employment of part-time teachers and instructors, also applied to the institution in question.
• The court also referred to the state-issued regulations from 2000 that govern unaided recognized institutions and bodies. It was stated that apart from the things that were discussed by appellants w.r.t. the regulations in the case before, clause 9 of the same laid down the provisions regarding service termination of a part-time teacher.
• Clause 9 of the provision stipulates that the management may terminate the service when an inquiry is required. Moreover, under clause 9(d), if a part-time teacher is not satisfied with such a decision, the management can challenge the termination and can approach the DIOS (District Inspector of Schools) and file their appeal within 2 months of such a decision.
• DIOS' decision would be considered final, and as per Clause 9(e) of the regulations, the entity or management would be required to follow such a decision. If the same isn’t done, then an action as per the U.P. Intermediate Education Act, 1921, can be taken against such disobedience.
• It was emphasized by the bench that the said Regulations are framed under Section 7-AA(3) of the UP. Intermediate Education Act, 1921, and as such govern and regulate all the facets of employment of part-time teachers and are also applicable to the decisions made by the management w.r.t such employment.
• Employees can challenge the administration's decision at the DIOS, proving that statutory authority governs their employment and termination conditions. DIOS is an entity through which the presence of a state's interference is there.
• The court emphasized that the facts of the previously cited Mary's Education Society case do not apply to the current situation. This is because the state in the present case indeed does have a role through DIOS to whom an appeal was made, and the U.P. Intermediate Education Act, 1921 mentions that the decision taken by a DIOS would be considered final and mandates the management to follow it; if not done so, the same is actionable under Section 16-D (3)(i) and 4 of the U.P. Intermediate Education Act, 1921.
• Therefore, we cannot assert that the terms and conditions of the teacher's employment lack statutory support. This contrasted with St. Mary’s case, wherein the state had no role to play.
   

CONCLUSION:

In the present case, based upon the aforementioned findings, the court had held that the termination of the respondent wasn’t a private dispute between the management and the respondent and that it indeed involved an element of public law in it, and as the terms of employment and the termination were backed by a statutory authority, hence, the act in question is open to judicial review and Article 226 would be applicable to this case.
The court highlighted the role of DIOS and stated that due to its interference, the dispute in question cannot be considered a private matter. The involvement of DIOS had introduced an element of public law in the matter, and hence it became open to judicial scrutiny.
The appellants' counsel attempted to raise additional questions about the petition's maintainability, specifically the appeal that was pending before the DIOS. The court chose not to address the same and further stated that the said issue isn’t a part of the learned single judge’s order and that it would still be open to future consideration.
Lastly, the court upheld the learned single judge's order, which allowed the respondents to file the writ petition. The court reinforced that the termination of the respondent had a provisional backing and state’s interference, thereby making it open for review under Article 226. It was further stated that the submissions made by the appellants lacked substance and merit, and thus their argument against the petition filed by the respondents was struck down.