[U.P. Intermediate Education Act, 1921] Allahabad HC Upholds Maintainability Of Service Writ Against Termination Order By Unaided Institution

Recently, the Allahabad High Court upheld the maintainability of the writ petition under Article 226 of the Constitution of India against termination order passed by an unaided institution which is recognized under Section 7-A of the U.P. Intermediate Education Act, 1921.

Distinguishing the judgment of Supreme Court in St. Mary's Education Society and another vs. Rajendra Prasad Bhargava and others, the bench comprising of Chief Justice Arun Bhansali and Justice Jaspreet Singh held that since appeal was provided to District Inspector Of Schools against termination order of the petitioner, and actions for non-compliance of the order of DIOS were also provided under Section 16D of the U.P. Intermediate Education Act, 1921, the petitioner could file a writ petition under Article 226 of the Constitution of India. It was held that the termination had an element of “public law” involved to make it amenable to writ jurisdiction.

Factual Background

Petitioner/Respondent no. 4, employee of C/M Pratibha Inter College, Barabanki filed a writ petition challenging his termination. Appellant institution raised a preliminary objection regarding maintainability of the writ petition on grounds that it is an unaided recognized college. It was argued that the services of the petitioner are not governed by any statute and the dispute is private in nature. It was argued that unaided institution is not 'State' under Article 12 of the Constitution of India.

The Single Judge, in writ jurisdiction, held that since the institution was recognized under Section 7-A of the U.P. Intermediate Education Act, 1921 and Regulations of 2000 were followed for appointment of teachers, it is 'State' under Article 12 of the Constitution of India. The decision of Supreme Court in St. Mary's Education Society and another vs. Rajendra Prasad Bhargava and others was distinguished on grounds that in the case before the Apex Court it was an unaided private college whereas appellant before the High Court was an unaided recognized college.

Challenging the order of the Single Judge, counsel for appellant-institution argued that Supreme Court had categorically held that mere affiliation with CBSE did not make institutions 'State' under Article 12 of the Constitution of India. It was further argued that the regulations of 2000 only provided qualification, procedure for selection, disciplinary proceedings, termination of services and resignation/abolition of post. It was argued that there is not interference by the State Government in the said procedure.

Per contra, respondent argued that by virtue of Article 21-A of the Constitution of India, the unaided recognized institution was performing essential public functions. Reliance was placed on Roychan Abraham vs. State of U.P., where a Full bench of the Allahabad High Court held that private institutions imparting education to children above 6years of age are performing essential public functions and are therefore amenable to writ jurisdiction.

High Court Verdict

The Court held that in St. Mary's Education Society and another vs. Rajendra Prasad Bhargava and others the Supreme Court had observed that society involved therein “was affiliated to the Central Board of Secondary Education ('CBSE') and was governed by Rules and Bye-laws and had its own Bye-laws pertaining to the service conditions for the employees of the school, service rules for teaching and non- teaching staff and was not receiving any aid or had any control of the Government or any instrumentality of the Government.”

The Apex Court had held that the since the bye laws had no force in law, there was no breach of law that could be claimed to invoke the writ jurisdiction, only contractual dispute could be raised at best.

The Court distinguished the aforesaid case with Marwari Balika Vidyalaya vs. Asha Srivastava and others on grounds that in the latter permission of the State Government was required for imposing major penalty whereas in the former no such permission was required. In Marwari Balika Vidyalaya, it had been held that merely discharge of public functions by an institution will not make its employees entitled to writ jurisdiction regarding service disputes. It is only when their services are governed by statutes having force of law, can they approach the High Courts under Article 226 of the Constitution of India.

“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,” held the Apex Court.

The bench headed by Chief Justice Bhansali observed that the appellant institution is a recognized institution under the U.P. Intermediate Education Act, 1921. It was observed that Section 7-AA of the Act which provides for employment of teachers does not differentiate between aided and unaided institutions. However, it specifically provides that part-time teachers cannot be appointed in institutions unless conditions for the same are specified by the State Government.

Upon perusal of the Regulations of 2000, the Court observed that a part-time teacher aggrieved by a decision of the Management can appeal before District Inspector of Schools within two months of the decision of the Management and Management shall be bound by the decision of the DIOS. Accordingly, the Court held that in such terminations by the Management of recognized institutions under the Act, the State Government's interference is present through the DIOS.

“The non compliance, if any, of the order of DIOS, results in action under Section 16-D (3) (i) and (4) of the Act of 1921 and, therefore also, it cannot be said that the action of termination is not governed by the statutory provisions and the same does not have any public law element.”

Holding that the contract between the parties was not a private contract, the appeal filed by the institution was dismissed and the order of Single Judge was upheld.

Case Title: C/M Pratibha Inter College , Barabanki Thru. Manager Sri Indra Kumar and another v. State of U.P. Thru. Prin. Secy. Deptt. of Secondary Education U.P. Govt. Lko. and others [SPECIAL APPEAL No. - 115 of 2024]

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