# Public School & another v. M.K

- **Citation:** (2010) 3 ILRA 1203
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-11-02
- **Case number:** Civil Misc. Writ Petition No. 19956 of 2008
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/public-school-another-v-m-k-41749
- **Pages:** 3

## Headnote

Constitution
of
India
Art.
226-Writ
Petition maintainiblity-petition filed by
the
teachers
working
in
private
institution-recognition of by CBSE Board
for examination purpose-not receiving
any
financial
aid
either
by
central
government or by Corporation-held-writ
not maintainable.

Held: Para 8

In view of the Full Bench decision of this
Court the petitioner working in a private
institution, which is not a "State" with
the
meaning
of
Article
12
of
the
Constitution of India, I find no option
but to hold that this writ petition is not
maintainable. Admittedly the institution,
in which the petitioner was employee, is
a private institution and is not financed
in any manner or otherwise is controlled
by the Central Board of Secondary
Education nor is receiving grant-in-aid
from the State Government or Central
government or the Government or its
authority play any role except to the
extent that recognition is being granted
for holding examination of Secondary
classes.
Case law discussed:
2005 (4) ESC 2265, Civil Appeal No. 339 of
2007, Writ Petition No.29743 of 2009, Special
Appeal No.757 of 2001, Special Appeal No.
956 of 2006.

## Text

3 All] Jagdish Narain V. Union of India and others
1203
two months thereafter.

10. No costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.11.2010

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 19956 of 2008

Jagdish Narain

 ...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri S.C. Kushwaha
Sri Lal Mani Bind

Counsel for the Respondents:
Sri H.N. Pandey
S.C.
Constitution
of
India
Art.
226-Writ
Petition maintainiblity-petition filed by
the
teachers
working
in
private
institution-recognition of by CBSE Board
for examination purpose-not receiving
any
financial
aid
either
by
central
government or by Corporation-held-writ
not maintainable.

Held: Para 8

In view of the Full Bench decision of this
Court the petitioner working in a private
institution, which is not a "State" with
the
meaning
of
Article
12
of
the
Constitution of India, I find no option
but to hold that this writ petition is not
maintainable. Admittedly the institution,
in which the petitioner was employee, is
a private institution and is not financed
in any manner or otherwise is controlled
by the Central Board of Secondary
Education nor is receiving grant-in-aid
from the State Government or Central
government or the Government or its
authority play any role except to the
extent that recognition is being granted
for holding examination of Secondary
classes.
Case law discussed:
2005 (4) ESC 2265, Civil Appeal No. 339 of
2007, Writ Petition No.29743 of 2009, Special
Appeal No.757 of 2001, Special Appeal No.
956 of 2006.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri S.C.Kushwaha for the
petitioner and Sri H.N.Pandey for the
respondents and perused the record.

2. The petitioner is a teacher in a
private institution namely Sarswati Vidya
Mandir, Senior Secondary School, Etah
which is affiliated to Central Board of
Secondary Education and having been
terminated by the Management of the
Institution, has preferred the present writ
petition.

3. Sri H.N.Pandey, learned counsel
appearing for the respondents has raised
preliminary objection that the writ petition
is not maintainable and has placed reliance
on a Full Bench decision in M.K.Gandhi
& others Vs. Director of Education
(Secondary U.P., Lucknow & others 2005
(4) ESC 2265 as also the Apex Court
decision in appeal taken up from that
judgment as Civil Appeal No. 339 of 2007
(Committee
of
Management,
Delhi
Public School & another Vs. M.K.
Gandhi and others) decided on 16th
August, 2007 which both have been
referred to in Smt. (Dr.) Deepa Agarwal
Vs. State of U.P. & others in Writ Petition
No.29743 of 2009 decided on 11th June,
2009.

4. Learned counsel for the petitioner
placed reliance on a Division Bench
decision in Sandeep Chauhan and others
Vs. State of U.P. and others in Special
1204 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Appeal No.757 of 2001 decided on 11th
July, 2001. He also relied on another
decision in Sanjai Kumar Sharma Vs.
Central Board of Secondary Education
& Ors. Special Appeal No.956 of 2006
decided on 11th September, 2006 but a bare
perusal thereof shows that in the aforesaid
judgments, the decisions of Full Bench and
Apex Court, noticed above, have not been
noticed by the Division Bench and both the
aforesaid decisions have been rendered
without looking to the said two decisions
which are binding on this Court being the
judgments of not only the larger Bench but
of the Apex Court also. Moreover, the facts
in the aforesaid judgments would make it
clear that the institution were not the private
institution but it was an institution of the Air
Force and this Court came to the conclusion
that considering the facts and circumstances
of such an institution, it cannot be held that
such an institution is not a State under
Article 12 of the Constitution of India
which is not the case in hand.

