ST. MARY’S EDUCATION SOCIETY & ANR. versus RAJENDRA PRASAD BHARGAVA & ORS.

[2022] 8 S.C.R. 301

ST. MARY’S EDUCATION SOCIETY & ANR.

RAJENDRA PRASAD BHARGAVA & ORS.

(Civil Appeal No. 5789 of 2022)

AUGUST 24, 2022

[ANIRUDDHA BOSE AND J. B. PARDIWALA, JJ.]

Constitution of India – Art. 226 – CBSE Affiliation Bye laws1, 2, 23(xi), 25(xii), 26, 27, 44, 46, 49 and 51 – Writ petition –Maintainability of – Appellant no.1-Society runs private unaidedminority educational institution – The respondent no.1 was anemployee of appellant – The appellant issued show cause notice-cum-suspension order to the respondent for various allegedmisconduct in service – After the departmental enquiry, therespondent’s services were terminated – The respondent challengedthe termination order before the Disciplinary Committee constitutedby the appellant but the appeal was dismissed – The respondentthen filed writ petition under Article 226 of the Constitution ofIndia seeking to set aside the Disciplinary Committee’s order andthe termination order – The appellants raised preliminary objectionon the maintainability of the writ petition – Single Judge of HighCourt rejected the writ application as not being maintainable – Onappeal, the Division bench of High Court set aside the judgment ofthe Single Judge and held writ petition maintainable – On appeal,held: The power of judicial review under Article 226 of theConstitution of India can be exercised by the High Court even if thebody against which an action is sought is not state or an authorityor an instrumentality of the state, but there must be public elementin the action complained of – Further held, an application u/Art.226 of the Constitution is maintainable against person or bodydischarging public duties or functions –However, for an educationalinstitution to be subject to judicial review, the act complained ofmust have direct nexus with the discharge of public duty –Furthermore, employees of such institutions cannot invoke Article226 in matters relating to service if they are not governed by statutoryprovisions – writ petition under Article 226 cannot be invokedfor individual wrongs or breach of mutual contracts without publiclaw element - In the case at hand, the action challenged had no

CDEF

Apublic element, and writ of mandamus cannot be issued as theaction was essentially of private character – Writ applicationrejected on the ground of maintainability – Order passed by DivisionBench of High court set aside.

Allowing the appeal, the Court,B

HELD:1. Final conclusions are as under:

(a) An application under Article 226 of the Constitution ismaintainable against person or body discharging public dutiesor public functions. The public duty cast may be either statutoryor otherwise and where it is otherwise, the body or the personCmust be shown to owe that duty or obligation to the publicinvolving the public law element. Similarly, for ascertaining thedischarge of public function, it must be established that the bodyor the person was seeking to achieve the same for the collectivebenefit of the public or section of it and the authority to do soDmust be accepted by the public.

(b) Even if it be assumed that an educational institution isimparting public duty, the act complained of must have directnexus with the discharge of public duty. It is indisputably publiclaw action which confers right upon the aggrieved to invokeEthe extraordinary writ jurisdiction under Article 226 for aprerogative writ. Individual wrongs or breach of mutual contractswithout having any public element as its integral part cannot berectified through writ petition under Article 226. WhereverCourts have intervened in their exercise of jurisdiction underArticle 226, either the service conditions were regulated by theFstatutory provisions or the employer had the status of “State”within the expansive definition under Article 12 or it was foundthat the action complained of has public law element.(c) It must be consequently held that while body may bedischarging public function or performing public duty and thusGits actions becoming amenable to judicial review by aConstitutional Court, its employees would not have the right toinvoke the powers of the High Court conferred by Article 226 inrespect of matter relating to service where they are not governedor controlled by the statutory provisions. An educationalinstitution may perform myriad functions touching various facetsH

of public life and in the societal sphere. While such of thosefunctions as would fall within the domain of “public function” or“public duty” be undisputedly open to challenge and scrutinyunder Article 226 of the Constitution, the actions or decisionstaken solely within the confines of an ordinary contract of service,having no statutory force or backing, cannot be recognised asbeing amenable to challenge under Article 226 of the Constitution.In the absence of the service conditions being controlled orgoverned by statutory provisions, the matter would remain inthe realm of an ordinary contract of service.

