# Devesh Verma v. Christ Church College & Ors

- **Citation:** (2023) 1 ILRA 1182
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-02
- **Case number:** Special Appeal Defective No. 2 of 2018
- **Bench:** Ramesh Sinha, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devesh-verma-v-christ-church-college-ors-49571
- **Pages:** 12

## Headnote

A. Education Law - Removal from post -
U.P. Intermediate Education Act, 1921 -
Section 16G(3).

Maintainability - While a body may be
discharging
a
public
function
or
performing a public duty and thus its
actions becoming amenable to judicial
review by a Constitutional Court, its
employees would not have the right to
invoke the powers of the High Court
conferred by Article 226 in respect of
matter relating to service where they are
not
governed
or
controlled
by
the
statutory
provisions.
An
educational
institution
may
perform
myriad
functions
touching various facets of public life and in the
societal sphere. While such of those functions as
would fall within the domain of a "public
function" or "public duty" be undisputedly open
to challenge and scrutiny under Article 226 of
the Constitution, the actions or decisions
taken solely within the confines of an
ordinary contract of service, having no
statutory force or backing, cannot be
recognised
as
being
amenable
to
challenge
under
Article
226
of
the
Constitution. In the absence of the service
conditions being controlled or governed by
statutory provisions, the matter would remain in
the realm of an ordinary contract of service.
(Para 25)

B.
Approval
u/s
16-G(3)(a)
of
U.P.
Intermediate Education Act, 1921 - Since
no appropriate guidelines have been provided
for exercise of power u/s 16-G (3)(a) of the Act,
it must be held that such an uncanalised power
on the Inspector or the Inspectress would
tantamount to an inroad into the power of
disciplinary control of the Managing Committee
of the minority institution over its employees
and as such the said provision would not apply
to the minority institution.

The legislature never intended to subject
the order of termination of an employee of
a minority institution to the approval/
disapproval of the Selection Board. In this
view of the matter, it is difficult for us to hold
that an order of termination of an employee of a
minority institution cannot be given effect to,
unless
approved
by
either
the
Inspector/Inspectress, as provided in Section
16-G (3)(a) or by the Selection Board, as
provided under U.P. Act 5 of 1982. Under the
provisions, the conclusion is that the question
of
prior
approval
of
the
competent
authority
in
case
of
an
order
of
1 All. Devesh Verma Vs. Christ Church College & Ors.
1183
termination of an employee of a minority
institution does not arise. (Para 26)

Therefore,
the
employees
of
a
private
educational institution would not have the right
to invoke the powers of the High Court
conferred by Article 226 in respect of matters
relating to service where they are not governed
or controlled by the statutory provisions. And,
the provisions of Section 16 G (3) of the U.P.
Intermediate Education Act are not applicable to
the teachers employed in private minority
institutions.
There
is
no
other
Statutory
provision, which is alleged to have been violated
in the instant case. Therefore, the WP filed by a
former teacher against the private unaided
minority institution challenging the order of his
termination and seeking restitution of his
service, is not maintainable. (Para 27)

C. Several disputed questions of fact - The
appellant claims that he had been duly selected
and appointed, but he has not filed a copy of
the appointment letter or a contract of
appointment from which his service conditions
may be ascertained. The college has contended
neither any advertisement had been issued nor
any selection was held and on a personal
request made by the appellant, he had been
orally engaged to work and after he had worked
merely for about 4 months, he misbehaved with
the Principal of the college and the Principal had
filed a FIR against him on 31.03.1992. The
appellant did not perform his duties since
thereafter. Whether or not the appellant was
duly selected and appointed, and what were his
service conditions, are facts which are in dispute
and regarding which no material is available on
record. F

## Text

1182 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 28.03.2011, deserves to be
affirmed and appeal is liable to be
dismissed.

99. In the result, the Criminal Appeal is
dismissed. Impugned judgment and order dated
28.03.2011 is hereby confirmed/affirmed. The
appellant, who is in jail, shall serve out the
sentence awarded to him by the Trial Court.

100. Copy of this order along with lower
Court record be sent to Court concerned
forthwith.

101. A copy of this order be also sent to
Appellant
through
concerned
Jail
Superintendent.
----------
(2023) 1 ILRA 1182
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.01.2023

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Special Appeal Defective No. 2 of 2018

Devesh Verma ...Appellant
Versus
Christ Church College & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Ramesh Chandra Saxena, Sri Gaurav
Saxena

