JUDGMENT S.K. Singh, J.
1. The prayer in this petition is for issuance of a writ tn the nature of quo warranto calling upon the Respondent No. 1 to show the authority by which he is holding office of the Principal of Girls High School and College, Allahabad. A further prayer is that by issuing a writ of mandamus the Respondent No. 1 restrained from acting as Principal of Girls High School and College, Allahabad.
2. After exchange of pleadings, when the matter was taken upon, a preliminary objection was raised on behalf of respondents that this petition is not maintainable on various grounds as will be dealt with later on and therefore, this petition be dismissed without going into the merit of the matter.
3. Sri Ravi Kant, learned Senior Advocate on behalf of the petitioners and Sri A.D. Saunders, learned Advocate who appeared for the respondents, have been heard.
4. Sri A.D. Saunders representing the respondents as stated above, relying upon the decisions namely (1) Manager St. Thomas U.P. Kerala and Anr. v. Commissioner, JT 2002 (1) 439, (2) St. Joseph's Higher Secondary School v. Ravi Shanker Sharma, AIR 1976 Alld. 390, (3) Committee of Management v. Girdhari Singh, JT 2001 (4) 355, (4) Smt. Sudesh Mukul v. The State of U.P., 1997 (1) UPLBEC 18, (5) Kumari Anita Verma v, DAY College, 1992 (1) UPLBEC 30. (6) N. Ahmad v. Manager and Ors., AIR 1999 SC 50, (7) Chander Mohan Khanna v. NCERT, AIR 1992 SC 76. (8) Tekraj Vasan-di alias K.L. Basandi v. The Union of India, AIR 1988 SC 463, (9) Jagram v. Gwalior Town and Country Development Authority, AIR 1987 MP. 11. (11), K.J. Joseph v. K. Sukumaran and Ors., AIR 1987 SC 140, (13) Devi Prasad Shukla v. State of U.P., 1989 AWC 454 (DB). (14) State of U.P. v. Dina Nath Shukla, 1997 (2) UPLBEC (SC) 964, (15) B.V. Siviah and Anr. v. K.Addanki Babu and Ors., JT 1998 (5) SC 96 and (16) Devi Prasad Shukla v. State of U.P., 1989 AWC 454. has raised preliminary objection about maintainability of this petition, on the following grounds;
(i) No writ petition is maintainable against minority Institution.
(ii) The institution is unaided private Institution and is not 'State' within the meaning of Article 12 of the Constitution of India.
(iii) The office held by Respondent No. 1 is not a public office and therefore, no writ of quo warranto lies.
(iv) The writ petition suffers from latches.
5. To meet, the aforesaid preliminary objections about the maintainability of the writ petition against minority institution and institution being unaided private institution is not the 'State' within the meaning of Article 12 of the Constitution of India, on the grounds so stated by learned counsel for the respondents, Sri Ravi Kant learned Senior Advocate who appears for the petitioners has placed reliance on the decisions viz. 2001. UPLBEC Vol. 3 page 2259. 2000 SCC Vol. 2 page 42, 1993 AIR SC Vol. 2 page 2178, 1998 AIR SC Vol. 1 page 295. 1995 UPLBEC Vol. 1 page 265, 1997 SC Vol. 3 page 571, 1992 AWC page 301. To meet the submission that the office held by Respondent No. 1 is not public office, and no writ will lie, reliance has been placed on the decisions reported in 1991 AWC (Suppl.) 259. In respect to the last ground taken to support the plea of non maintainability of the writ petition, i.e., latches, learned counsel takes strength from the decision reported in AIR 1993 (Vol. 2) SC 1873.
6. In view of the aforesaid rival contentions, the Court proposes to deal with the cases as placed from either sides on the points staled above;
A : Maintainability of the writ petition against minority Institution and further the same being unaided private Institution.
7. In the decision as referred by the learned counsel for the respondents reported JT 2002 (1) SC 439 Manager, St. Thomas U.P. Kerala v. Commissioner and Ors., it has been laid down that merely on the ground that the School was set up by individual and not by a minority community, it cannot claim protection of Article 30 of the Constitution, is not correct. It has been held that a single individual with his own means can establish the institution and therefore, denial of status of the minority institution as available under Article 30 of the Constitution is not correct. In other decisions on which reliance has been placed by learned Counsel for the respondents namely AIR 1976 Alld. 390 St. Joseph's Higher Secondary School v. Ravi Shanker Sharma, it has been laid down that the power as given under Intermediate Education Act under Section 16-G (3) (a) by which power of approval has been conferred on the Inspector, who appears to be a blanket power without there being any guideline for exercising that power and therefore, that cannot be approved. Same view was expressed in the decision given by the Apex Court in Committee of Management v. Girdhari Singh, JT 2001 (4) SC 355 in which it has been laid down that the so called regulatory measures conferring power on any specified authority, without indicating any guidelines for exercise of that power, would offend provisions of Article 30 and would not be allowed to be retained as that would amount interference in the administration of minority institu-
tion. In other cases also, the decision to the same effect has been taken.
