IN THE HIGH COURT OF JUDICATURE AT PATNA

CWJC No.4581 of 2004

Raj Kumar Gupta, S/o Shri Ajay Kumar Gupta,
C/o Raj Kumar Hotel, Dumra Road, P.S. Town
and Distt. Sitamarhi.
-------- Petitioner
Versus
1. Central Board of Secondary Education,
Education Centre II, Community Centre,
Preet Vihar, New Delhi through its
Secretary.
2. Director, Central Board of Secondary
Education, Education Centre,II, Community
Centre, Preet Vihar, New Delhi.
3. DAV College Managing Committee, Chitra
Gupta Road, New Delhi, 110 055.
4. Regional Director, DAV Public Schools,
Patna Zone, Arya Samaj Mandir Complex, New
Bailey Road, Danapur, Patna.
5. Principal, L.S. DAV Public School, Dumra,
Sitamarhi.
--------- Respondents
For the petitioner: Mr. Yogendra Mishra,
Advocate.
For the C.B.S.E: Sri Vinay Krishna
Tripathi, Advocate.
-----------
P R E S E N T
HON’BLE MR. JUSTICE MIHIR KUMAR JHA
------------

Mihir Kumar Jha,J Having heard Mr. Yogendra Mishra,

learned counsel for the petitioner and Sri

Vinay Krishna Tripathi, learned counsel for

the C.B.S.E. as with regard to the following

relief:-

“2(i) A writ in the nature of

certiorari quashing the
letter dt. 15.10.03 issued by
the respondent no.3 as
contained in Annexure-3, be
issued.
(ii) An appropriate writ, order or
 2

direction commanding the

respondents 1 and 2 to
consider and dispose of the
petitioner‟s representations
(Annexure-4 and 5) within a
time frame, be issued.
(iii) An appropriate writ, order or
direction commanding the
respondents 3 to 5 to allow
the petitioner in continuous
service with all emoluments,
be issued.”
this Court is of the considered opinion that

as the DAV College Managing Committee

(Respondent no.3) or its Regional Director

or the Principal are not the „state‟ within

the meaning of Article 12 of the

Constitution, no writ application can be

maintained by the petitioner as against

them. Since the relief no. 2(i) & (iii), as

quoted above, are exclusively against the

respondent nos.3 to 5, this writ

application, must fail only on account of

its being not maintainable.

2. Mr. Mishra, however, with

reference to the relief sought in paragraph

no. 2(ii) of this writ application, has

submitted that since the school, in

 3

question, though being run by the private

Managing Committee, is affiliated to the

Central Board of Secondary Education

(C.B.S.E.), the C.B.S.E. was required to

dispose of the representation filed by the

petitioner against the order of his removal

from service passed by the Managing

Committee of the school. To that extent, he

would also rely on Clause-19 of the

agreement by virtue of which the petitioner

came in service, reading as follows:-

“19. The committee and the Party

No.1 agree that any dispute
arising out of or relating to
this contract including any
disciplinary action leading to
the dismissal or removal from
service or reduction in rank
etc. shall be referred for
arbitration of any person to be
nominated by the Chairman of
Society running the School and
if the arbitrator fails or
neglects to act or becomes
incapacitated, the Chairman of
the society shall nominate any
other person to fill the
vacancy of arbitrator.”
3. Mr. Vinay Kirshna Tripathy,

learned counsel for the C.B.S.E., however,

 4

points out that there is no obligation on

the part of the C.B.S.E. to look into the

service condition of the petitioner,

inasmuch as, he was appointed on the post of

Teacher by the D.A.V. Public School, Dumra

being managed by D.A.V. College Managing

Committee. He has also submitted that the

C.B.S.E. has no role to play, inasmuch as,

C.B.S.E has no disciplinary control over the

teaching and non teaching employees of any

school having its affiliation.

4. In the considered opinion of this

Court, the reliance placed by Mr. Mishra,

learned counsel for the petitioner on the

aforementioned Clause-19 of the contract as

provided in the affiliation Bye laws is

wholly misplaced. It has to be taken into

consideration in Chapter-VII, prescribing

service rules for employees in the

affiliation Bye laws, the power of

appointment and administrative control as

well as disciplinary control of the teaching

and non-teaching employees of an affiliated

school to C.B.S.E has been vested

exclusively in the Managing Committee of

 5

such affiliated school. That is how, Bye

law 24(1) of Chapter-VII under the heading

„Service Rules For Employees‟ lays down that

each school affiliated with C.B.S.E shall

frame its own service rules for its

employees and Bye law 24(2) thereof

envisages execution of a service contract

between the management of such affiliated

school, described on one hand and in the

prescribed format of agreement contained in

Appendix-III.

