# Surya Prakash Mishra v. State of U.P. & Ors

- **Citation:** (2024) 10 ILRA 214
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-21
- **Case number:** Special Appeal Defective No. 551 of 2024
- **Bench:** Attau Rahman Masoodi, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surya-prakash-mishra-v-state-of-u-p-ors-51124
- **Pages:** 7

## Headnote

Civil Law - Constitution of India,1950 -
Article 226 - UP Intermediate Education
Act, 1921 - Section 16-G-(3)- Special
Appeal - against dismissal of Writ Petition - filed
by the appellant, who is a Teacher in a private
School, challenging the impugned order of
termination of his services - learned Single
Judge dismissed the writ petition on the ground
of maintainability of writ petition in view of law
laid down by Apex court in St. Mary's
Education Society' case - while relying upon
another judgment rendered by High Court of
Madhya Pradesh at Indore in Vinita's case, plea
has been taken that, St. Mary's Education
Society's case deals only with the non-teaching
employees and the ratio laid down in that case
would not apply to the appellant who was a
teacher - court while relying upon the judgment
of Apex court in Army Welfare Education
Society's case which dealt with both teachers
and members of non-teaching staff, held that,
writ petition filed for challenging the termination
of service contract of a teacher working in a
private institution will not be maintainable. (Para
- 19, 20)

Appeal Dismissed. (E-11)

List of Cases cited:

## Text

214 INDIAN LAW REPORTS ALLAHABAD SERIES
2024 and Civil Misc. Review Application
Defective No.117 of 2024 respectively.

26. As a sequel to the above, the
present Special Appeal is dismissed.

27. There shall be no order as to
the costs.
----------
(2024) 10 ILRA 214
APPELLATEJURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.10.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Special Appeal Defective No. 551 of 2024

Surya Prakash Mishra ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Tanay
Hazari,
Alka
Verma,
Jhanak
Bhawnani

Counsel for the Respondents:
C.S.C.

Civil Law - Constitution of India,1950 -
Article 226 - UP Intermediate Education
Act, 1921 - Section 16-G-(3)- Special
Appeal - against dismissal of Writ Petition - filed
by the appellant, who is a Teacher in a private
School, challenging the impugned order of
termination of his services - learned Single
Judge dismissed the writ petition on the ground
of maintainability of writ petition in view of law
laid down by Apex court in St. Mary's
Education Society' case - while relying upon
another judgment rendered by High Court of
Madhya Pradesh at Indore in Vinita's case, plea
has been taken that, St. Mary's Education
Society's case deals only with the non-teaching
employees and the ratio laid down in that case
would not apply to the appellant who was a
teacher - court while relying upon the judgment
of Apex court in Army Welfare Education
Society's case which dealt with both teachers
and members of non-teaching staff, held that,
writ petition filed for challenging the termination
of service contract of a teacher working in a
private institution will not be maintainable. (Para
- 19, 20)

Appeal Dismissed. (E-11)

List of Cases cited:

1. St. Mary's Education Society Vs. Rajendra
Prasad Bhargava & ors. (2023 4 SCC 498),

2. Vinita Vs U.O.I.(2022 SCC online MP 3745),

3. Devesh Verma Vs Christ Church College (2023
SCC online All 7),

4. Army Welfare Education Society, New Delhi
Vs Sunil Kumar Sharma (2024 SCC online SC
1683).

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

 (Order on C.M. Application No.
I.A. 1 of 2024)

1. Heard Smt. Alka Verma, the
learned counsel for the appellant and the
learned Standing Counsel for the State.

2. This is an application for
condonation of delay in filing the special
appeal against the judgment and order
dated 21.3.2024 passed by the Hon'ble
Single Judge of this Court in Writ A No.
2377 of 2024.

3. In the affidavit filed in support of
the application, it has been stated that the
appellant is based at New Delhi and is
suffering from chronic fever. It is also
stated in the affidavit that after termination
of his service, the appellant was facing
financial crisis. The learned Standing
10 All. Surya Prakash Mishra Vs. State of U.P. & Ors.
215
Counsel has not seriously opposed the
application for condonation of delay.

4. The application for condonation of
delay is allowed and the delay in filing the
Special Appeal is condoned.

(Order on Appeal)

5. The instant appeal is directed
against the judgment and order dated
21.03.2024 passed by the Hon'ble Single
Judge in Writ A No. 2377 of 2024, which
was filed challenging termination of the
appellant's service on the post of Teacher
in D.A.V. Public School, Ambedkar Nagar,
Uttar Pradesh, which is a private school.