5. In the case in hand, admittedly, the
institution in which the petitioner was
employee is a private institution which do
not come within the ambit of 'State' under
Article 12 of the Constitution of India. The
following extract of the judgement in the
case of Sanjai Kumar Sharma (supra)
makes a difference between the institution
involved in the case of Sanjai Kumar
Sharma (supra) and the present one:

"The Education Code handed up to us,
which has been framed by the Chairman of
the Board of Governors of the Indian Air
Force Education and Cultural Society,
bears the emblem of the Indian Air Force on
its top cover. Chapter 8 Rule 9 of the said
book deals with how the finances are
received, grant in aid as well as
interconnection
with
other
service
institution funds, is mentioned."

6. So far as Division Bench decision
in Sandeep Chauhan (supra) is concerned,
since the matter is covered by the Full
Bench decision as also Apex Court
judgment dated 16th August, 2007, this
Court is bound by the decision of the larger
Bench as well as the Apex Court. It would
be appropriate to quote para 2 of my
judgment in Smt. (Dr.) Deepa Agarwal
(supra) wherein the details of the decisions
observed by the Apex Court has been
quoted which reads:

"In M.K. Gandhi & others Vs.
Director of Education (Secondary) U.P.,
Lucknow & others 2005 (4) ESC 2265, it
has been held that such a writ petition is not
maintainable. In the Civil Appeal No. 339
of 2007 (Committee of Management, Delhi
Public School & another Vs. M.K. Gandhi
and others) preferred against the said
judgment of this Court, the Apex Court in its
judgment dated 16.8.2007, while confirming
the view of this Court, has further held that
no direction can be issued to C.B.S.E.
interfering with the termination of Teachers
and held as under:

"When the Allahabad High Court has
already held that the DPS School is not a
State within the meaning of Article 12 of the
Constitution of India and the writ petition is
not maintainable, there was no necessity for
giving a direction to the CBSE which
virtually amounts to granting a declaration
in favour of those teachers whose services
have been terminated. We fail to appreciate
the view taken by the Allahabad High Court
by unnecessarily complicating the issue by
involving the CBSE for a private dispute
between the teachers and the DPS. The
Allahabad High Court should have stop
short of holding that the said DPS is a
3 All] Smt.Mithilesh Kumari and others V. State of U.P. and others
1205
private
body
and
the
writ
is
not
maintainable. Hence, we are of the view
that no writ is maintainable against a
private school as it is not a 'State' within the
meaning of Article 12 of the Constitution of
India and no direction could have been
given by the High Court to the CBSE for
interfering with the termination of the
teachers. The proper remedy for the
teachers was to file a civil suit for damages,
if there was any. Consequently, we allow
this appeal and set aside the order passed
by the Allahabad High Court to the extent of
giving a direction to the Board. There will
be no order as to cots."

7. So far as the decision in Special
Appeal No.611 of 2008, Union of India &
others Vs. Somendra Gupta & others
relied by the learned counsel for the
petitioner is concerned, therein in para 10
and 11 of the judgment, the Division Bench
clearly has held as under:

"10. Learned Single Judge will
therefore
decide
the
question
of
maintainability of the petition as to whether
the Society concerned is a State and
whether the petition is maintainable, and if
so maintainable, will decide as to whether
on facts the respondent nos. 1 to 4 are
entitled to the relief claimed for.

11. In view of the aforesaid facts and
circumstances the appeal is allowed. The
petition will go to the file of the Single
Judge. We request him to decide it at the
earliest. We make it clear that this Court
has not given any finding one way or the
other as to whether the Society is a State or
it is not."

8. In view of the Full Bench decision
of this Court the petitioner working in a
private institution, which is not a "State"
with the meaning of Article 12 of the
Constitution of India, I find no option but to
hold that this writ petition is not
maintainable. Admittedly the institution, in
which the petitioner was employee, is a
private institution and is not financed in any
manner or otherwise is controlled by the
Central Board of Secondary Education nor
is receiving grant-in-aid from the State
Government or Central government or the
Government or its authority play any role
except to the extent that recognition is being
granted
for
holding
examination
of
Secondary classes.

9. The writ petition is accordingly
dismissed as not maintainable.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.11.2010

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE VIRENDRA SINGH, J.

Civil Misc. Writ Petition No. 23624 of 2010

Smt.Mithilesh Kumari and others...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioner:
Sri C.P.Gupta
Sri Keshri Nath Tripathi

Counsel for the Respondent:
C.S.C.
Sri Satish Mandhyan

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