Counsel for the Respondents:
C.S.C., Sri Jai Pratap Singh

A. Education Law - Removal from post -
U.P. Intermediate Education Act, 1921 -
Section 16G(3).

Maintainability - While a body may be
discharging
a
public
function
or
performing a public duty and thus its
actions becoming amenable to judicial
review by a Constitutional Court, its
employees would not have the right to
invoke the powers of the High Court
conferred by Article 226 in respect of
matter relating to service where they are
not
governed
or
controlled
by
the
statutory
provisions.
An
educational
institution
may
perform
myriad
functions
touching various facets of public life and in the
societal sphere. While such of those functions as
would fall within the domain of a "public
function" or "public duty" be undisputedly open
to challenge and scrutiny under Article 226 of
the Constitution, the actions or decisions
taken solely within the confines of an
ordinary contract of service, having no
statutory force or backing, cannot be
recognised
as
being
amenable
to
challenge
under
Article
226
of
the
Constitution. In the absence of the service
conditions being controlled or governed by
statutory provisions, the matter would remain in
the realm of an ordinary contract of service.
(Para 25)

B.
Approval
u/s
16-G(3)(a)
of
U.P.
Intermediate Education Act, 1921 - Since
no appropriate guidelines have been provided
for exercise of power u/s 16-G (3)(a) of the Act,
it must be held that such an uncanalised power
on the Inspector or the Inspectress would
tantamount to an inroad into the power of
disciplinary control of the Managing Committee
of the minority institution over its employees
and as such the said provision would not apply
to the minority institution.

The legislature never intended to subject
the order of termination of an employee of
a minority institution to the approval/
disapproval of the Selection Board. In this
view of the matter, it is difficult for us to hold
that an order of termination of an employee of a
minority institution cannot be given effect to,
unless
approved
by
either
the
Inspector/Inspectress, as provided in Section
16-G (3)(a) or by the Selection Board, as
provided under U.P. Act 5 of 1982. Under the
provisions, the conclusion is that the question
of
prior
approval
of
the
competent
authority
in
case
of
an
order
of
1 All. Devesh Verma Vs. Christ Church College & Ors.
1183
termination of an employee of a minority
institution does not arise. (Para 26)

Therefore,
the
employees
of
a
private
educational institution would not have the right
to invoke the powers of the High Court
conferred by Article 226 in respect of matters
relating to service where they are not governed
or controlled by the statutory provisions. And,
the provisions of Section 16 G (3) of the U.P.
Intermediate Education Act are not applicable to
the teachers employed in private minority
institutions.
There
is
no
other
Statutory
provision, which is alleged to have been violated
in the instant case. Therefore, the WP filed by a
former teacher against the private unaided
minority institution challenging the order of his
termination and seeking restitution of his
service, is not maintainable. (Para 27)

C. Several disputed questions of fact - The
appellant claims that he had been duly selected
and appointed, but he has not filed a copy of
the appointment letter or a contract of
appointment from which his service conditions
may be ascertained. The college has contended
neither any advertisement had been issued nor
any selection was held and on a personal
request made by the appellant, he had been
orally engaged to work and after he had worked
merely for about 4 months, he misbehaved with
the Principal of the college and the Principal had
filed a FIR against him on 31.03.1992. The
appellant did not perform his duties since
thereafter. Whether or not the appellant was
duly selected and appointed, and what were his
service conditions, are facts which are in dispute
and regarding which no material is available on
record. For this reason also, the WP would not
be maintainable. (Para 28)

Special appeal dismissed. (E-4)

Precedent followed:

1. Committee of Management, St. John's Inter
College Vs Girdhari Singh & ors. (2001) 4 SCC
296 (Para 5)

2. Committee of Management, La Martinere
College, Lucknow Vs Vatsal Gupta & ors. Civil
Appeal
No.
7030
of
2016,
decided
on
26.07.2016 (Para 5)
3. Abu Zaid & ors. Vs Principal, Madrasa-TulIslah Saraimir, Azamgarh & ors. AIR 1999 All 64
(Para 7)

4. Sandeep Chauhan & ors. Vs Respondent: St.
of U.P. & ors. 2001 (2) LBESR 644 (Para 7)

5. Harold James Vs U.O.I., (2004) 22 LCD 1649
(Para 7)

6. Ramesh Ahluwalia Vs St. of Pun., (2012) 12
SCC 331 (Para 7)

7. Roychan Abraham Vs St. of U.P., (2019) 2
UPLBES 1148 (FB) (Para 7)

8. Marwari Balika Vidyalaya Vs Asha Srivastava,
(2020) 14 SCC 449 (Para 7)

9. St. Mary's Educational Society and another Vs
Rajandra Prasad Bhargava & ors. 2022 SCC
OnLine 1091 (Para 7)

10. Committee of Management, La Martiniere
College, Lucknow Vs Vatsal Gupta & ors. S.L.P.
(Civil) No. 3182 of 2016, decided on 26.07.2016
(Para 8)