6. The Hon'ble Single Judge
dismissed the Writ Petition as nonmaintainable in view of the law laid down
in the case of St. Mary's Education
Society
versus
Rajendra
Prasad
Bhargava and others: (2023) 4 SCC 498.
The learned counsel for the appellant ably
attempted to distinguish the case on the
ground that the judgment in the case of St.
Mary's
Education
Society
(Supra)
pertains to non-teaching staff whereas the
appellant was working on the post of the
Teacher. However, the Hon'ble Single
Judge held that in St. Mary's Education
Society (Supra), the Supreme Court has
clearly held that the employees of a private
institution would not have the right to
invoke the jurisdiction under Article 226 of
the Constitution of India in respect of the
matters relating to service contracts, where
they are not governed or controlled by any
statutory provisions and also that an
educational institution may be performing
myriad functions touching upon various
facets of public duty but a contract of
service being an offer and acceptance of
terms between two private entities would
not fall within the realm of public functions
regulated by public law.

7. Smt. Alka Verma, the learned
counsel for the appellant has submitted that
the judgment in St. Mary's Education
Society (Supra) deals with the non-teaching
employees and the ratio laid down in that
case would not apply to the appellant who
was a teacher. She has relied upon a
decision rendered by a Single Judge Bench
of the High Court of Madhya Pradesh at
Indore in Vinita v. Union of India, 2022
SCC OnLine MP 3745 wherein it has been
held that the judgment of St. Mary's
Education Society (Supra) would not
apply to teachers of private institutions.

8. A perusal of the judgment in the
case of Vinita (Supra) indicates that the
Madhya Pradesh High Court has noted the
preliminary objection that the writ petition
was not maintainable in view of the
judgment passed by the Apex court in the
case of St. Mary's Education Society
(Supra) and while dealing with this
preliminary objection the Madhya Pradesh
High Court has merely stated that the
"applicability of this judgment has already
been considered by Single Bench as well as
by Division Bench, therefore, there is no
need to reconsider the issue while deciding
this petition finally".

9. The judgment in which the
Single Judge and the Division Bench
judgments referred to in Vinita Nair
(supra),
wherein
the
question
of
applicability of St. Mary's Education
Society (supra) was considered, have not
been placed before this Court.

10. St. Mary's Education Society
runs
a
private
unaided
educational
institution. Respondent 1 in the appeal -
216 INDIAN LAW REPORTS ALLAHABAD SERIES
Rajendra Prasad Bhargava, was serving as
an office employee of the society. He had
filed
a
Writ
Petition
challenging
termination of his services. A Single Judge
Bench of Madhya Pradesh High Court
dismissed
the
Writ
Petition
as
not
maintainable but a Division Bench set aside
the judgment and order and held that a writ
petition filed by an employee of a private
unaided minority educational institution
seeking to challenge his termination from
service is maintainable. The following two
pivotal issues fell for consideration of the
Hon'ble Supreme Court: -

 (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?

11. The Hon'ble Supreme Court
answered the aforesaid questions in the
following words: -

 "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 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.

 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
10 All. Surya Prakash Mishra Vs. State of U.P. & Ors.
217
Constitution, the actions or decisions
taken solely within the confines of an
ordinary contract of service, having no
statutory force or backing, cannot be
recognized
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.

 75.4. Even if it be perceived that
imparting education by private unaided
school is a public duty within the
expanded expression of the term, an
employee of 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."

 (Emphasis added)

12. The learned Counsel for the
appellant has emphasized that paragraph
75.4 of the judgment in St. Mary's case
indicates that the Hon'ble Supreme Court
has only held that a Writ Petition regarding
service contract of a member of nonteaching staff of a private educational
institution will not be maintainable whereas
the teachers are engaged to impart
education,
which
is
a
public
duty
performed by the school. Therefore, the
service of the petitioner - teacher involved
a public law element and consequently
termination of services of a teacher of a
private educational institution can be
challenged by filing a writ petition.

13. The learned counsel for the
appellant has further submitted that the
school in question is recognized by the
Board of Secondary Education and is
governed by its rule and regulation. It is
performing public duties and therefore the
writ petition would be maintainable in
respect of the service dispute between the
appellant and the school in question.

