Heard Mr. Ritvik Upadhyaya, learned counsel for the petitioner and Mr. J.K. Sinha, learned counsel for the opposite party No. 4 as well as learned Standing counsel.
Mr. J.K.Sinha, learned counsel for the opposite party no.4 raised objection against the maintainability of the writ petition on the ground that the petitioner had already filed a Civil Misc. Writ Petition bearing 21845 of 2008 before this Court at Allahabad with the following reliefs:-
He further submits that this court disposed of the aforesaid Civil Misc Writ Petition finally on 30.4.2008 with the direction to the Secretary, Department of Education, U.P. Lucknow to decide the petitioner's representations dated 20.11.2006 and 11.03.2008. However, before waiting the decision on the representations, the petitioner preferred present successive writ petition on 25th May,2009 -2- with the same relief. Thus he submitted that being successive writ petition the petitioner's writ petition is not maintainable and deserves to be dismissed with heavy cost. He further informed that pursuant to the order passed by this Court in the earlier writ petition the State Government passed the order on 6.8.2009, which could have been challenged before this Court sitting at Allahabad itself where record of earlier writ petition is available instead of challenging the same by amending the present writ petition. Further he pleaded that opposite party no.4 has been impleaded in the representative capacity of the employees of the institution; whereas; all the employees of the institution are necessary and affected parties. It is further stated that the opposite party no.4 has been impleaded in the representative capacity without consent of other employees.
In reply, Mr. Upadhyaya, learned counsel for the petitioner invited the attention of this Court towards the provisions of Chapter XXII Rule 7 of the Rules of the Court, which is extracted below:-
"7. No second application on same facts.- Where an application has been rejected, it shall not be competent for the applicant to make a second application on the same facts."
He also cited a decision of the Division Bench of this Court rendered in the case of Purshottam Das Tandon Vs. Military Estate Officer, AIR 2000 Allahabad 127, in which it has been held that if a writ petition has been rejected only factually, and not fictionally as contemplated in the Explanation V attached with Section 11 of the Code of Civil Procedure, then the second writ petition on the same cause of action, which means bundle of facts, would be barred under Rule 7. Keeping in view the facts in the five judges Bench decision of Hon'be Supreme Court rendered in the case of Gulabchand Chhotalal Parikh V. State of Gujrat, AIR 1965 SC 1153 it has been held that the bar of Order II, Rule 2 may not apply to writ proceedings, but it shall apply only to suits.
He further submits that in the present case without adjudicating -3- upon the relief sought in the present writ petition this Court disposed of the writ petition with the direction to the State Government to dispose of the representations which does not amount rejection of the petitioner's relief. Therefore, the present writ petition is not barred by Chapter XXII Rule 7 and is well maintainable.
In support of his contentions he cited the decisions of this Court as well as Hon'ble Supreme Court which are referred hereinunder:-
Committee of Management Rohan Singh shiksha Sansthan Junior High School, Maitha, Distt. Kanopur Dehat Vs. State of U.P. and others , 2004 (1) AWC 248. In this matter there was a prayer for issuing a writ of mandamus commanding the opposite parties to sanction grant-in-aid. In this case this Court held that the petitioner has no right, much-less statutory right for which a mandamus has been sought for, there is nor any corresponding statutory duty cast upon the State Government that it must provide grants-in-aid to the institution. In the aforesaid case the prayer was otherwise, therefore, it is not applicable in the present case.
The State of Assam and another Vs. Ajit Kumar Sara and others, AIR 1965 Supreme Court 1196. In this case respondent was granted leave to contest the election of parliament by the Governing Body. The departmental authority issued letter to the effect that the educational department would not provide funds for salaries and allowances for any employee who had gone on leave in connection with elections in contraventions of rule 7 of the Rules. After election was over, he was permitted to rejoin his duties. Rule 7 provides that an employee desiring to seek election to the Legislative body or to hold office with any political organisation or local bodies shall be on compulsory leave without pay from the date of the filing of his nomination till the end of the next academic session or till the termination of the term of office to which he may be elected as the case may be. Such employee however, shall not be allowed to retain lien on his post for a period exceeding five years.
The main question for consideration before the Hon'ble Supreme Court was that the High Court was right in issuing a writ of mandamus to the State through the Director directing, it not to give effect to the letter of March, 20, 1962. The Hon'ble Supreme Court has held that the High Court was in error in granting a writ of mandamus against the State through the Director once it found that the Rules had no statutory force and were mere administrative instructions for the purpose of giving grant-in-aid to private colleges. What grants the State should make to private educational institutions and upon what terms are matters for the State to decide. Conditions of these grants may be prescribed by statutory rules; there is however no law to prevent the State from prescribing the conditions of such grants by mere executive instructions which have not the force of statutory rules.
