ARINDAM SINHA,J. - (1.) Petitioner was confirmed in post of Library clerk with effect from 1st August, 2005 and got promotion to post of library in-charge on 28th March, 2009. Impugned in this writ petition is letter dated 28th July, 2018 informing her that Governing Body took decision and accordingly petitioner was requested to discharge duty in her confirmed post of library clerk with immediate effect. Mr. Lahiri, learned advocate assisting Mr. Bari, learned advocate submits, in the meantime pursuant to memo dated 30th April, 2013 petitioner was on probation in post of librarian. Assuming though not admitting her service as such could be found to be unsatisfactory, she cannot be reverted to post of library clerk when she stood duly promoted to post of librarian in-charge. Hence, challenge to impugned letter demoting his client.
(2.) Mr. Dhar, learned senior advocate appears on behalf of the college and submits, writ petition is not maintainable as his client is a private college. He relies on my judgment dated 27th August, 2018 in WP 1407 (W) of 2018 [Srikanta Maity v. The State of West Bengal and Ors.] in which I said, inter alia, as follows:- "From above discussion this Court is of view that law laid down by Supreme Court regarding interference in matters of service conditions between employee and employer where employer is a private institution, remedy lies in private law. As such the writ petition is found to be not maintainable and is accordingly dismissed." He also relies judgment of Supreme Court in Delhi Public School v. M.K. Gandhi reported in (2015) 17 SCC 353.
(3.) Mr. Lahiri in reply submits, this is a matter of service contract between his client and her employer, being a private college. This is a matter of demotion of his client permissible under public law since the college imparts education as a public function. He relies on two judgments of Supreme Court, firstly in K. Krishnamacharyulu v. Sri. Venkateswara Hindu College of Engineering reported in (1997) 3 SCC 571 , paragraphs 3 and 4 therein. Relevant passages are reproduced below:- "4. It is in dispute that executive instructions issued by the Government have given them the right to claim the pay scales so as to be on a par with the government employees. The question is when there are no statutory rules issued in that behalf, and the institution, at the relevant time, being in receipt of any grants-in-aid; whether the writ petition under Article 226 of the Constitution is maintainable? In view of the long line of decisions of this Court holding that when there is an interest created by the Government in an institution to impart education, which is a fundamental right of the citizens, the teachers who impart the education get an element of public interest in the performance of their duties. As a consequence, the element of public interest requires regulation of the conditions of service of those employees on a par with government employees. In consequence, are they also entitled to the parity of the pay scales as per the executive instructions of the Government? It is also in dispute that all the persons who filed the writ petition along with the appellant had later withdrawn from the writ petition and thereafter the respondent-Management paid the salaries on a par with the government employees. Since the appellants are insisting upon enforcement of their right through the judicial pressure, they need and seek the protection of law. We are of the view that the State has obligation to provide facilities and opportunities to the people to avail of the right to education. The private institutions cater to the need of providing 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, being the arm of the institution, is also entitled to avail of the remedy provided under Article 226; the jurisdiction part is very wide. It would be a different position, if the remedy is a private law remedy. So, they cannot be denied the same benefit which is available to others. Accordingly, we hold that the writ petition is maintainable. They are entitled to equal pay so as to be on a par with government employees under Article 39 (d) of the Constitution." Secondly, he relies on Ramesh Ahluwalia v. State of Punjab reported in (2012) 12 SCC 331 , to paragraphs 12, 13 and 14 therein : "12. We have considered the submissions made by the learned counsel for the parties. In our opinion, in view of the judgment rendered by this Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust there can be no doubt that even a purely private body, where the State has no control over its internal affairs, would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution, for issuance of a writ of mandamus. Provided, of course, the private body is performing public functions which are normally expected to be performed by the State authorities. 13. In the aforesaid case, this Court was also considering a situation where the services of a Lecturer had been terminated who was working in the college run by the Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsave Smarak Trust. In those circumstances, this Court has clearly observed as under: (V.R. Rudani case, SCC pp.700-701, paras 20 and 22) "20. The term 'authority' used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words 'any person or authority' used in Article 226 are, therefore, to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied. x x x x 22. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is imposed by the statute. Commenting on the development of this law, Professor de Smith states : 'To be enforceable by mandamus a public duty does necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.' We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'. Technicalities should come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition." The aforesaid observations have been repeated and reiterated in numerous judgments of this Court including the judgments in Unni Krishnan and Zee Telefilms Ltd. brought to our notice by the learned counsel for the appellant, Mr. Parikh. 14. In view of the law laid down in the aforesaid judgments of this Court, the judgment of the learned Single Judge as also the Division Bench of the High Court cannot be sustained on the proposition that the writ petition would be maintainable merely because the respondent institution is a purely unaided private education institution. The appellant had specifically taken the plea that the respondents perform public functions i.e. providing education to children in their institutions throughout India.";