# Mrs. Pratibha Tripathi v. U.O.I. & Ors

- **Citation:** (2023) 9 ILRA 771
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-21
- **Case number:** Writ-A No. 10379 of 2023
- **Bench:** Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mrs-pratibha-tripathi-v-u-o-i-ors-50749
- **Pages:** 5

## Headnote

Civil Law - Constitution of India,1950 -
Article 226 - Service dispute - Petitioner
working as Assistant Teacher in privately
run school recognized by Council for
Indian School Certificate Examination,
New Delhi - Retirement notice issued as
per age of superannuation - Claim of
continuation till end of academic session
as per U.P. Government rules - Held, such
rules not applicable to private unaided
schools - Service conditions not governed
by statutory provisions - No public law
element involved . Writ not maintainable.

Held:
School run by private society and recognized by
ICSE Council is not governed by rules applicable
to government schools or those under U.P.
Basic Education Board. Retirement policy based
on academic session not binding. In absence of
statutory service rules, writ jurisdiction under
Article 226 cannot be invoked for purely
contractual disputes.

Petition Dismissed.

Relied on:

St. Mary's Education Society & anr. Vs Rajendra
Prasad Bhargav & ors., (2023) 4 SCC 498 -
Discussed and applied.

## Text

9 All. Mrs. Pratibha Tripathi Vs. U.O.I. & Ors.
771
never been changed, merely on the basis of
third party complaint cannot be sustained in
law and so deserves to be quashed.
Accordingly, writ petition succeeds and is,
allowed. The order dated 19.02.2020
(Annexure no.5 to the writ petition) is
hereby quashed.

16. The petitioner shall be treated to
be in service as per the date of birth
recorded as 01.01.1963 in the service book
and shall be paid all emoluments and other
service benefits including pension etc.
accordingly.

17. Original records are returned to
learned Standing Counsel appearing for the
State.
----------
(2023) 9 ILRA 771
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2023

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Writ-A No. 10379 of 2023

Mrs. Pratibha Tripathi ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mani Shanker Pandey

Counsel for the Respondents:
A.S.G.I., Sri Jai Prakash Rai

Civil Law - Constitution of India,1950 -
Article 226 - Service dispute - Petitioner
working as Assistant Teacher in privately
run school recognized by Council for
Indian School Certificate Examination,
New Delhi - Retirement notice issued as
per age of superannuation - Claim of
continuation till end of academic session
as per U.P. Government rules - Held, such
rules not applicable to private unaided
schools - Service conditions not governed
by statutory provisions - No public law
element involved . Writ not maintainable.

Held:
School run by private society and recognized by
ICSE Council is not governed by rules applicable
to government schools or those under U.P.
Basic Education Board. Retirement policy based
on academic session not binding. In absence of
statutory service rules, writ jurisdiction under
Article 226 cannot be invoked for purely
contractual disputes.

Petition Dismissed.

Relied on:

St. Mary's Education Society & anr. Vs Rajendra
Prasad Bhargav & ors., (2023) 4 SCC 498 -
Discussed and applied.

(Delivered by Hon'ble Manjive Shukla, J.)

1. Heard learned counsel appearing
for the petitioner and Mr. Jai Prakash Rai,
learned
counsel
appearing
for
the
Respondent No.1.

2. Petitioner through this writ petition
has challenged the retirement notice dated
28th March, 2023 issued by the Manager,
Jyoti
Niketan
School,
Atlas
Pokhra,
Azamgarh, whereby petitioner has been
directed to retire from service on 27.6.2023.

3. Facts of the case, in brief, are that
Jyoti
Niketan
School,
Atlas
Pokhra,
Azamgarh is being run by a private society
registered under the Societies Registration
Act, 1860 and is recognized by the Council
for Indian School Certificate Examination,
New Delhi.

4. Petitioner was appointed on the
post of Assistant Teacher by the Principal
772 INDIAN LAW REPORTS ALLAHABAD SERIES
of Jyoti Niketan School vide appointment
order dated 1.7.2000. Petitioner pursuant to
her appointment order continued to work in
the school and as per her date of birth she
was to attain the age of 60 years on
27.6.2023, therefore the Manager of the
school issued a letter to the petitioner on
28.3.2023 thereby petitioner was informed
that she after attaining the age of
superannuation will retire on 27.6.2023.