11. Satimbla Sharma Vs St. Paul' Senior
Secondary School, (2011) 13 SCC 760 (Para 8)

12. Dr. S.N. Tripathi Vs St. of U.P., 2010 SCC
OnLine All 1965 (Para 8)

13. Bhavnagar University Vs Palitana Sugar Mill
(P) Ltd., (2003) 2 SCC 111 (Para 10)

14. Escorts Ltd. Vs CCE, (2004) 8 SCC 335 (Para
10)

15. Bharat Petroleum Corp. Ltd. Vs N.R.
Vairamani, (2004) 8 SCC 579 (Para 11)

Precedent distinguished:

Andi Mukta Sadguru Shree Muktajee Vandas
Sawmi Suvarna Jayanti Mahotsava Smarak Trust
& ors. Vs V.R. Rudani & ors. (1989) 2 SCC 691
(Para 7, 14, 15)

Present intra court appeal challenges the
judgment and order dated 12.09.2017
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
passed
by
an
Hon'ble
Single
Judge
dismissing Writ Petition No. 6630 (S/S) of
1996, in which appellant challenged his
removal from a post of Lecturer in Christ
Church College, Lucknow, on the ground
of being in violation of S. 16 G (3) of the
U.P. Intermediate Education Act, 1921.

(Delivered by Hon'ble Ramesh Sinha, J.
&
Hon'ble Subhash Vidyarthi, J.)

(Order on C.M.An.782 of 2018
(Application for Condonation of delay): -

1- This is an application seeking
condonation of delay in filing appeal.

2- We have gone through the affidavit
filed in support of the application.

3- The cause shown for the delay is
sufficient.

4- The application is allowed.

5- Delay in filing appeal is hereby
condoned.

Order On the Special Appeal

1- By means of the instant intra court
appeal, the appellant-petitioner has sought to
challenge the judgment and order dated
12.09.2017 passed by an Hon'ble Single Judge
dismissing Writ Petition No. 6630 (S/S) of
1996, which was filed by the appellant
challenging his removal from a post of
Lecturer in Christ Church College, Lucknow
(which will hereinafter be referred to as ''the
college'), on the ground that the removal was
done in violation of Section 16 G (3) of the U.
P. Intermediate Education Act, 1921.

2- Briefly stated, the facts of the case
are that the appellant had filed the Writ
Petition pleading that he had been duly
selected and was appointed as a Lecturer in
Physics in the College and he had joined
his duties on 07.10.1991. On 31.03.1992,
the Principal of the College had lodged a
First
Information
report
against
the
appellant, bearing Case Crime No. 380 /92
under Sections 504/506 of the Indian Penal
Code
in
Police
Station
Hazaratganj,
Lucknow, and the appellant was arrested on
16.07.1992. The appellant was granted bail
on the same day but the Principal of the
College did not permit him to resume his
duties and said that he would not permit the
appellant to resume his duties until he was
acquitted of the charges. Ultimately the
appellant was acquitted by means of a
judgment dated 24.05.1996, but when he
went to join his duties, the Principal of the
college told him that another person had
been appointed in place of the appellant
and the appellant's services had come to an
end
automatically
with
effect
from
17.07.1992.

3- The appellant challenged the oral
termination of his services mainly on the
ground that before dispensing with his
services, no approval required under
Section 16 G (3) of the U. P. Intermediate
Education Act was obtained.

4- The college filed a counter
affidavit pleading that it is a minority
institution
recognized
by
the
Indian
Council for Secondary Education. It is a
private institution which does not receive
any financial assistance from the State
Government and the State Government has
no role to play in it. The provisions of the
U. P. Intermediate Education Act are not
applicable to the college. It was also stated
in the counter affidavit that no selection
was held for making appointment on the
post
of
Lecturer
and
the
petitioner
1 All. Devesh Verma Vs. Christ Church College & Ors.
1185
personally
made
a
request
for
his
engagement and he was orally allowed to
work temporarily on his personal request.
The petitioner worked only for about four
months and after he misbehaved with the
Principal on 31.03.1992, he did not perform
his duties even for a single day.

5- The Hon'ble Single Judge has
relied upon the judgment of Hon'ble
Supreme Court in case of Committee of
Management, St. John's Inter College v.
Girdhari Singh & Ors, (2001) 4 SCC
296 in which the Hon'ble Supreme Court
has held that the provisions of Section 16 G
(3) of the U. P. Intermediate Education Act,
1921 are not applicable to the minority
institutions. The Hon'ble Single Judge also
relied upon a decision of the Hon'ble
Supreme Court in the case of Committee of
Management,
La
Martinere
College,
Lucknow v. Vatsal Gupta & Ors., Civil
Appeal No. 7030 of 2016 decided on
26.07.2016, wherein the Hon'ble Supreme
Court declined to interfere in a judgment
passed by this Court declining to entertain
the writ petition filed against unaided
minority private institution.