(d) Even if it be perceived that imparting education byprivate unaided the school is public duty within the expandedexpression of the term, an employee of non-teaching staffengaged by the school for the purpose of its administration orinternal management is only an agency created by it. It isimmaterial whether “A” or “B” is employed by school todischarge that duty. In any case, the terms of employment ofcontract between school and non-teaching staff cannot and shouldnot be construed to be an inseparable part of the obligation toimpart education. This is particularly in respect to the disciplinaryproceedings that may be initiated against particular employee.It is only where the removal of an employee of non-teaching staffis regulated by some statutory provisions, its violation by theemployer in contravention of law may be interfered by the court.But such interference will be on the ground of breach of law andnot on the basis of interference in discharge of public duty.

(e) From the pleadings in the original writ petition, it isapparent that no element of any public law is agitated or otherwisemade out. In other words, the action challenged has no publicelement and writ of mandamus cannot be issued as the actionwas essentially of private character. [Para 68][346-B-H; 347-A-E]

Marwari Balika Vidhyalaya v. Asha Shrivastaga, (2020)14 SCC 449 : [2019] 2 SCR 722 – distinguished.

Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC331 : [2012] 12 SCR 315; Executive Committee

of Vaish Degree College v. Lakshimi Narain, (1976) 2SCC 58 : [1976] 2 SCR 1006; In Km. Regina v. St.Aloysins High Elementary School and Another, (1972)4 SCC 188 : [1971] Suppl. SCR 6 : AIR 1971 SC 1920,Km. Anita Verma v. D.A.V. College ManagementCommittee, Unchahar, Rai Bareilly, (1992) 1 UPLBEC30; Satimbla Sharma v. St. Pauls Senior SecondarySchool [(2011) 13 SCC 760 : [2011] 10 SCR 203;K. Krishnamacharyulu v. Sri Venkateshwara HinduCollege of Engineering, (1997) 3 SCC 571 : [1997] 2SCR 368; Binny Ltd. and Another v. V. Sadasivan andOthers, (2005) 6 SCC 657 : [2005] 2 Suppl. SCR 421;Apollo Tyres Ltd. v. C.P. Sebastian, (2009) 14 SCC 360: [2009] 7 SCR 336; K.K. Saksena v. InternationalCommission on Irrigation and Drainage and Others,(2015) 4 SCC 670 : [2014] 14 SCR 892; Shri AnadiMukta Sadguru Shree Muktajee VandasjiswamiSuvarna Jayanti Mahotsav Smarak Trust & Ors. v. V.R.Rudani & Ors. (1989) 2 SCC 691 : [1989] 2 SCR 697;G. Bassi Reddy v. International Crops Research Institute& Anr., (2003) 4 SCC 225 : [2003] 1 SCR 1174; PragaTools Corporation v. Shri C.A. Imanual, (1969) 1 SCC585 : [1969] 3 SCR 773; Federal Bank Ltd. v. SagarThomas, (2003) 10 SCC 733 : [2003] 4 Suppl. SCR121; Janet Jeyapaul v. SRM University & Ors., 2015(13) SCALE 622; Committee of Management, DelhiPublic School & Anr. v. M.K. Gandhi, (2015) 17 SCC353; Trigun Chand Thakur v. State of Bihar & Ors.,(2019) 7 SCC 513; Roychan Abraham v. State of U.P.,AIR 2019 All 96; S. K. Varshney v. Principal, Our Ladyof Fatima H.S.S., in the Civil Appeal Nos. 8783-8784of 2003 dated July 19, 2007(decided by SupremeCourt of India); case of Vidya Ram Misra v. TheManaging Committee Shri Jai Narain College, (1972)1 SCC 623 : [1972] 3 SCR 320 : AIR 1972 SC 1450;T.M.A. Pai Foundation v. State of Karnataka, (2002) 8SCC 481: [2002] 3 Suppl. SCR 587; Ahmedabad St.Xavier’s College Society v. State of Gujarat, (1974) 1SCC 717 : [1975] 1 SCR 173; Unnikrishnan P.J. v.

State of A.P., (1993) 4 SCC 111 : 1993 (3) SCALE 248;,Sushmita Basu v. Ballygunge Siksha Samity, (2006) 7SCC 680 : [2006] 6 Suppl. SCR 506; RamakrishnanMission v. Kago Kunya, (2019) 16 SCC 303 : [2019] 5SCR 452; Uttam Chand Rawat v. State of U.P., (2021) 6All LJ 393 (FB) – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5789of 2022.

From the Judgment and Order dated 15.12.2021 of the High Courtof Madhya Pradesh at Indore in Writ Appeal No.485 of 2017.

APai Amit, Rohit R. Saboo, Ms. Pankhuri Bhardwaj, Advs. for theAppellants.

Rupesh Kumar, Rajeev Sharma, Ms. Pankhuri Shrivastava,Ms. Neelam Sharma, Advs. for the Respondents.