5. Learned counsel appearing for the
petitioner has vehemently argued that since
the teachers working in the institutions of
the State Government as well as teachers
working in the schools of U.P. Basic
Education Board are to retire at the end of
academic
session
and
further
since
academic session in the schools of the State
Government starts from 1st of April and
ends on 31st of March in the next year and
since the petitioner's date of retirement
falls on 27.6.2023, therefore she is entitled
to continue till 31st March, 2024.

6. Learned counsel appearing for the
Respondent No.1 has vehemently argued
that Jyoti Niketan School, Atlas Pokhra,
Azamgarh is a school run by a private
society and is recognized by the Council
for Indian School Certificate Examination,
New Delhi, therefore the rules and
regulations of the State Government
applicable over the schools run by U.P.
Basic Education Board and schools run by
the State Government are not applicable
over the school of the petitioner.

7. Learned counsel appearing for the
petitioner could not point out as to how the
rules of the Government of U.P. applicable to
the government schools and the schools run
by U.P. Basic Education Board are applicable
over the school of the petitioner. Learned
counsel for the petitioner has only submitted
that the schools which are recognised by the
Council
for
Indian
School
Certificate
Examination, New Delhi are required to take
"No objection certificate" from the State
Government and therefore, all the rules and
regulations applicable over the schools of the
State Government are applicable over the
school of the petitioner.

8. Learned counsel appearing for the
Respondent No.1 has submitted that merely
because the State Government has given 'No
objection certificate' for recognition of the
school of the petitioner by the Council for
Indian School Certificate Examination, New
Delhi, the rules and regulations applicable
over the schools of the State Government and
the schools run by the U.P. Basic Education
Board, Prayagraj shall not apply over the
school of the petitioner.

9. Learned counsel appearing for the
Respondent No.1 has submitted that even
otherwise the Hon'ble Supreme Court vide its
judgment rendered in the case of St. Mary's
Education
Society
and
another
vs.
Rajendra Prasad Bhargav and others,
reported in (2023) 4 SCC 498 has
categorically held that the service disputes of
the employees working in the schools run by
the private societies are not amenable to writ
jurisdiction of the High Court under Article
226 of the Constitution of India. Relevant
portions of the judgment rendered in the case
of St. Mary's Education Society (supra) are
extracted as under:-

"2. In the present appeal, two
pivotal issues fall for consideration of this
Court:

2.1. (a) Whether a writ petition
under Article 226 of the Constitution of
India is maintainable against a private
unaided minority institution?
9 All. Mrs. Pratibha Tripathi Vs. U.O.I. & Ors.
773

2.2. (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?

3. 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?

4. The aforesaid two questions, though not
vexed, nevertheless despite plethora of case
laws, always give rise to a debate.

xxxxxxxxxxxxxxxx

75. We may sum up our final
conclusions as under:

75.1.
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.

75.2. 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
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 it was found that the
action complained of has public law
element.

75.3. 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 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.
774 INDIAN LAW REPORTS ALLAHABAD SERIES

75.4. Even if it be perceived that
imparting education by private unaided the
school is a public duty within the expanded
expression of the term, an employee or a
non-teaching staff engaged by the school
for the purpose of its administration or
internal management is only an agency
created by it. It is immaterial whether "A"
or "B" is employed by school to discharge
that duty. In any case, the terms of
employment of contract between a school
and non-teaching staff cannot and should
not be construed to be an inseparable part
of the obligation to impart education. This
is particularly in respect to the disciplinary
proceedings that may be initiated against a
particular employee. It is only where the
removal of an employee of non-teaching
staff is regulated by some statutory
provisions, its violation by the employer in
contravention of law may be interfered with
by the court. But such interference will be
on the ground of breach of law and not on
the basis of interference in discharge of
public duty.

75.5. From the pleadings in the
original writ petition, it is apparent that no
element of any public law is agitated or
otherwise made out. In other words, the
action challenged has no public element
and writ of mandamus cannot be issued as
the action was essentially of a private
character.

76. In view of the aforesaid
discussion, we hold that the learned single
Judge of the High Court was justified in
taking the view that the original writ
application filed by the respondent No. 1
herein
under
Article
226
of
the
Constitution is not maintainable. The
Appeal Court could be said to have
committed an error in taking a contrary
view.