6-

The
Hon'ble
Single
Judge
dismissed
the
Writ
Petition
as
not
maintainable, taking into consideration the
plea taken in the counter affidavit that the
College, Lucknow is a private minority
institution recognized by Indian Council of
Secondary Education and the writ petition
filed against a private minority institution is
not maintainable.

7- Sri R. C. Saxena, Advocate, the
learned Counsel for the appellant has
submitted that the College is engaged in
imparting education to the children, which
is a public duty and the writ petition filed
against such an institution would be
maintainable. In support of his contention,
the learned Counsel for the appellant has
placed
reliance
upon
the
following
decisions: -

I - Andi Mukta Sadguru Shree
Muktajee Vandas Sawmi Suvarna Jayanti
Mahotsava Smarak Trust & Ors. v. V.R.
Rudani & Ors., (1989) 2 SCC 691

II - Abu Zaid and Ors. vs.
Principal,
Madrasa-Tul-Islah
Saraimir,
Azamgarh and Ors. AIR 1999 All 64

III - Sandeep Chauhan and Ors.
Vs. Respondent: State of U.P. and Ors.
2001 (2) LBESR 644

IV - Harold James versus Union
of India, (2004) 22 LCD 1649

V - Ramesh Ahluwalia v. State of
Punjab, (2012) 12 SCC 331

VI - Roychan Abraham versus
State of U. P., (2019) 2 UPLBES 1148 (FB)

VII -Marwari Balika Vidyalaya v.
Asha Srivastava, (2020) 14 SCC 449,

VIII - St. Mary's Educational
Society and another versus Rajandra
Prasad Bhargava and others, 2022 Scc
OnLine SC 1091

8- Per contra, Sri Jai Pratap Singh, the
learned counsel representing the college has
submitted that the institution in question being
a private unaided minority institution, the
Hon'ble Single Judge had rightly held that the
writ petition is not maintainable. He has placed
reliance upon the following judgments: -

I - Committee of Management, La
Martiniere College, Lucknow versus Vatsal
1186 INDIAN LAW REPORTS ALLAHABAD SERIES
Gupta and others, S.L.P. (Civil) NO. 3182
of 2016, decided on 26.07.2016,

II - Satimbla Sharma v. St Paul's
Senior Secondary School, (2011) 13 SCC
760

III - Dr. S. N. Tripathi versus
State of U. P. 2010 SCC OnLine All 1965

IV - Committee of Management,
St. John Inter College v. Girdhari Singh,
(2001) 4 SCC 296

9- We have considered the aforesaid
submissions made by the learned counsel
for the parties.

10- In Bhavnagar University v.
Palitana Sugar Mill (P) Ltd., (2003) 2
SCC 111, the Hon'ble Supreme Court held
that: -

"A decision, as is well known, is
an authority for which it is decided and not
what can logically be deduced therefrom. It
is also well settled that a little difference in
facts or additional facts may make a lot of
difference in the precedential value of a
decision."

11- In Escorts Ltd. v. CCE, (2004) 8
SCC 335 and Bharat Petroleum Corpn.
Ltd. v. N.R. Vairamani, (2004) 8 SCC
579, the Hon'ble Supreme Court held that: -

"8. Courts should not place
reliance on decisions without discussing as
to how the factual situation fits in with the
fact situation of the decision on which
reliance is placed. Observations of courts
are neither to be read as Euclid's theorems
nor as provisions of a statute and that too
taken
out
of
their
context.
These
observations must be read in the context in
which they appear to have been stated.
Judgments of courts are not to be construed
as statutes. To interpret words, phrases and
provisions of a statute, it may become
necessary for Judges to embark into
lengthy discussions but the discussion is
meant to explain and not to define. Judges
interpret statutes, they do not interpret
judgments.
They
interpret
words
of
statutes; their words are not to be
interpreted as statutes. In London Graving
Dock Co. Ltd. v. Horton (1951) 2 All ER 1
(HL), Lord MacDermott observed: (All ER
p. 14 C-D)

"The matter cannot, of course, be
settled merely by treating the ipsissima
verba of Willes, J., as though they were
part of an Act of Parliament and applying
the rules of interpretation appropriate
thereto. This is not to detract from the great
weight to be given to the language actually
used by that most distinguished judge,..."

9. In Home Office v. Dorset
Yacht Co. (1970) 2 All ER 294, Lord Reid
said (All ER p. 297g-h),

"Lord Atkin's speech ... is not to
be treated as if it were a statutory
definition. It will require qualification in
new circumstances."

Megarry, J. in Shepherd Homes
Ltd. v. Sandham (No. 2)4 observed: (All ER
p. 1274d-e) "One must not, of course,
construe even a reserved judgment of even
Russell, L.J. as if it were an Act of
Parliament;" And, in Herrington v. British
Railways Board5 Lord Morris said: (All
ER p. 761c)

"There is always peril in treating
the words of a speech or a judgment as
though they were words in a legislative
1 All. Devesh Verma Vs. Christ Church College & Ors.
1187
enactment, and it is to be remembered that
judicial utterances are made in the setting
of the facts of a particular case."