14. Although para 75.4 of the
judgment in St. Mary's Education Society
(Supra) makes a mention of teachers, the
principles of law mentioned in paras 75.1
to 75.3 relate to all employees of private
educational
institutions,
without
any
distinction between teachers and members
of non-teaching staff.

15. In Devesh Verma v. Christ
Church College, 2023 SCC OnLine All 7,
the appellant had filed a Writ Petition
218 INDIAN LAW REPORTS ALLAHABAD SERIES
challenging his removal from the post of
Lecturer
in
Christ
Church
College,
Lucknow, on the ground that the removal
was done in violation of Section 16 G
(3) of the U.P. Intermediate Education Act,
1921. The Writ Petition was dismissed by a
Single Judge Bench as not maintainable. In
appeal, a coordinate Bench of this Court
considered numerous precedents on the
issue and held that from a reading of the
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.

16. In Army Welfare Education
Society, New Delhi versus Sunil Kumar
Sharma: 2024 SCC OnLine SC 1683, a
Single Judge of the High Court of
Uttarakhand had allowed the writ petition
by issuing a mandamus to the petitioners
not to vary the service conditions of the
teaching and non-teaching staff to their
disadvantage. During pendency of the Intra
Court Appeal, the Division Bench had
passed
an
order
was
passed
dated
06.01.2016, the relevant part whereof has
been quoted in the judgment of the Hon'ble
Supreme Court and which is being
reproduced below: -

 "3. BEG has decided to run the
institution as an Army School under the
Army Welfare Education Society (AWES),
which has also come up in appeal against
the judgment. According to AWES, it is
running 134 schools all over India. They
have a complaint that, at present, for the
past two years since 1st April 2012, they
are collecting fees at the rates they are
collecting in the other Army Public Schools
and, yet, they have been compelled to pay
the salary, which is being paid to the
teachers earlier by St. Gabriel's, which was
in fact collecting far more fees and there is
a huge deficit. According to them, they will
not terminate the services of the teachers
and non-teaching staff, if AWES is
permitted to take over; but, they will be
paid the salary in terms of the standards,
which they have in respect of the other
Army Public Schools. It is their case that
they are prepared to allow the teachers
and
non-teaching
staff
to
continue,
provided some modalities are complied
with, relevance of which may not present
itself
immediately.
According
to
the
teachers and non-teaching staff, they have
a right to continue as such.

 4. We would think that the
interest of justice requires that the
arrangement, which has been ordered by
the Court in Writ Petition No. 776 of 2015
(M/S) must be modified. Accordingly, we
modify the order and direct that AWES can
take over the management of the school
and the teaching and other non-teaching
staff will be allowed to continue, however,
with the modification that the pay will be
such as they would be entitled to treating it
as another Army Public School. This
arrangement will be provisional and
subject to the result of the litigation and
without prejudice to the contentions of the
parties. The Committee will handover the
management to the AWES upon production
of a certified copy of this order. The
accounts, etc., will also be handed over to
the Principal of the school. We record the
submission
of
the
learned
counsel
appearing for St Gabriel's that they will
handover the amount representing gratuity,
earned
leave
encashment
and
the
installment of the sixth pay commission
directly
to
the
teachers
and
other
10 All. Surya Prakash Mishra Vs. State of U.P. & Ors.
219
nonteaching staff. We make it clear that the
school can be run in terms of the Rules of
AWES otherwise. The payment of salary as
per
AWES
can
commence
from
1st January, 2016."

17. On behalf of the petitioners, it
was submitted before the Hon'ble Supreme
Court that the teaching and non-teaching
staff were employees of St Gabriel's
Academy
and
since
the
erstwhile
management has ceased to conduct the
school, the staff would have no claim as
against AWES which is conducting the
school, at present. The following two
questions of law fell for consideration of
the Hon'ble Supreme Court: -

 a. Whether the appellant Army
Welfare Education Society is a "State"
within Article 12 of the Constitution of
India so as to make a writ petition under
Article 226 of
the
Constitution
maintainable against it? In other words,
whether a service dispute in the private
realm involving a private educational
institution and its employees can be
adjudicated upon in a writ petition filed
under Article 226 of the Constitution?

 b. Even if it is assumed that the
appellant Army Welfare Education Society
is a body performing public duty amenable
to writ jurisdiction, whether all its
decisions are subject to judicial review or
only those decisions which have public law
element therein can be judicially reviewed
under the writ jurisdiction?