5. In this context it would be also

useful to extract the beginning paragraph of

the covenant of the agreement under the

heading “Contract of Service” or Appendix-

III which reads as follows:-

Appendix III
CONTRACT OF SERVICE
“An agreement made this_____day
of ______one thousand, nine
hundred and_______between
Mr/Mrs/Miss__________hereinafter
called the teacher/employee of
school the party No. 1 of the
one part and the Governing Body
of the school(hereinafter called
the committee) the Party No. 2.,
of the other part. The Committee
 6

hereby agrees to serve as

______in the school on the
following terms and conditions.”
6. Clause-19 of the Agreement relied

by the learned counsel for the petitioner is

only part of this contract of service in

Appendix-III. Thus from a simultaneous

reading of Chapter-VII of the C.B.S.E Bye

laws and its Appendix-III, it becomes clear

that there is no disciplinary control of

C.B.S.E over the teaching and non-teaching

employees of the affiliated schools. Such

agreement in prescribed format in Appendix-

III of C.B.S.E Bye law by way of contract of

service has to be entered between the

concerned teaching/non-teaching employees of

the affiliated school described as Party no.

1, on one part and the governing body

described as committee of the affiliated

school, on the other. Clause-19, of the same

agreement therefore, when it talks referring

the matter to arbitration as per the

stipulation made in the agreement of

service, the same in no way involves much

less cast any obligation on C.B.S.E who have

no administrative/ disciplinary control over

 7

the employees of the affiliated school.

7. The expression Chairman of

society running the school used in Clause-19

of Appendix-III does not refer to the

Chairman of C.B.S.E and in fact it only

refers to the Chairman of the Managing

Committee as would be apparent from Bye law-

25 under Chapter-VII prescribing the

authorities of the affiliated school

including president of the society, Chairman

of the Managing Committee etc. Thus on the

basis of Clause-19, it cannot be even

remotely suggested that in a service

contract between the employee and the

management of the affiliated school, C.B.S.E

has got any role to play, inasmuch as, there

is a complete autonomy given to such

affiliated school either in the matter of

making appointment or removal of such

teaching and non-teaching employees of the

affiliated school. The appointment of

arbitrator, therefore, also can also not be

made by the C.B.S.E and the same has to be

only done by the Chairman of D.A.V Society.

8. The parting submission of Mr.

 8

Mishra that even if the Managing Committee

of the school may not be a „state‟ within

the meaning of Article 12 of the

Constitution but then it is definitely a

„person‟ an expression used in Article-226

of the Constitution of India and, therefore,

whatever was laid down by the Apex Court in

the case of Shri Anadi Mukta Sadguru Shree

Muktajee Vandasjiswami Suvarna Jayanti

Mahotsav Smarak Trust and Ors. Vs. V.R.

Rudani & Ors. reported in 1989 SC 1607 would

squarely apply to a Managing Committee of a

private school and a writ could be issued to

both C.B.S.E. as also to the Managing

Committee of D.A.V., school in the context

of the relief prayed in this writ

application is equally misconceived. This

aspect in fact has been considered by the

Division Bench in the case of Chandra Nath

Thakur, Bihar Sanskrit Shiksha Board & Anr,

Managing Committee of Shri Bhagirath

Madhyamik Sanskrit Vidyalaya & Ors vs The

Bihar Sanskrit Shiksha Board &Ors, The State

of Bihar & ors, Bihar Sanskrit Shiksha Board

& ors reported in 1999(1) PLJR 529, wherein

 9

it was held as follows:-

“13. Coming to the next

question-whether a writ can be
issued against the Managing
Committee, it would be relevant
to notice that neither in the
writ petition nor before the
Board or the Chairman, any
attempt was made by Sri Thakur
to challenge the order of
termination. But as would
appear from the impugned
judgment, while questioning the
validity of the order of the
Chairman, as issue was
certainly raised for
consideration regarding the
validity of such an order on
the ground that the Managing
Committee having been dissolved
by the order of the Chairman,
had no jurisdiction to pass an
order of termination and that
in compliance of the principles
of natural justice, since no
notice and proper opportunity
was ever given to the
petitioner, the order of
termination has to be declared
illegal. Therefore, in these
backgrounds, the learned Judge
after examining different
authoritative pronouncements of
the Apex Court as well as this
 10