10. Circumstantial flexibility, one
additional or different fact may make a
world of difference between conclusions in
two cases. Disposal of cases by blindly
placing reliance on a decision is not
proper."

12- In the light of the aforesaid
principles, we proceed to examine the ratio
of decisions relied upon by the learned
Counsel for the parties in light of the
factual background in which the ratio was
laid down.

13- In Andi Mukta Sadguru Shree
Muktajee
Vandas
Swami
Suvarna
Jayanti Mahotsav Smarak Trust v. V.R.
Rudani, (1989) 2 SCC 691, the teachers of
a private institution had filed a Writ
Petition claiming payment of their dues
upon
termination
of
their
services
consequent to closure of the institution. The
Hon'ble Supreme Court proceeded to
decide the questions involved after noting
that: -

"5. As is obvious from these
reliefs, the retrenched persons were not
agitating for their continuance in the
service. They seem to have made a trust
with the destiny and accepted the closure of
the college. They demanded only the
arrears of salary, provident fund, gratuity
and the closure compensation which are
legitimately due to them.

* * *

13. The decision in Vaish Degree
College (1976) 2 SCC 58 was followed in
Deepak Kumar Biswas case (1987) 2 SCC
252. There again a dismissed lecturer of a
private college was seeking reinstatement
in service. The Court refused to grant the
relief although it was found that the
dismissal was wrongful. This Court instead
granted substantial monetary benefits to
the lecturer. This appears to be the
preponderant judicial opinion because of
the common law principle that a service
contract cannot be specifically enforced.

14. But here the facts are quite
different and, therefore, we need not go
thus far. There is no plea for specific
performance of contractual service. The
respondents are not seeking a declaration
that they be continued in service. They are
not asking for mandamus to put them back
into the college. They are claiming only the
terminal benefits and arrears of salary
payable to them. The question is whether
the trust can be compelled to pay by a writ
of mandamus?

15. If the rights are purely of a
private character no mandamus can issue.
If the management of the college is purely a
private body with no public duty mandamus
will not lie. These are two exceptions to
mandamus. But once these are absent and
when the party has no other equally
convenient remedy, mandamus cannot be
denied. It has to be appreciated that the
appellants
trust
was
managing
the
affiliated college to which public money is
paid as government aid. Public money
paid as government aid plays a major role
in the control, maintenance and working
of educational institutions. The aided
institutions like government institutions
discharge public function by way of
imparting education to students. They are
subject to the rules and regulations of the
affiliating University. Their activities are
closely supervised by the University
1188 INDIAN LAW REPORTS ALLAHABAD SERIES
authorities.
Employment
in
such
institutions, therefore, is not devoid of any
public character. So are the service
conditions of the academic staff. When the
University takes a decision regarding their
pay scales, it will be binding on the
management. The service conditions of
the academic staff are, therefore, not
purely of a private character. It has superadded protection by University decisions
creating a legal right-duty relationship
between the staff and the management.
When
there
is
existence
of
this
relationship, mandamus cannot be refused
to the aggrieved party.

* * *

20. The term "authority" used in
Article 226, in the context, must receive a
liberal meaning unlike the term in Article
12. Article 12 is relevant only for the
purpose of enforcement of fundamental
rights under Article 32. Article 226 confers
power on the High Courts to issue writs for
enforcement of the fundamental rights as
well as non-fundamental rights. The words
"any person or authority" used in Article
226 are, therefore, not to be confined only
to
statutory
authorities
and
instrumentalities of the State. They may
cover any other person or body performing
public duty. The form of the body
concerned is not very much relevant. What
is relevant is the nature of the duty imposed
on the body. The duty must be judged in the
light of positive obligation owed by the
person or authority to the affected party.
No matter by what means the duty is
imposed, if a positive obligation exists
mandamus cannot be denied."
(Emphasis supplied)

14- It cannot be lost sight of that the
aforesaid proposition was laid down after
taking note of the facts that the retrenched
persons were not agitating for their
continuance in the service and They had
demanded only the arrears of salary,
provident fund, gratuity and the closure
compensation which were legitimately due
to them. There was no plea for specific
performance of contractual service. The
respondents were not seeking a declaration
that they be continued in service. They
were not asking for mandamus to put them
back into the college. They were claiming
only the terminal benefits and arrears of
salary payable to them and the question
was whether the trust could be compelled
to pay by a writ of mandamus. The Court
held that if the management of the college
is purely a private body with no public duty
mandamus will not lie. The appellant trust
was managing an affiliated college to
which
public
money
was
paid
as
government aid and public money paid as
government aid plays a major role in the
control, maintenance and working of
educational
institutions.
The
aided
institutions like government institutions
discharge public function by way of
imparting education to students. The Court
held that employment in such institutions is
not devoid of any public character and so
are the service conditions of the academic
staff. When the University takes a decision
regarding their pay scales, it will be
binding on the management. The service
conditions of the academic staff are,
therefore, not purely of a private character.

