The Bombay High Court observed that an employee’s writ petition is not maintainable against private minority institution when there is no public element in the action complained of.

The Aurangabad Bench held thus in Writ Petition preferred by the employee/teacher against the management i.e., Minority Institution.

A Division Bench of Justice S.G. Mehare and Justice Shailesh P. Brahme observed, "In the matter of Mrs. Satimbla Sharma and others Vs. St. Paul’s Senior Secondary School and others and St. Mary’s Education Society and another Vs. Rajendra Prasad Bhargava and others (supra) one of the parties before the Supreme Court were private minority unaided institutions. Considering the law laid down in last three judgments (supra), writ court has to be satisfied that the action of such an authority, under challenge, is in the domain of public law as distinguished in the private laws. We find that there is no public element in the action complained of in the present matter. The respondent/management was not seeking to achieve the public function for the collective benefit of the public or section of it. It is not established by the petitioner that the service conditions are regulated by the statutory provisions."

Advocate S.S. Thombre appeared on behalf of the Petitioners while AGP S.P. Joshi, Advocates Vivek J. Dhage, and Madhur Golegaonkar appeared on behalf of the Respondents.

In this case, the Petitioner i.e., the employee/teacher sought direction to implement Order of the Joint Director, Higher Education, Nanded Division for payment of salary to him. Another direction which was solicited was to grant affiliation to the post of Urdu subject. In companion Petition, the Management challenged the Order of the Joint Director. The University was permitted to start Urdu language on permanent non-grant basis and the management got the advertisement approved from the University. The Petitioner applied for the post of lecturer for Urdu subject and he got selected.

The Petitioner continued to work with the management and thereafter, demanded salary but there was no response. Resultantly, he approached the High Court and the Writ Petition was disposed of with direction to the Joint Director to decide rival claims of the parties for the salary payment. The management raised plea that an amount of Rs. 10,16,481/- was paid on different occasions. Thereafter, an enquiry was conducted by the Joint Director and it was held that it was not possible to conclude payment made by the management. As there was no response from the management over salary payment, the Petitioner filed a Petition before the High Court.

The High Court in the above regard, noted, “The petitioner failed to demonstrate that there is provision in the statute or subordinate legislation that the petitioner is entitled to have salary equal to an employee working in Government or Government aided college/institution. On the contrary, we find that it is a contract between the petitioner and the respondent/management reflecting from the order of appointment having stipulation of a particular scale.”

The Court added that the Writ Petition of the Petitioner/employee is not maintainable and hence, he is not entitled to claim any relief from the Court.

“There is no objective scrutiny of the claim of the petitioner and the plea of the management. The order is vulnerable. The matter is required to be relegated to the respondent No. 3 for that purpose. We find that the learned counsel for the respondent Mr. V. J. Dhage is justified in contending that impugned order is vague”, it said.

The Court further said that, though employee’s Petition is not maintainable against private minority institution, the Petition of the Respondent/Management is maintainable as it is challenging the enquiry proceedings of the Joint Director and its conclusions.

The Court concluded that, it is open for the Joint Director to decide entitlement, liability, and quantum in the context of the contract between the parties as well as governing norms of either University Grants Commission (UGC) or the University as the case may be.

Accordingly, the High Court dismissed the Employee’s Writ Petition and partly allowed the Management’s Petition.

Cause Title- Syed Waseem Syed Sahab v. The State of Maharashtra (Neutral Citation: 2024:BHC-AUG:30563-DB)

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