18. The Hon'ble Supreme Court
extensively quoted passages from the
judgment in St. Mary's Society (Supra)
and following the same, it was concluded
that: -

 "In view of the aforesaid, nothing
more is required to be discussed in the
present appeals. We are of the view that the
High Court committed an egregious error
in entertaining the writ petition filed by the
respondents
herein
holding
that
the
appellant society is a "State" within
Article 12 of the Constitution. Undoubtedly,
the school run by the Appellant Society
imparts education. Imparting education
involves public duty and therefore public
law element could also be said to be
involved.
However,
the
relationship
between the respondents herein and the
appellant society is that of an employee and
a private employer arising out of a private
contract. If there is a breach of a covenant
of a private contract, the same does not
touch any public law element. The school
cannot be said to be discharging any public
duty in connection with the employment of
the respondents."

19. The judgment in the case of
Army Welfare Education Society (Supra)
dealt with both teachers and members of
non-teaching
staff.
Therefore,
the
submission of the learned Counsel for the
appellant that the principles laid down in
the case of St. Mary's Education Society
would not apply to teachers, has no force.
The service contract was also not shown to
us protected under any statutory provision
enabling us to extend the arm of remedy by
virtue of Article 226 of the Constitution of
India.

20. In view of the aforesaid
discussions, we find ourselves in complete
agreement with the view taken by the
Hon'ble Single Judge in the order dated
21.03.2024 passed in Writ Petition 2377 of
2024, that a Writ Petition filed for
challenging the termination of service
220 INDIAN LAW REPORTS ALLAHABAD SERIES
contract of a teacher working in private
institution will not be maintainable.

21. The special appeal lack merit
and the same is dismissed.
----------
(2024) 10 ILRA 220
APPELLATEJURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.10.2024

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Special Appeal No. 937 of 2024

Ajay Kumar Pandey ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Km. Anjana, Sri Sarveshwari Prasad

Counsel for the Respondents:
C.S.C, Sri Grijesh Tiwari, Sri Nitin Chandra
Mishra.

A. Education - Admission - LLB three year
course - Eligibility -As per Brochure, a
student in order to be eligible should
possess the graduation degree relatable to
the academic session 2016 or thereafter -
However, the Law College took admission
of 55 students, who did its graduation in
the year 2008 - Admittedly no fraud was
played by the students to take admission
- Fault of the College found proved -
Adequate compensation - Determination
- Held, the Law College has acted not only
in a careless and reckless manner but also
exhibited a conduct other than bona fide
just in order to enroll and admit students
in order to charge fees playing with their
future - Division Bench enhanced the
monetary compensation from Rs. 30,000/-
to Rs. 5,00,000/-. (Para 16 and 17)

Special Appeal disposed of. (E-1)
(Delivered by Hon'ble Vikas Budhwar, J.)

1. This intra-court appeal is against
the judgment and order of the learned
Single Judge dated 28.08.2024 passed in
Writ-C No. 33767 of 2022, whereby the
writ petition preferred by the appellant-writ
petitioner challenging the orders dated
01.11.2021
and
04.01.2021
of
the
Registrar,
Deen
Dalay
Upadhyay
Gorakhpur University, Gorakhpur, second
respondent and Executive Examination
Controller,
Deen
Dayal
Upadhyay
Gorakhpur University, Gorakhpur, third
respondent was dismissed.

2. The case of the appellant before the
writ court was that there happens to be an
institution by the name of Prabha Devi
Bhagwati Prasad Vidhi Mahavidhayalay,
Anantpur, Harpur-Budhahat, Gorakhpur,
fourth respondent (in short 'Law College')
affiliated
to
Deen
Dayal
Upadhyay
Gorakhpur University, Gorakhpur (in short
'University').

3. A notification came to be
published by the University on 15.10.2019
for the grant of admission in LLB three
years course for the academic session
2019-20. As per the notification, the last
date for submission of the application form
was
23.10.2019.
According
to
the
appellant-writ petitioner in order to secure
admission, the relevant documents were to
be submitted before the Law College and
therefrom, the same were to be transmitted
to the University. As per the appellant-writ
petitioner the required documents was
though submitted before the last date i.e.
23.10.2019 before the Law College but the
same stood transmitted to the University on
10.06.2020.
Thereafter,
an
online
examination form came to be issued. The
appellant writ petitioner was accorded