In the light of the aforesaid observations of the Hon'ble Supreme Court, the learned counsel for the petitioner submitted that grant to the institution in question has been extended in the matter under the strength of the order of the State Government, which has no statutory force, therefore, it can not compel to continue with the same by the State Government. It is the matter between the Government and the private college concerned. Such conditions and instructions as to grant in aid confer no right on the teachers of the private colleges and they cannot ask that either a particular instruction or condition should be enforced or should not be enforced. It is only for the Governing Body of the College to decide whether to carry out any direction contained in mere administrative instructions laying down conditions for grant-in-aid. It has further been held that the rules for the purpose of grant-in-aid being -as in this case- merely executive instructions confer no right of any kind on teachers and they cannot apply to the High Court for a mandamus asking for the enforcement or non enforcement of the rules, even if indirectly there may be some effect on them because of the grant-in-aid being withheld in whole or in part.
Keeping in view the aforesaid facts as well as law down by this court as well as Hon'ble Supreme Court, I am of the view that the writ petition is well maintainable for the relief sought in the present writ petition particularly against the order passed by the State Government rejecting the petitioner's representation as it is absolutely a new fact which has been brought to the notice of this court.
Aditya Birla is an educational institution. It is established at Renukoot,District Sonebhadra by Hindalco Industries Ltd. It is a recognised institution by the Board of High School and Intermediate Examination and is governed under the provisions of U.P. intermediate Education Act,1921. It has also received grant in aid by the State Government.
Feeling some inconvenience with grant-in-aid extended by the State Government to the institution in question the committee of management of the institution in its meeting dated 6.11.2006 passed a resolution for de-listing the institution from the grant-in-aid list. In furtherance of the resolution, the petitioner applied to the State Government for withdrawal of grant-in-aid on 20th November, 2006 through the District Inspector of Schools concerned. The District Inspector of Schools submitted a report to the Director of Education (Secondary). After awaiting the decision for long time the petitioner submitted a representation to the State Government on 19.3.2008. The State Government by means of order dated 6th August, 2009 has turned down the petitioner's request, which is impugned in the present writ petition.
It is stated by the petitioner that there are 64 sections in the institution to High School level, out of which only 24 sections are on the State grant-in-aid list. The institution has been upgraded to the level of intermediate from the academic session 1997-98, but it has not received any grant-in-aid for the intermediate level. The intermediate level has 8 sections. Accordingly, the total approved sections in the institution are 72 , out of which 48 sections are without the support -6- of the State grant-in-aid. The total teaching staff in the institution is 101, out of which 34 teachers are on grant in aid list. The strength of non teaching staff is 27, out of which only 8 are on grant-in-aid list. Thus, the total number of approved staff on the State grant-in-aid list is 42 and rest 86 are without support of State grant-in-aid list.
It is also stated that against the total expenditure the institution has received meagre amount of grant by the State Government in different financial years. In the institution the students including boys and girls belong to different sects viz SC/ST/OBC and minorities. The majority of the students belongs to weaker section. The total number of students enrolled in the institution are 4693, out of which 2317 are boys and 2376 are girls. Being tribal area about 2810 students belong to SC/ST//BC/OBC/ and minorities community. It is further stated that performance of institution has been shown excellent. By giving five years comparative chart of results of High School Examination, the petitioner has tried to establish that it has achieved more than 96% result of intermediate examination in last five years and more than 95% result of High School Examination in last five years .
In order to achieve the comparative results against other different schools which run by the private sectors, according to the petitioner, now it has become necessary for the petitioner to keep complete control and regulation in its hand for betterment of education level as well as other relative activities so that the students may get ample opportunity for development of their career and personality, in which co-operation of the teaching and non teaching staff is utmost necessary. The petitioner submits that Aditya Birla group, which runs the institution is financially too sound to provide all the financial assistance to its teaching and non-teaching staff including salary and other facilities viz medical, sport, insurance.
When the question arose about insecurity of approved teaching and non teaching staff of the institution after being delisted from grant -7- in aid list, the authority submitted an affidavit that it has no intention to close down and it shall not close down the institution rather it shall continue to take care of and cater to the needs of the down trodden and weaker section of the people and tribal.