Court, rendered the question in

the negative that a teacher of
privately managed school, even
aided financially by the State
Government can not maintain a
writ petition against an order
of termination, passed by the
Managing Committee.
14. Mr. Jha of course
placed reliance on a judgment
of the Apex Court in the case
of Shri Anandi Mukta Sadguru
Shree Muktajee Vandasjiswami
Suvarna Jayanti Mahotsav Smarak
Trust & Ors., A.I.R 1989 SC
1607, as also a recent decision
in the case of
K.Krishnamacharyulu & ors vs.
Sri Venkateswara Hindu college
of Engineering and anr., A.I.R.
1998 SC 295,in support of his
submission that although the
Managing Committee of the
School is purely a private
body, writs under Article 226
can be issued, if there are
infringement of a right of an
employee guaranteed under the
constitution. Since, the
Managing committee was
dissolved by the Chairman, the
order passed by such a
committee was illegal. He
further contended that even if
 11

these aspects are ignored, yet

the order of termination was
bad for want of compliance of
principles of natural justice.
Therefore, the petitioner, in
absence of any alternative
remedy would certainly be
entitled to a relief under
Article 226 of the
Constitution.
15.In my view, the
decisions of the Apex Court as
noticed above, have to be
construed and applied in the
background of the facts and
circumstances of those cases.
Because undisputedly no law has
been laid down so as to
construe that even an order of
termination passed by the
private Managing Committee can
be challenged in a writ
jurisdiction. True it is an
institution which gets aid from
the State or the Board, has the
obligation to provide
facilities and opportunities to
the teaching and non-teaching
employees of such institution
at par to the employees of
similar institutions. Such
employees can not be denied the
same benefits which are
available to others. Therefore
 12

in a case where unequal

treatment is found amongst the
teachers of similar category ,
certainly a remedy under
Article 226 of the Constitution
would be available as was also
held in the case of K.
Krishnamacharyulu & ors. vs.
Sri Venkaterswara Hindu College
of Engineering and anr.(supra).
16.But the facts of the
case in hand being quite
different, the analogy of the
aforementioned cases, in my
view, would not be applicable.
In view of different
authoritative and unbroken
precedents by a longline
decisions of the Apex Court
including the cases of
Executive Committee of Vaish
Degree College, Shamli Vs.
Lakshmi Narain, AIR 1976 SC
888, Dipak Kumar Biswas vs.
Director of Public Instruction
& ors., AIR 1987 SC 1422 and a
decision of the Full Bench of
this Court in the case of Smt.
Manju Devi vs. The District
Superintendent of Education,
Bhagalpur & ors., 1987 PLJR
962, a teacher of a privately
managed school, even though
financially aided by the State
 13

Government or the Board, can

not maintain a writ petition
against an order of termination
from service passed by the
Managing Committee. Therefore,
in my view, this question has
rightly been rendered in the
negative. “
9. As a matter of fact, this Court

again in a judgment dated 06.05.2009 in

C.W.J.C No. 9828 of 2005(Sanjay Sharad vs.

State of Bihar and Ors) had the occasion to

consider a similar question in relation to

termination of service of a private school,

Dayanand School, Mithapur, which in fact is

a Government declared minority school. A

similar argument in fact was repelled by

this Court therein in the following terms-:

“In the light of aforesaid

submissions of the counsel for
the parties the first and
foremost question would be as to
whether this writ application
against an order passed by the
Managing Committee of a private
and minority declared school is
maintainable? Dr. Jha, in order
to satisfy this court on the
preliminary objection with
regard to maintainability of the
writ application would
 14

straightway place his reliance

on a judgment of Apex Court in
the case of Manmohan Singh
Jaitla Vs. Commissioner, Union
Territory of Chandigarh & Ors.
reported in 1984 (Supplementary)
SCC 540. In the opinion of this
Court, the reliance placed on
the said judgment is wholly
misplaced because therein there
was a provision for a tribunal
against the decision of the
Managing Committee and the
decision which was taken by the
Deputy Commissioner and the
Commissioner exercising power
under Section 3 of 1969 Act in
respect of the aided school was
held to be those of the
tribunal. It was in that context
the Apex Court had held the writ
application to be maintainable
as the impugned order was passed
by the tribunal. One would fail
to understand as to how the said
judgment would be of any avail
for the facts of the present
case wherein a unanimous
decision of the Managing
Committee of a minority school
as communicated through its
Secretary is being assailed in a
writ application. It is true
that the Secretary of the
 15

Managing Committee at that point

of time was the District
Education Officer but
nonetheless that decision still
would be one of the Managing
Committee, which by itself is
not an authority much less a
„State‟ within the meaning of
Article 12 of the Constitution
of India. Obviously, the ratio
of Manmohan Singh Jaitla case
(supra) can not be made
applicable to the facts of the
present case.
Dr. Jha next referred to
the judgment of the Apex Court
in the case of O.P. Gupta Vs.
Union of India & Ors. reported
in 1987(4) SCC 328. In the
opinion of this Court, the
reliance placed on the said
judgment seems to be wholly
misplaced, inasmuch as, that was
the case of an Assistant
Engineer in Central Public Works
Department who was placed under
suspension pending departmental
enquiry and was eventually
retired compulsorily. Thus, the
said judgment in the case of
O.P. Gupta (supra) is not an
authority that the decision of
the Managing Committee is
amenable to writ jurisdiction.
 16