8. While coming to decision cited by learned counsel for petitioner, so far the decision as reported in 2001 (3) UPLBEC 2259, it has taken the view that writ petition against private recognised educational institution is legally maintainable. The Division Bench of our own Court after referring the decision of the Apex Court had decided the controversy about maintainability of the petition in the following manner.
"The question that arose for consideration before the Supreme Court was whether in absence of a statutory rule issued in that behalf and the institution, at the relevant time, also not in receipt of grant-in-aid, writ petition under Article 226 of the Constitution was not maintainable? The Supreme Court held that in view of the long line of decisions holding that when there is an interest created by the Government in an institution to impart educations which is a fundamental right of the citizen, the teacher, who teach in the institution, perform duties having element of public interest. As a consequence, the element of public interest requires to regulate the conditions of service of those employees at par with Government employees, and, therefore, the State had obligation to provide facilities and opportunities to the people to avail of the right to education."
"The private institutions cater to the needs of the educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the orders issued by the Government. The question is as to which forum one should approach. The High Court has held that the remedy is available under the Industrial Disputes Act. When an element of public interest is created and the institution is catering to that element, the teacher, the arm of the institution is also entitled to avail of the remedy provided under Article 226 of the Constitution of India."
Following the principles laid down by the Supreme Court in the aforesaid decision, we are of the view that the writ petition against Central Board of Secondary Education, Shiksha Kendra, Preet Vihar, New Delhi, maintainable.
9. The test as has been laid down for holding writ petition against private institution to be maintainable proceeds on the basis that when an element of public interest is created and the institution is catering to needs of people, the teacher, the arm of the institution is also entitled to avail of the remedy under Article 226 of the Constitution of India. The same view has been taken by the Apex Court in the decision given in Chandigarh Administration and Ors. v. Rajni Vali (Mrs) and Ors. reported in 2000 SCC 42. Reference in this respect can also be made to the most celebrated judgment given by the Apex Court in case of Unnikrishnan J.P. v. State of Andhra Pradesh, reported in AIR 1993 SC 2178. It appears to be useful to quote few paragraphs at this stage;
Para 152 (b) :--Imparting of education is the most important function of the State. This duty may be discharged by the State directly or through the instrumentality of the private educational institutions. But when the State permits a private body or an individual to perform the said function, it is its duty to ensure that no one gets an admission or an advantage on account of his economic power to the detriment of a more meritorious candidate.
Para 152 (d) :--If for any reason, it is held that a citizen or a person has a right to establish an educational institution, the said right does not carry with it the right to recognition or the right to affiliation, as the case may be. It has been repeatedly held by this Court even a minority educational institution has no fundamental right to recognition or affiliation. If so, no such right can be envisaged in the case of majority community or in the case of an individual or persons. Once this is so, it is open to the State or the University according recognition or affiliation to impose such interest of fairness, merit, maintenance of standards of education and so on. In short, it is open to the Government or the University to make it a condition of recognition/affiliation that the admission of students, in whichever category it may be, shall be on the basis of merit and merit alone. The institutions obtaining recognition/affiliation will be bound by such condition and any departure therefrom renders the recognition/affiliation liable to be withdrawn.
Para 152 (e) :--Even if the Government or the University does not expressly impose such a condition, such condition is implicit by virtue of the fact that in such a situation, the activity of the private educational institution is liable to be termed as 'State action.' The fact that these institutions perform an important public function coupled with the fact that their activity is closely inter-twined with Governmental activity, characterises their action as 'State action.' At the minimum, the requirement would be to act fairly in the matter of admission of students and probably in the matter of recruitment and treatment of its employees as well. These Institutions are further bound not to charge any fee or amount over and above what is charged in similar Governmental Institutions. If they need finances, they must find them through charitable organisations. They cannot also say that they will first collect capitation fees and with that money, they will establish an institution. At the worst, only the bare running charges can be charged from the students. The capital cost cannot be charged from them. The other decisions as has been referred by learned counsel for the petitioners in support of the submission that the writ petition against the respondents is legally maintainable also support the petitioners' case.
10. In view of the aforesaid, it cannot be said that the institution in respect to which the present petition has been filed, do not cater the need of the public and the element of public interest is not created and thus, it cannot be said that the writ petition under Article 226 of the Constitution of India is not maintainable. Thus, preliminary objection in this respect is hereby rejected.
B. Not a public office and therefore, no writ of quo warranto is maintainable.
11. Learned counsel for the respondents refers to the decision reported in 1989 AWC 454, Devi Prasad Shukla (supra) which states that for issuance of a writ of quo warranto, there are three preconditions;
(i) The office is created by statute or any provision.
