IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No. : 15529 of 2008 Reserved on : 16.05.2025 Decided on : 28.05.2025 Rajinder Sharma .…Petitioner. Versus State of H.P. and Ors. …Respondents. Coram The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 No For the petitioner : Ms. Sangeeta Vasudeva, Advocate. For the respondent : Mr. Baldev Singh Negi, Mr. Pratush Sharma, Mr. Amandeep Sharma, Additional Advocate Generals with Mr. Hemant K. Vema, Deputy Advocate General, for respondents No. 1 and 6. : Mr. Loveneesh Kanwar, Senior Advocate, with Mr. Tarun Carla, Advocate, for respondent No.2. : Mr. Bhim Raj Sharma, Advocate, for respondent No. 7. 1 Whether reporters of the local papers may be allowed to see the judgment? 2 ( 2013:HHC:5213 ) Satyen Vaidya, Judge By way of instant petition, petitioner has prayed for following substantive reliefs:- i. That the oral termination of the applicant may kindly be declared null and void and the respondents may kindly be directed to take back the services of the applicant forthwith with all consequential benefits of seniority etc. ii. That the respondents may kindly be directed to pay all the arrears due and payable towards the applicant from the date of oral termination till the time the services of the applicant are taken back into service. iii. That the appointment of respondent No. 6 may please be quashed. 2. The case as set-up by the petitioner is that he was orally appointed as Lecturer (Hindi and Sanskrit) on 23.01.1998 in D.A.V. P.G. College Daulatpur Chowk, Tehsil Amb, District Una, H.P. (for short the ‘College’). No appointment letter was issued in his favour. Initially, he was paid fixed monthly emolument of Rs. 1500/-, which subsequently came to be increased to Rs. 3500/- per month. As per 3 ( 2013:HHC:5213 ) petitioner, the College gave artificial breaks for 2-3 months every year in the case of petitioner. Petitioner worked till July 2004 where after his services were terminated orally. 3. Petitioner has placed reliance on experience certificates issued by the Principal of the College for the periods 23.01.1998 to March 1998, July 1998 to March 1999, July 1999 to March 2000, July 2000 to March 2001, July 2001 to March 2002, July 2002 to March 2003 and July 2003 to March 2004. It has further been submitted by petitioner that his name found mention in the list of the staff prepared by the College for the year 2004-2005, for the purposes of affiliation from the Himachal Board of School Education. 4. Petitioner filed Original Application No. 299 of 2004, before erstwhile H.P. Administrative Tribunal, but the same was dismissed as withdrawn on 24.08.2006. Thereafter, petitioner preferred Civil Writ Petition No. 351 of 2004, before this Court, again the same was withdrawn on 09.11.2006. 4 ( 2013:HHC:5213 ) 5. In the above backdrop, petitioner has challenged his termination and has also prayed for other consequential reliefs, as noticed above. 6. Another contention of the petitioner is that respondent No. 7 was wrongly appointed by the College. Petitioner could not have been replaced by a temporary employee. The alleged action of the College has been termed to be in violation of the principles of natural justice. 7. Only private respondent No. 7 has filed the reply. It is contended that the appointment of private respondent was made on 24.06.2004, whereas the services of petitioner were terminated on 07.07.2004 and for such reason there was no inter se dispute between private respondent No. 7 and petitioner. It has also been alleged that the petitioner did not possess the requisite qualification. 8. I have heard learned counsel for the parties and have also gone through the record of the case carefully. 5 ( 2013:HHC:5213 ) 9. Though, the petitioner has made an averment that the College was aided by the State Government, but nothing has been placed on record to substantiate such averment. What has been shown is that the College had affiliation from State Board of School Education which is not sufficient bring in the element of public law. In absence of any tangible material to establish that the College was receiving grant-in-aid from the State Government, such a fact cannot be presumed. It being so, the question arises whether the petitioner is entitled to maintain this petition for enforcement of rights, if any, arising out of service contract with a private unaided educational institution. 10. The answer has to be in negative. In light of the law laid down by Honorable Supreme Court in St. Mary’s Education Society and Another Vs. Rajendra Prasad Bhargava and Others, (2023) 4 SCC 498. The following extract from the aforesaid judgement is relevant. 6 ( 2013:HHC:5213 ) “75.1 An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public. 75.2 Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory provisions or the employer had the status of “State” within the expansive definition under Article 12 or it was found that 7 ( 2013:HHC:5213 ) the action complained of has public law element. 75.3 It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a Constitutional Court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. 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. 75.4 Even if it be perceived that imparting education by private unaided the school is a public duty within the expanded expression of the term, an employee of a nonteaching staff 8 ( 2013:HHC:5213 ) engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether “A” or “B” is employed by school to discharge that duty. In any case, the terms of employment of contract between a school and nonteaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education. This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of nonteaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered by the court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty. 75.5 From the pleadings in the original writ petition, it is apparent that no element of any public law is agitated or otherwise made out. In other words, the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character.” 11. A Division Bench of this Court, in which, I was one of the Member while deciding LPA No. 66 of 2017, titled as Regional Director, DAV School, 9 ( 2013:HHC:5213 ) Shimla and Ors. Vs. Shri Dharmender Kumar and Ors. has held as under:- “11. On the proposition of law, we have found that this Court is not empowered to exercise jurisdiction under Article 226 of the Constitution to enforce the service contracts between employees and managements of private unaided educational institutions for want of involvement of public law element. There is no gainsaying that the involvement of public law can be seen in the private service contracts if such contracts are controlled by public authority with the backing of legislation, rule or regulation or at least executive instructions. In the cases in hand, we have not come across any material to infer the existence of public law element in the private contracts in question.” 12. Further, as per his own case, petitioner was not in the regular employment. His employment was casual as is evident from the experience certificates issued in his favour by the College. The absence of issuance of any appointment letter in favour of the petitioner also strengthens the above hypothesis. Another fact that cannot be ignored is that the petitioner was getting only fixed monthly emoluments 10 ( 2013:HHC:5213 ) for the months when his services were availed and thus the nature of job rendered by petitioner was clearly evident. In this view of the matter also, petitioner will not be entitled to any relief by this Court. 13. The objection to the appointment of private respondent in the college also appears to be more of a protest than legal challenge. Without any foundational background nothing can be assumed. No material is there to assume that the private respondent was engaged temporarily to replace the petitioner. 14. It is also not the case where the petitioner had alleged malafide against the College Management. 15. As regards the fact that the College was later taken over by the State Government alongwith the services of its staff in the year 2006 again will not help the cause of the petitioner as his services had come to an end in the month of July 2004 itself. 16. In result, there is no merit in the petition and the same is dismissed. 11 ( 2013:HHC:5213 ) 17. Pending miscellaneous application(s), if any. shall stand disposed of. (Satyen Vaidya) 28th May, 2025 Judge (sushma)