Dr. Jha then placed his

reliance on the judgment of Apex
Court in the case of Francis
John Vs. Director of Education &
Ors. reported in 1989
(Supplementary) (2) SCC 598. In
the opinion of this Court, the
ratio laid down by the Apex
Court in the case of Francis
John (supra) will also be of no
assistance to the petitioner,
inasmuch as, what was held
therein was that a writ
application against an order of
a Government Officer acting
under administrative instruction
in terms of Rule 74.2 of the
Grant-in-aid Code was
maintainable. There can be no
difficulty in accepting this
proposition that if the ultimate
decision was taken by the
Government or its officer either
in terms of statute or even
circular, such decision would no
longer remain decision of the
Managing Committee of the
institution and as such, the
writ jurisdiction against an
order of the Government officer
would be maintainable.
Here, there is no such
statute prescribing the District
Education Officer to be the
 17

Secretary of the Managing

Committee rather than District
Education Officer is one of the
members of the Managing
Committee of a minority school
being the Government
representative. Such Managing
Committee in fact is comprising
of different members and in that
view of the matter, merely
because at that point of time
the District Education Officer
was made the Secretary of the
Managing Committee and had
issued the impugned order in
terms of the unanimous decision
of the Managing Committee, will
not make the decision of the
Managing Committee one taken by
a Government Officer. It is this
aspect of the matter which would
make the writ application of the
petitioner absolutely distinct
and different from one which was
decided by the Apex Court in the
case of Francis John (supra).
As a matter of fact, this
aspect of the matter that a writ
application against a decision
of the Managing Committee is not
maintainable stands settled by a
Division Bench Judgment of this
Court in the case of Chandra
Nath Thakur Vs. Bihar The Bihar
 18

Sanskrti Shiksha Board & Ors.

reported in 1999(1) PLJR 529
wherein this Court after
considering the decision of the
Apex Court in the case of Shri
Anadi Mukta Sadguru Shree
Muktajee Vandasjiswami Suvarna
Jayanti Mahotsav Smarak Trust &
Ors. Vs. V.R. Rudani & Ors.
reported in AIR 1989 SC 1607 and
K. Krishnamacharyulu & Ors. Vs.
Sri Venkateswara Hindu College
of Engineering and Anr. reported
in 1998 SC 295 had held the
teacher of privately managing
school even though financially
aided by the State Government or
a Board cannot maintain the writ
application against an order of
termination from service passed
by the Managing Committee. The
Division Bench of this Court for
this purpose had relied on the
judgment of Apex Court in the
case of Executive Committee of
Vaish Degree College, Shamli Vs.
Lakshmi Narain reported in AIR
1976 SC 888 as also in the case
of Dipak Kumar Biswas Vs.
Director of Public Instruction &
Ors. reported in AIR 1987 SC
1422. The aforesaid view of the
Division Bench in the case of
Chandra Nath Thakur (supra) has
 19

been again reiterated by yet

another division bench in the
case of Trigun Chandra Thakur
Vs. State of Bihar and others,
in L.P.A. No. 670 of 1999,
disposed of on 21.1.2008.
The law, therefore,
having been settled by two
Division Bench judgments of this
Court on this score, it must be
held that the writ petition
assailing the impugned order
passed by the Managing Committee
of a minority school is not
maintainable in the writ
jurisdiction of this Court under
Article 226 of the Constitution
of India.”
10. In view of the aforesaid

discussion, this Court would find it

difficult to accept the submission of Mr.

Mishra, on any count especially when at

least two Division Bench judgments of this

Court have held that the judgment of the

Apex Court in the case of Anadi Mukta

(supra) will not be applicable for issuing a

writ to a private Management Committee

pertaining to its decision of termination of

service of an employee of a privately

managed school.
 20

11. That being so, it has to be

necessarily held that this writ application

is not maintainable and is fit to be

dismissed on this ground alone.

12. It is, however, made clear that

nothing said in this order will stand in the

way of the petitioner if he would choose to

move before a competent Civil Court for the

relief sought in this writ application.

13. With the aforementioned

observations and directions, this

application is dismissed.

14. There would be however no order

as to costs.

(Mihir Kumar Jha, J.)

Patna High Court,

Dated 22nd November 2010
Rsh/Ranjan/A.F.R