15- In the present case, the college is
a private minority institution which does
not receive any financial aid from the
Government and the grievance raised is
against termination of services of a teacher
and the prayer made is for restitution of the
appellant
in
service.
Therefore,
the
aforesaid principles laid down in Andi
1 All. Devesh Verma Vs. Christ Church College & Ors.
1189
Mukta after specifically highlighting that
the petitioners in that case were not
challenging
the
termination
of
their
services and they were not seeking
restitution in service, will not apply to the
present case.

16- Abu Zaid and Ors. vs. Principal,
Madrasa-Tul-Islah Saraimir, Azamgarh
and Ors. AIR 1999 All 64, was a petition
filed by the students who had been debarred
from taking up their studies in the institution
on account of their involvement in a criminal
case and it was also not a case in which the
legality of order of termination of services of
a minority institution was in issue. It was
submitted before the Court that "The
respondents have illegally and without
affording any opportunity of hearing or of
showing
cause,
prevented
them
from
attending their classes though no specific
orders have been passed. The petitioners
have, of necessity, to file the present writ
petition as the respondents are bent upon to
deprive the petitioners from their lawful right
to continue their studies In the respondentinstitution". While deciding the Writ Petition,
the Single Bench held that: -

"10. The respondent Madrasa-TulIslah, Saraimir, Azamgarh admittedly is an
institution
duly
recognised
under
the
Societies Registration Act and its affairs are
regulated by the approved bye-laws and
scheme of administration. The institution
even though a minority one, is discharging a
public duty of imparting education, which has
been held to be a fundamental right.
Therefore, in view of the law discussed
above, the petitioners are entitled to
approach this Court for issuing appropriate
direction and orders in the nature of writ."

17- In Sandeep Chauhan and Ors.
Vs. Respondent: State of U.P. and Ors.
2001 (2) LBESR 644, a Division Bench of
this Court held that writ petition against
Central Board of Secondary Education,
Shiksha Kendra. Preet Vihar, New Delhi, is
maintainable.

18- In Ramesh Ahluwalia v. State of
Punjab, (2012) 12 SCC 331, the Hon'ble
Supreme Court held that: -

"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 Sadguru Shree Muktajee
Vandas Swami Suvarna Jayanti Mahotsav
Smarak Trust there can be no doubt that
even a purely private body, where the State
has no control over its internal affairs,
would be amenable to the jurisdiction of
the High Court under Article 226 of the
Constitution, for issuance of a writ of
mandamus. Provided, of course, the private
body is performing public functions which
are normally expected to be performed by
the State authorities.

* * *

16. We are of the considered
opinion that since the writ petition clearly
involves disputed questions of fact, it is
appropriate that the matter should be
decided by an appropriate tribunal/court."

(Emphasis supplied)

19- In Roychan Abraham versus
State of U. P., (2019) 2 UPLBES 1148
(FB), a Full Bench of this Court held that: -

"Private Institutions imparting
education to students from the age of six
years onwards, including higher education,
perform public duty primarily a State
1190 INDIAN LAW REPORTS ALLAHABAD SERIES
function, therefore are amenable to judicial
review of the High Court under Article 226
of the Constitution of India."

20- In Marwari Balika Vidyalaya v.
Asha Srivastava, (2020) 14 SCC 449, the
Hon'ble Supreme Court held that a writ
application is maintainable even as against
the private unaided educational institutions.

21- In Satimbla Sharma v. St Paul's
Senior Secondary School, (2011) 13 SCC
760 the Hon'ble Supreme Court held that: -

"unaided private minority schools
over which the Government has no
administrative control because of their
autonomy under Article 30(1) of the
Constitution are not State within the
meaning of Article 12 of the Constitution.
As the right to equality under Article 14 of
the Constitution is available against the
State, it cannot be claimed against unaided
private minority schools."

* * *

25. Where a statutory provision casts
a duty on a private unaided school to pay the
same salary and allowances to its teachers as
are being paid to teachers of government-aided
schools, then a writ of mandamus to the school
could be issued to enforce such statutory duty.
But in the present case, there was no statutory
provision requiring a private unaided school to
pay to its teachers the same salary and
allowances as were payable to teachers of
government schools and therefore a mandamus
could not be issued to pay to the teachers of
private recognised unaided schools the same
salary and allowances as were payable to
teachers of government institutions."