(ii) The duties of the office must be of public nature.
(iii) The office must be permanent in the sense of not being terminable at pleasure.
Other decision referred is AIR 1987 MP 11, Jagram v. Gwalior Town. This decision also lays down that writ of quo warranto is not maintainable unless respondent is holding public office. The other decision as referred by learned counsel are also to the same effect.
To meet the aforesaid objections, learned counsel for the petitioner referred the decision reported in 1991 AWC (Suppl.) 259. It has been held in the decision referred by learned counsel for the petitioner is that a person illegally occupying a public office cannot be permitted to hold the office. In view of the aforesaid, the question which is to be considered is that whether on the facts of the present case, respondent No. 1 can be held to be holding public office. In this connection, pleadings as has been set forth in the petition and the reply in the counter affidavit, may be useful to be referred.
Para 4. (Writ Petition) :--"That bye law 5 is indeed, significant. According to it, qualification/eligibility for appointment of teachers should be the same as those prescribed by the State Department of Education. It is being reproduced herein below :--
5(a) The teaching staff must be properly qualified and trained. The council has laid down the minimum qualification for the teaching staff (see chapter II).
If however, the State Department of Education has prescribed other minimum qualifications, the Council will take them into consideration in deciding the affiliation of the Schools.
(b) The conditions of service, salaries, allowances and other benefits of the staff must be comparable to that prescribed by the State Department of Education."
Para 5 (Counter affidavit) :--"That the contents of para 5 of the writ petition are incorrect and are denied. Clause 5 (b) is not applicable to the institution. In any case, Clause 5 (b) indicates that the condition of service, facility should be comparable to that prescribed by the Department of Education. In the instant institution salaries and other benefits are over and above than prescribed by the State Department of Education. In any case, this is not the issue in instant writ petition."
12. It appears that the respondents have not clearly denied that the office held by respondent No. 1 refers to applicability of some term and condition as prescribed by Department of Education. In view of the aforesaid, it appears that on the facts of the present case, the writ petition for the relief so claimed is maintainable and therefore, the objection in this respect is also rejected.
C. Writ petition not to be entertained on the ground of latches.
13. Learned counsel for the respondents referred to a decision reported in JT 1998 (5) SC 96 B.V. Siviah and Anr. v. K. Addanki Babu and Ors.. If appears that the case referred by learned counsel for the respondents is in respect to matter of promotion and the promotion having taken place about 5 years ago, the claim was held to be not acceptable on account of latches. The decision in this respect as has been referred by learned counsel for the petitioner as given by the Apex Court in the case of Dr. Kashi Nath G. Jalmi v. The Speaker, AIR 1993 SC 1873, appears to be near on the point. In this Case, it was held that if the respondent is holding office in an unauthorised manner and there is dis-qua-lillcation, its continuance, has been challenged in the petition then on the ground of latches, writ petition is not to be dismissed. The relevant paragraphs of the decision of the Apex Court is being quoted.
Para 33 :--"In our opinion the exercise of discretion by the Court even where the application is delayed is to be governed by the objective of promoting public interest and good administration; and on that basis ft cannot be said that the discretion would not be exercised in favour of interference where it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality"
Para 34 :--We may also advert to an related aspect. Learned counsel for the respondents were unable to dispute that any other member of the public, to whom the oblique motives and conduct alleged against the appellants in the present case could not be attributed could file such a writ petition even now for the same relief, since the alleged usurpation of the office is continuing, and this disability on the ground of oblique motives and conduct would not attach to him. This being so, the relief claimed by the appellants in their writ petitions filed in the High Court being in the nature of a class action, without seeking any relief personal to them, should not have been dismissed merely on the ground of latches."
14. Here in the present case, in the event it is found that Respondent No. 1 is not qualified or on the basis of various kind of allegations as contained in paras 3 to 9, 13, 16, 18 and 19 of the writ petition, it is held that Respondent No. 1 is not entitled to continue then it will be termed as continuing wrong. Therefore, matter needs examination on merits.
15. In view of the aforesaid, the preliminary objection for dismissal of writ petition on the ground of latches also deserves rejection.
16. There appears to be serious allegations in the writ petition in respect to continuance of respondent No. 1 in the office. Charges in the event of being found to be correct is bound to have serious effect on the educational atmosphere of the concerned college, which has the concern of every body. As by this judgment only preliminary objection has been dealt with, and merits in the writ petition has not been examined in any manner, either way, it appears to be a fit case where writ petition is to be heard and decided on merits.
17. In view of the aforesaid analysis, after repelling the preliminary objection raised on behalf of the respondent, it is held that the writ petition is to be heard and decided on merits.
18. This, writ petition will now be listed before appropriate Bench for admission/ disposal on merits on 17th July, 2002.