The Senior Vice President, Hindalco Industries Ltd. being Manager of the committee of management of the institution through affidavit dated 6th March, 2010 has undertaken that upon withdrawal of the grant the service conditions including retiral benefits as well as total emoluments and facilities of the approved teachers and staff of the institution shall not be lower or less beneficial than that laid down from time to time by the State Government under the relevant Act and Orders. They shall continue their services till their superannuation and their services shall not be dispensed with except in accordance with the law. The willing teaching and non teaching staff shall be issued no objection for their transfer to another recognised and aided institution. The institution shall continue to accord all facilities and benefits in the matter of admission and fees to wards of the people of weaker section of the society including tribal. The entire infrastructure of the institution including land, building, furniture, laboratories with all apparatus, computers etc, shall continue to be utilized.
Thus in continuation of aforesaid facilities the petitioner requested to delist the institution from the grant-in-aid list. The State Government considered the matter by means of order dated 6th August, 2009 and rejected the petitioner's representation on the ground that since the petitioner-institution is regulated under the rules and regulations of the State Government, the difficulty would arise in governing service conditions of the approved teaching and non teaching staff after delisting the institution from the grant-in-aid list.
In the representative capacity of teacher of the institution Mr. Vikram Prasad Gond, Assistant Teacher has been impleaded as opposite party no.4 in the memo of writ petition. who has also filed -8- counter affidavit raising the question of maintainability of writ petition that all the employees of the institution in favour of whom grant in aid has been extended are necessary parties as they would be affected with the order, if any, passed by this Court against them. The apprehension has also been shown by them for the insecurity of approved teachers on being de-listed the petitioner-institution from the grant-in-aid list, accordingly they expressed their willingness to remain continue with grant in aid list.
The State has also filed counter affidavit to justify its decision. It is stated that in case the petitioner-institution's name is de-listed from the grant in aid list, it would create chaos and legal consequences adversely affecting the service conditions of the employees and in that event it would go beyond the control of the State Government.
The educational institutions whether they receive the grant-in- aid list from the State Government or not are governed under the provisions of U.P. Intermediate Education Act 1921, accordingly the service conditions of the approved teaching and non teaching staff are also governed thereunder. After receiving the grant-in-aid from the State Government it becomes the duty of the District Inspector of Schools as well as Director of Education (Secondary) to ensure the payment of salary of approved teaching and non teaching staff under the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees), Act 197, which also provides that on the event of failure of committee of management in discharging the duties for payment of salary, the State authorities are empowered to take necessary action against the institution.
Thus the payment of salary of teaching and non teaching staff in favour of whom the same is extended or regulated under the statutory provision and on the event of its violation, the proper recourse is open for taking action against the institution, whereas after de-listing the institution from the grant-in-aid list their services are governed under the terms of contract entered into between the parties -9- and on the event of violation of terms of contract, the same can not be ensured to be followed, through the State instrumentality being contractual in nature. Accordingly even after taking notice of undertaking given by the institution on that event of breach of undertaking shall have no better recourse of remedy except to get it enforced through Labour Court, therefore, after de-listing the institution from the grant-in-aid list, the teaching and non teaching staff of the institution shall be put under in secured lives and definitely the same shall be detrimental to their interest.
Moreso, once the State Government has extended the grant-in-aid in favour of the teachers and other employees of the institution and has ensured the payment of salary to them from the State Exchequer and still is willing to pay from its pocket, it would be absolutely inappropriate to put the teachers and other employees under the hands of management of the institution particularly in the matter of the payment of salary. So far as other service conditions is concerned, the committee of management is always empowered to take action against the teachers and other employees as and when the occasion arises, but due to extension of grant-in-aid from the State Government that is always subject to approval of the State authorities which also secures their service conditions in better way.
So far as the judgment of the Hon'ble Supreme Court rendered in the case of State of Assam (Supra) is concerned, indisputedly the petitioner receives grant under the executive order issued by the State Government, but once it is issued and the institution is taken under the grant-in-aid list, the payment of salary to the employees of the institution in question is ensured under the U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, accordingly their right of getting salary receive statutory strength under the aforesaid Act and if the grant is withdrawn, they shall have no right to enforce it under the said Act. Therefore, I am of the view that once the payment of salary is ensured under the statute, that -10- cannot taken away only on the basis of resolution of the Governing Body of the institution.
Under the circumstances, in any way, it would not be proper to put them under the private hands to control and govern their service conditions in unfettered manner. In light of the fact that some of the teachers who are receiving grant in aid have expressed their willingness for de-listing the institution from the grant-in-aid list, I am of the view that it does not strengthen the petitioner's case as it is their own decision. If they do not want to remain continue with the grant-in-aid list, they are always at liberty to choose so, but cannot compel to others for the same very decision.
For the reasons stated above, the writ petition is dismissed.
GSY Dt. 19.01.2011