22- In Dr. S. N. Tripathi versus
State of U. P. 2010 SCC OnLine All 1965,
this Court held "that a Government aided
private society constituted under the
Societies Registration Act, shall not be
''State' within the meaning of Article 12 of
the Constitution of India. Hence the writ
petition is not maintainable." The Court
further held that: -

"15. However, it does not mean
that the petitioner or the employees of the
Government added College are remediless.
In the event of Intermediate College, the
District Inspectors of Schools or Deputy
Director of Region or the Director of
Education has got ample powers to
interfere in accordance with the provisions
contained in the statute or under the
Payment of Salaries Act. In case a degree
college is affiliated to University, then
under the U.P. Universities Act and its
statutes, the employees have got right to
approach the appropriate authority like
Vice-Chancellor/Director
of
Higher
Education, to ventilate their grievance.

16. Accordingly, while holding
that the present writ petition as not
maintainable, we give liberty to the
petitioner to approach the Director Higher
Education with regard to payment of salary
in question or the Vice-Chancellor as the
case may be. In case the petitioner
represents his cause, it shall be considered
and decided expeditiously say, within three
months from the date of receipt of a
certified
copy
and
communicate
the
decision."

23- In Committee of Management, La
Martinere College, Lucknow v. Vatsal
Gupta & Ors., Civil Appeal No. 7030 of
2016 decided on 26.07.2016, the Hon'ble
Supreme Court declined to interfere in a
judgment passed by this Court declining to
entertain the writ petition filed against
1 All. Devesh Verma Vs. Christ Church College & Ors.
1191
unaided minority private institution and
held that: -

"Appellant No.1 is an unaided
minority private institution. We see no
reason how a writ petition against that
institution could be entertained. The High
Court was clearly in error in entertaining
the writ petition and passing subsequent
directions."

24- After taking into consideration
numerous previous decisions, in a recent
decision of the Hon'ble Supreme Court in St.
Mary's Educational Society and another
versus Rajandra Prasad Bhargava and
others, 2022 SCC OnLine SC 1091, the
Hon'ble Supreme Court has decided the
following two questions: -

"(a) Whether a writ petition under
Article 226 of the Constitution of India is
maintainable against a private unaided
minority institution?

(b) Whether a service dispute in the
private realm involving a private educational
institution and its employee can be adjudicated
in a writ petition filed under Article 226 of the
Constitution? In other words, even if a body
performing public duty is amenable to writ
jurisdiction, are all its decisions subject to
judicial review or only those decisions which
have public element therein can be judicially
reviewed under the writ jurisdiction?"

25- The Hon'ble Supreme Court has been
pleased to answer the questions in the following
words: -

"69. We may sum up our final
conclusions as under:--

(a) An application under Article
226 of the Constitution is maintainable
against a person or a body discharging
public duties or public functions. The
public duty cast may be either statutory or
otherwise and where it is otherwise, the
body or the person must be shown to owe
that duty or obligation to the public
involving the public law element. Similarly,
for ascertaining the discharge of public
function, it must be established that the
body or the person was seeking to achieve
the same for the collective benefit of the
public or a section of it and the authority to
do so must be accepted by the public.

(b) Even if it be assumed that an
educational institution is imparting public
duty, the act complained of must have a
direct nexus with the discharge of public
duty. It is indisputably a public law action
which confers a right upon the aggrieved to
invoke the extraordinary writ jurisdiction
under Article 226 for a prerogative writ.
Individual wrongs or breach of mutual
contracts
without
having
any
public
element as its integral part cannot be
rectified through a writ petition under
Article
226.
Wherever
Courts
have
intervened in their exercise of jurisdiction
under Article 226, either the service
conditions were regulated by the statutory
provisions or the employer had the status of
"State" within the expansive definition
under Article 12 or it was found that the
action complained of has public law
element.

(c) It must be consequently held
that while a body may be discharging a
public function or performing a public
duty and thus its actions becoming
amenable
to
judicial
review
by
a
Constitutional Court, its employees would
not have the right to invoke the powers of
the High Court conferred by Article 226 in
respect of matter relating to service where
1192 INDIAN LAW REPORTS ALLAHABAD SERIES
they are not governed or controlled by the
statutory
provisions.
An
educational
institution may perform myriad functions
touching various facets of public life and in
the societal sphere. While such of those
functions as would fall within the domain of
a "public function" or "public duty" be
undisputedly
open
to
challenge
and
scrutiny
under
Article
226
of
the
Constitution, the actions or decisions
taken solely within the confines of an
ordinary contract of service, having no
statutory force or backing, cannot be
recognised
as
being
amenable
to
challenge under Article 226 of the
Constitution. In the absence of the service
conditions being controlled or governed by
statutory provisions, the matter would
remain in the realm of an ordinary contract
of service."

