Kamlesh Agnihotri and Another vs State of U.P. and Others

A.P. Sahi, J.—Since common questions of law and fact are involved in these petitions, therefore, they are being disposed of by a common judgment by this Court.

Heard Sri Shesh Kumar, learned Counsel for the Petitioner and Sri Neeraj Tiwari for the Respondent - University.

The Petitioners claim themselves to be the Teachers of a Campus School which was established under an administrative decision of the Executive Council of the University dated 3.8.1980. This institution was established for the purpose of providing education to the children of the employees of the University. During the course of its functioning, the said institution was got affiliated with the Central Board of Secondary Education.

Gradually, it appears that the number of students dwindled which impelled the University to review the continuance of such an institution and for that the University took into account the Audit Report which indicated huge deficiencies in expenditure being incurred by the University itself. Learned Counsel for the Petitioner Sri Shesh Kumar vehemently contends that all the teachers have been continuing for almost 20 years and, therefore, their discontinuance by the University is an act which can be termed arbitrary being violative of Article 14 of the Constitution of India.

Sri Shesh Kumar further contends that as a matter of fact, the University being a State and an authority within the meaning of Article 12 of the Constitution, they ought to have proceeded to make adjustment of the Petitioners against any available post sanctioned by the State Government for the University. He submits that as a matter of fact certain class-IV employees have been accommodated by the University and, therefore, such an attitude should not be adopted by the University in respect of these Petitioners, who have spent their life time within the campus and have lost all other avenues of employment.

Sri Neeraj Tiwari, learned Counsel for the Respondents, contends that the University may have all sympathy for the Petitioners but so far as law is concerned, it is evident that this campus school was never funded by any State funds and it was out of the income of the institution that the salary etc. was paid by the University. Whatever deficiency was found was aided by the University to which serious objections have been taken by the Audit Department inasmuch as the State Government has not extended any financial aid for running the Campus School within the University.

Sri Tiwari further submits that so far as the engagement of the Petitioners are concerned, they have been engaged under the executive instructions of the University and further their engagement was in accordance with the by-laws framed for running the said institution. He further submits that so far as the adjustment of class-IV employees is concerned, the Petitioners do not belong to that class and, therefore, they cannot complain of violation of Article 14 of the Constitution of India. Sri Tiwari has further invited the attention of the Court to the averments contained in the counter-affidavit indicating that the institution was affiliated to the Central Board of Secondary Education and the Campus School was closed down in view of the decision taken and intimated through the letter dated 30.6.2007 after completion of the session 2006-07. He submits that so far as the claim of the Petitioners in the teaching profession is concerned, there is no equivalent post against which the Petitioners can be considered sympathetically for their engagement. They having no right to continue, the writ petition as framed cannot be entertained.

Having heard learned Counsel for the parties and keeping in view the submissions advanced, the fact remains undisputed that the institution was established under the resolution of the executive council and was to run as a Campus School for the purpose of providing education to the children of the employees of the University. The viability of this institution was adjudged keeping in view the performance and the number of students and the University ultimately found that it was not possible to continue with the said Campus School and accordingly ordered its closure. There is no material on the record, which may indicate that there is any financial aid, extended by the State or by any authority for the establishment of the institution or for the payment of salary to the teacher. The deep and pervasive control test has now been laid down by the Supreme Court in the case of Pradeep Kumar Biswas and Others Vs. Indian Institute of Chemical Biology and Others, Paragraph No. 40 of the said decision lays down as under:

The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be - whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control most be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.

A perusal of the said paragraph would clearly demonstrate that there are several factors which are required to be fulfilled before the criteria of deep and pervasive control can be pressed into service in order to maintain a writ petition against a body running such an institution. Undoubtedly, the University is a State within the meaning of Article 12 of the Constitution but the present activity of running a Campus School would not fall within its statutory obligation and, therefore, in the absence of such obligation on the part of the University particularly without any corresponding right in favour of the Petitioner and keeping in view the tests laid down in the case of Pradeep Kumar Biswas (supra), in my opinion, the present case on behalf of the Petitioner cannot be entertained for the reliefs claimed.

Sri Shesh Kumar then contends that keeping in view the nature of the engagement of the Petitioner which has continued for the past almost 20 years, the University should have formulated a scheme for the absorption of adjustment of the Petitioners. In this regard, suffice it to say, that no mandamus is required to be issued by this Court and it is expected that keeping in view this peculiar situation of the teachers, who have spent almost half of their life in the institution, it would be in the interest of justice for the University to consider the request of the Petitioner sympathetically and take an appropriate decision in the matter. The University is expected to take a decision as expeditiously as possible.

With the aforesaid observations, these writ petitions stand disposed of.