9. I have considered the submissions
advanced by learned counsels appearing for
the parties and I find that school of the
petitioner i.e. Jyoti Niketan School is being
run by a private body and is recognized by
the Council for Indian School Certificate
Examination, New Delhi. I further find that
petitioner's service conditions in Jyoti
Niketan School are not governed by any
statutory provisions.

10. Submission made by learned
counsel appearing for the petitioner that
rules and regulations made by the State
Government applicable over the schools
run by the State Government and the
schools run by U.P. Basic Education Board
are applicable over the school of the
petitioner, is absolutely misconceived as
admittedly the school of the petitioner is
run by a private society and is recognised
by
the
Council
for
Indian
School
Certificate Examination, New Delhi,
therefore it is patently manifest that rules
and regulations made by the State
Government in respect of the academic
session and also in respect of the teachers
that if the date of retirement falls in
between the academic session, they will
be allowed to continue till the end of
academic session, shall not be applicable
over the employees of the petitioner's
school.

11. Hon'ble Supreme Court vide its
judgment rendered in the case of St. Mary's
Education Society (supra) has categorically
held that where service conditions of
employee working in a private institution
are not governed by statutory provisions,
then the service dispute of the said
employee is not amenable to writ
jurisdiction of High Court enshrined
under Article 226 of the Constitution of
India.
9 All. Uttar Pradesh Power Corp. Contract Employees Sangh, Lko Vs. State of U.P. & Ors.
775

12. Since the service conditions of
the petitioner are not governed by any
statutory provisions, therefore the present
writ petition filed by the petitioner is not
maintainable
and
is
liable
to
be
dismissed.

13. In view of the aforesaid law laid
down by Hon'ble Supreme Court, writ
petition filed by the petitioner is not
maintainable and thus is dismissed.
----------
(2023) 9 ILRA 775
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.07.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 10459 of 2023

Uttar
Pradesh
Power
Corp.
Contract
Employees Sangh, Lko ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Braj Mohan Singh, Shikha Singh Gautam

Counsel for the Respondents:
C.S.C., Sri Adarsh Bhushan, Sri Devesh
Vikram

Held:
Contractual
employees
working
under
outsourced agency cannot claim reinstatement
upon termination, even if the termination
followed participation in an illegal strike. No
privity of contract exists with the Corporation in
such cases. The strike in question was in
violation of ESMA notification. Reinstatement
relief is barred under Specific Relief Act, 1963.
Judicial interference is not warranted when
termination follows a strike that disrupts
essential services.

Case Law Discussed:
1. Rajesh Kumar Singh Vs District Basic
Education Officer & ors., 2022 (4) ADJ 535

2. Rajesh Bhardwaj Vs U.O.I. & ors., 2019 (2)
ADJ 830 (DB)

3. Kailash Singh Vs The Managing Committee,
Mayo College, Ajmer & ors., (2018) 10 SCALE
638

Key Legal Point:

Relief of reinstatement cannot be granted to
contract employees under Article 226. Specific
performance of a contract of personal service is
not enforceable under the law unless governed
by statutory provisions.

(Delivered by Hon'ble J.J. Munir, J.)

1. Heard Mr. Braj Mohan Singh,
learned Counsel for the petitioner, Ms.
Monika Arya, learned Additional Chief
Standing Counsel on behalf of respondent
Nos.1 and 2, Mr. Devesh Vikram, learned
Counsel appearing on behalf of respondent
Nos.3 and 5 and Mr. Adarsh Bhushan,
learned Counsel appearing on behalf of
respondent No.6.

2. This writ petition under Article 226
of the Constitution has been filed by the
Uttar Pradesh Power Corporation Contract
Employees Sangh, Lucknow through its
General Secretary.

3. It is the petitioner's case that the
petitioner is a registered union of contract
employees, all of whom are employed with
the Electricity Department in the District of
Kushi Nagar, besides the entire State of
Uttar Pradesh. The Managing Committee
of the petitioner by a resolution dated
28.05.2023 have authorized the General
Secretary of the Union, Devendra Kumar
Pandey, to file this writ petition on behalf
of the aggrieved members of the union. It