SHREYASKAR TRIPATHI SON OF DR. KAMLA SHANKER TRIPATHI Vs. STATE OF U.P. THROUGH ITS SECRETARY (SECONDARY EDUCATION) AND ORS.

JUDGEMENT

(1.) THE present writ petition has been filed for quashing the order impugned dated 13.7.2007 passed by the respondent No. 5 together with impugned order dated 18.8.2007 passed by the respondent No. 2. Further prayer is for issuing a writ in the nature of mandamus commanding the respondents not to interfere in the peaceful function of the petitioner as a Principal of Saraswati Vidya Mandir Inter College, Kakari Pariyojana, Sonbhadra and may be directed to make the payment of salary to the petitioner in accordance with law.

(2.) THERE is a Saraswati Vidya Mandir Inter College, Kakari Pariyojana, Sonbhadra recognised and unaided institution and is governed by the Provisions of U.P. Intermediate Education Act, 1921. The institution was accorded recognition as a Higher Secondary School vide its order dated 29.3.2001, a copy of the same has been annexed as Annexure -1 to the writ petition. It was also accorded recognition as Intermediate College vide its order dated 25.9.2004. The Provisions of U.P. Intermediate Education Act, 1921 and regulation framed thereunder are also applicable to the said institution in question and is also governed by the U.P. Act No. 5 of 1982. The aforesaid institution is also governed by a Committee of Management duly recognised by Mandaliya Samiti headed by Joint Director of Education, Vindhyachal Mandal, Mirzapur vide order dated 2.1.2007. The District Inspector of Schools has attested the signature of Sri Uma Shanker Singh as a manager of the institution, whereas Sri Shyam Sunder Singh has been recognized as a president of the Committee of Management. The institution has got its By -laws and scheme of administration. The Bhartiya Shiksha Samiti Uttar Pradesh Purva, Allahabad is a non registered society having no concern with the institution in question. The respondent No. 5 vide the impugned order dated 13.7.2007 transferred the petitioner from Saraswati Vidya Mandir Inter College, Kakari Pariyojana, Sonbhadra to Barati Lal Ganga Ram Saraswati Vidya Mandir Inter College Lalganj, Rai Bareilly. After the order dated 13.7.2007, the District Inspector of Schools has passed an order dated 16.7.2007, directing the manager of the institution, clarifying therein that the order of impugned transfer is impermissible and is also illegal. Then the Committee of Management wrote a letter on 14.7.2007 stating therein that Saraswati Vidya Mandir Inter College, Kakari Pariyojana, Sonbhadra is an unaided institution, which has got its own scheme of administration. It has also been clarified by the Committee of Management of the institution in question that Mantri of Bhartiya Shiksha Samiti Uttar Pradesh Purva, Allahabad is having no jurisdiction to transfer any employee of the college concerned to some other institution. It has also been stated that since the provisions of U.P. Intermediate Education Act, 1921 and the Regulations framed therein have full application in the institution in question, the petitioner can only be transferred after following the procedure prescribed under the Regulations 55 to 61 of Chapter -III of U.P. Intermediate Education Act. The petitioner has never made any application to any authority for being transferred from the present institution, where he is working. No procedure as provided under any Regulations 55 to 61 framed therein have been followed as such the impugned order is bad in law. Sri Anil Bhushan, who appears for the respondents has raised a preliminary objection regarding maintainability of the writ petition. It has been submitted that it is an unaided private institution, therefore, the provision of U.P. Intermediate Education Act will not be applicable and the respondents are not a statutory body, it is only a society, who has passed the order, therefore, the writ petition itself is not maintainable. As the respondents do not come under the definition of Article 12 of the Constitution of India, as such the writ petition is liable to be dismissed. Sri Anil Bhushan, learned Counsel for the respondent has also brought to the notice of the Court that one Basudeo Prajapati has also filed a Writ Petition No. 74104 of 2005 against the same Committee of Management and this Court has also dismissed the writ petition on 6.12.2005 only on the ground that the Rules are not statutory, therefore, in absence of any violation of statutory Rules, the writ petition is not maintainable. Sri Anil Bhushan has also relied upon a Division Bench judgment of this Court reported in Army School Gorakhpur v. Smt. Shilpi Paul and has placed reliance upon paragraphs 16, 20, 24 and 29 of the said judgment, the same are being reproduced below:

(3.) FURTHER reliance has been placed by the learned Counsel for the respondents a Full Bench judgment of Madras High Court reported in 2005 (4) ESC (Madras) 2669 A. Joseph Louis v. District Welfare Fund Committee, Trichy -1 and Ors.. In support of the aforesaid contention, learned Counsel for the respondents submits that National Council of Educational Research and Training in short (NCERT), which was a registered society under the Societies Registration Act, the Court after verifying its object, programmes, activities, funding and considering the fact, that the Government has got limited control only to proper utilization of the grant, the Court ultimately has come to the conclusion that it is a autonomous body and does not fall within the definition of 'State' under Article 12 of the Constitution of India. Further reliance has been placed upon a Full Bench decision of this reported in, 2005 (3) UPLBEC 2187 M.K. Gandhi and Ors. Director of Education (Secondary), U.P., Lucknow and Ors. The Full Bench of this Court has considered whether the Public School, Ghaziabad, which has been recognised by the Central Board of Secondary Education comes under the ambit of Article 12 of the Constitution of India or not. It has been held by the Full Bench that though the Delhi Public School recognised by the Central Board Secondary Education, certain by -laws have been framed by the Board and there was a requirement that the Delhi Public School should frame the Service Rules for employees but no service rule have been framed and by -laws has been adopted and Confirmed by the Board, inspite of the aforesaid fact, Full Bench has held that the termination of service of a teacher working in Delhi Public School writ challenging the order of termination is not maintainable.