Jyotishmoy Bora vs Governing Body (Special) Pragjyotish College and Others

D. Biswas, J.—The question to be answered in this writ petition is whether a writ would lie against a private college for irregularities in the appointment of teachers against non-sanctioned post.

I have heard Mrs. N. Saikia, Learned Counsel for the petitioner as well as Mr. B.K. Sarma, Learned Senior Counsel for Respondents No. 1 and 2, Mr. D.K. Gogoi, Learned Counsel for Respondent No. 3 and Mr, A.M. Buzarbaruah, Learned Govt. Advocate, Assam.

In pursuance of an advertisement published by the Respondent College, the petitioner and the Respondent No. 3 along with others applied for the non-sanctioned post of Lecturer in Geography with specialisation in Cartography in Master Degree level. Both the writ petitioner and the respondent No. 3 have had the requisite qualifications. The Selection Committee interviewed the candidates on 28.2.2002 and, thereafter, prepared a list on merit placing the writ petitioner as the first nominee Despite that, to the deprivation of the writ petitioner, Respondent No. 3, the third nominee was appointed by the College Authority.

Amenability of the private college to the writ jurisdiction of the Court has been dealt with by this Court in Parimal Chakraborty v. State of Meghalaya and Ors. (2000 (3) GLT 441). In paragraph-12, this Court held as follows :

"12. The teachers of educational institutions established under statutory provisions or under the control of State are entitled to vindicate their grievances availing remedies under the Article 226 ; therefore, there must exist justifiable reasons for refusal of the same to the teachers of private institutions. Nonavailability of any legislative shield cannot be criterian for such refusal. It is for this reason the Supreme Court in.K. Krishnamacharyulu and others (supra) while giving effect to an executive order held that the writ is maintainable. This decision of the Supreme Court has to be read in a larger amplitude."

Thereafter, similar question was also raised in Dipankar Roy v. Principal & Secretary, Public College of Commerce, Dimapur and ors. 2001 (2) GLT 361 Relying upon the decisions of the Apex Court in Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., and in K. Krishnamacharyulu and ors. v. Sri Venkateswra Hindu College of Engineering and Anr. reported in AIR 1998 SC 295 the Learned Single Judge reiterated the same view with regard to the maintainability of the writ petition.

Therefore, there cannot be any doubt that in an appropriate case the Court will not hesistate to exercise the discretionary powers under Article 226 to ensure fairness in the affairs of a private college. The law is settled by the Supreme Court that High Courts can issue writs, orders or directions even to any person or authority discharging public duty for enforcement of the fundamental rights or for any other purpose. In Miss. Ravneet Kaur Vs. The Christian Medical College and Another, it has been held as follows :

"38. A private education institution receiving aid from State funds may not be a ''State'' as defined in Article 12. Yet, Article 29(2) confers a fundamental right on all citizens not to be discriminated against in the matter of admission to such an institution on grounds only of religion, caste, language or any of them. If a citizen is denied admission by such an institution on any of the grounds specified in Article 29(2), can it be said that the aggrieved person cannot seek a writ for the enforcement of his rights either under Article 32 or 226 on the ground that it happens to be a private educational institution Certainly not.

In view of these conclusions, the view taken by the Full Bench in Gurpreet Singh Sidhu and Others Vs. Punjab University, Chandigarh and Others, wherein it was held that "against these institutions, no general fundamental right of equality of admission on merits can even be invoked...." is no longer good law. A citizen can invoke the right to equality in the matter of admission on merit even against a private medical college affiliated to a University. This right "without a remedy will become a mere adornment....... as writ in water." It is so.".

Therefore, a public body discharging public function even though not a State within the meaning of Article 12 shall also be amenable to writ jurisdiction. The above decision was rendered in a case where denial of admission to an institution was challenged. But the underlying principles will govern the affairs of a public body which are relatable to public duties. Selection and appointment of teachers are Certainly closely connected with public instructions and, therefore, a College, even though private, cannot be kept beyond the purview of writ jurisdiction of the High Court.

In the instant case, the Governing Body of the College had not submitted any affidavit. The Respondent No. 3 in his affidavit tried to justify that he is superior in merit to the writ petitioner. The selection has been made by an expert committee constituted by the College and this Court will not re-place the decision of the election Committee by its own on microscopic scrutiny of the selection process reallocating marks. Interference with such selection is permissible only when there is palpable anamolies and irregularities in the decision making process.

The College is receiving grant-in-aid from the State Government and it is being regulated by the Government inasmuch as that the Governing Body is also constituted by the State Government. That being the position, when the College decides to appoint teachers through advertisement, it cannot be allowed to act arbitrarily. Fairness in the selection process is a must even for a private college in the matter of appointment of teachers. No reason has been advanced by the Governing Body, in any manner whatsoever, to justify the appointment of Respondent No. 3 to the deprivation of the writ petitioner who was declared first in order of merit. Hence, this Court has no option but to allow the writ petition and interfere with the appointment of the Respondent No. 3.

In the result, the writ petition is allowed. The appointment of Respondent No. 3 issued vide order dated 24.7.2000 is hereby set aside. The College Authority is directed to appoint the petitioner in the said post of lecturer, if the continuance of this non-sanctioned post is necessary in the interest of students.

No costs.