(Emphasis supplied)

26- In Committee of Management,
St. John Inter College v. Girdhari Singh,
(2001) 4 SCC 296, the Hon'ble Supreme
Court held that: -

"Since no appropriate guidelines
have been provided for exercise of power
under Section 16-G(3)(a) of the Act, it must
be held that such an uncanalised power on
the Inspector or the Inspectress would
tantamount to an inroad into the power of
disciplinary control of the Managing
Committee of the minority institution over
its employees and as such the said
provision would not apply to the minority
institution, as was held by this Court in
Frank Anthony case (1986) 4 SCC 707.

* * *

The legislative intent is thus
apparent that the legislature never intended
to subject the order of termination of an
employee of a minority institution to the
approval/disapproval
of
the
Selection
Board. In this view of the matter, it is
difficult for us to hold that an order of
termination of an employee of a minority
institution cannot be given effect to, unless
approved
by
either
the
Inspector/Inspectress,
as
provided
in
Section 16-G(3)(a) or by the Selection
Board, as provided under U.P. Act 5 of
1982. Under the provisions, as they stand,
the conclusion is irresistible that the
question of prior approval of the competent
authority in case of an order of termination
of an employee of a minority institution
does not arise."

27- From a reading of the aforesaid
judgments, the law as summarized in St.
Mary's (Supra) is that the employees of a
private educational institution would not
have the right to invoke the powers of the
High Court conferred by Article 226 in
respect of matters relating to service where
they are not governed or controlled by the
statutory provisions. In light of St. John
Inter College (Supra), the provisions of
Section 16 G (3) of the U. P. Intermediate
Education Act are not applicable to the
teachers employed in private minority
institutions. There is no other Statutory
provision, which is alleged to have been
violated in the instant case. Therefore, we
find ourselves in agreement with the view
taken by the Hon'ble Single Judge that the
Writ Petition filed by a former teacher
against the private unaided minority
institution challenging the order of his
termination and seeking restitution of his
service, is not maintainable.

28- The Writ Petition would not
maintainable for one more reason that there
are several disputed questions of fact
1 All. Rafiq Ahamad Vs. Jalil Ahmad & Anr.
1193
involved in the case. The appellant claims
that he had been duly selected and
appointed, but he has not filed a copy of the
appointment
letter
or
a
contract
of
appointment
from which
his
service
conditions may be ascertained. The college
has contended neither any advertisement
had been issued nor any selection was held
and on a personal request made by the
appellant, he had been orally engaged to
work and after he had worked merely for
about 4 months, he misbehaved with the
Principal of the college and the Principal
had filed a First Information Report against
him on 31.03.1992. The appellant did not
perform
his
duties
since
thereafter.
Whether or not the appellant was duly
selected and appointed, and what were his
service conditions, are facts which are in
dispute and regarding which no material is
available on record. For this reason also,
the
Writ
Petition
would
not
be
maintainable.

29- In view of the aforesaid
discussion, we find ourselves in agreement
with the view taken by the Hon'ble Single
Judge that the Writ Petition filed by the
appellant was not maintainable and we do
not find any reason to interfere in the
Judgment of the Hon'ble Single Judge.

30- The Special Appeal lacks merits
and, accordingly, it is dismissed.

31- However, there will be no order
as to costs.
----------
(2023) 1 ILRA 1193
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.01.2023

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Special Appeal. No. 16 of 2023

Rafiq Ahamad ...Appellant
Versus
Jalil Ahmad & Anr. ...Respondents

Counsel for the Appellant:
Sri Gyanendra Singh

Counsel for the Respondents:

A. Civil Law - Contempt Jurisdiction - Civil
Procedure Code, 1908 - Order VI Rule 17 -
The
court
cannot,
in
the
guise
of
exercising contempt jurisdiction, grant
substantive relief not covered by the order
which is subject matter of the proceedings
and that a substantive relief not covered
by
the
initial
order
could
not
be
considered in contempt proceedings. The
directions issued by the contempt judge which
virtually
amounts
to
supplementing
the
directions contained in the original order is
beyond
jurisdiction
and
cannot
be
countenanced. (Para 6, 7)

The primary contention of the appellant is that
the direction of the Writ Court, while dismissing
the application filed by the appellant u/s 482
Cr.P.C.,
was
to
proceed
with
the
trial
expeditiously and decide the same, without
accommodating request for adjournment made
either on behalf of plaintiff or defendant within
a period of one year, but the Contempt Court,
while adjudicating the contempt application filed
by the appellant, has gone beyond the
directions of the Writ Court and erred in
observing that in case any adjournment is given
under compelling circumstances, then, the same
shall not be granted without heavy cost.
Therefore, the same is liable to be set-aside.
(Para 5)

As per the aforesaid proposition of law and the
facts and circumstances of the instant case, the
directions issued by the Contempt Judge while
passing the impugned order to the extent that
'in case any adjournment is given under
compelling circumstances, then the same shall