Rajendra Prasad Bhargava, in-person.B

The Judgment of the Court was delivered by

J. B. PARDIWALA, J.

1. Leave granted.

2. This appeal is at the instance of private unaided minorityCeducational institution and its disciplinary committee, (respondents beforethe High Court) and is directed against the judgment and order dated15.12.2021 passed by Division Bench of the High Court of MadhyaPradesh, Bench Indore in the Writ Appeal No. 485 of 2017 by which theDivision Bench set aside the judgment and order passed by learnedDsingle Judge of the High Court and held that writ petition filed by anemployee of private unaided minority educational institution seeking tochallenge his termination from service is maintainable in law.

3. In the present appeal, two pivotal issues fall for considerationof this Court:-E(a) Whether writ petition under Article 226 of the Constitutionof India is maintainable against private unaided minorityinstitution?

(b) Whether service dispute in the private realm involving aprivate educational institution and its employee can be adjudicatedFin writ petition filed under Article 226 of the Constitution?

In other words, even if body performing public duty is amenableto writ jurisdiction, are all its decisions subject to judicial review oronly those decisions which have public element therein can bejudicially reviewed under the writ jurisdiction?G4. The aforesaid two questions, though not vexed, neverthelessdespite plethora of case laws, always give rise to debate.

FACTUAL MATRIX

5. The appellant No. 1-Society runs private unaided educationalHinstitution. The appellant No. 2 is the disciplinary committee constituted

by the appellant No. 1-Society for the purpose of its internal management.The respondent No. 1 herein (original writ applicant before the learnedsingle Judge) was serving as an office employee of the appellant No. 1.It appears from the materials on record that show cause notice-cum-suspension order dated 08.09.2014 was issued by the appellant No. 1herein to the respondent No.1 for the various alleged misconduct inservice. The respondent No. 1 herein was thereafter issued adepartmental chargesheet dated 08.12.2014 essentially on six grounds.

6. The statement of charges and allegations as contained in thechargesheet dated 08.12.2014 are as under:-

“Charge I-

That, you refused to receive and deposit the PTA fund fromthe lady teachers of the school on 4[th] August, 2014 andmisbehaved with them. You talked to them rudely, loudly andyour language was improper. Your refusal to receive anddeposit the amount during the working hours is grossmisconduct and dereliction of your duty and act subversiveof discipline.

Charge-II-

That, you are in habit of writing unwarranted letters todifferent authorities against the Principal of the school usingvery disrespectful, derogatory and offensive language,making false accusation which is spoiling the image andreputation of this school.

Charge-III-

That, you have threatened and pressurized the institution byclosing your Bank Account in which your monthly salary wasbeing deposited for the last so many years. You also actuallyrefused to accept and receive your monthly salary for themonth of August, 2014, which was offered to you by chequepersonally on 01.09.2014. In the following month the salaryfrom 1[st] to 8[th] September and 9[th] to 30[th] September asSubsistence Allowance was also offered to you by cheque on01.10.2014 which you refused to accept again, saying that-“I will take the subsistence allowance but until and unless Iget justice …” (Letter dated 10.10.2014).

Your refusal to accept the salary shows that you donot wish to continue the relationship of employer – employeewith the school because the school cannot take your servicewithout paying your salary.

Charge-IV-

That earlier also your rude behavior with the Principal ofthe school was noticed for which you were warned andadvised to improve your behavior and talk politely. However,no improvement has been shown by you in your behavior.You have misbehaved with the two earlier Principals alsonamely: (1) Sr. Lalita (Letter dated 17.04.2009) and (2) Sr.Flavia.

Charge-V-

That, you were threatening the institution by writing to thePresident of our country that if something happens to youphysically or mentally on work due to such behavior at homethe sole responsibility of it would be on the SchoolManagement, the Principal and the various authorities. Thisbehaviour has compelled the school to complain to the policeregarding your threat.

ECharge-VI-

That, you are in the habit of taking leaves at will and insistingon taking leave at your sole convenience, sometimes withoutany sanction also.”

After conclusion of the departmental enquiry, the services of therespondent No. 1 came to be terminated vide order dated 08.05.2015.

7. The respondent No. 1 herein challenged the order of terminationon various grounds in appeal before the Disciplinary Committee of theappellant No. 1. The appeal was filed by the respondent No. 1 hereinunder Rule 49 of the CBSE Affiliation Byelaws. The DisciplinaryCommittee consisted of (i) Sr. M. Deepa, Chairman, (ii) Sr. M. Georgina,School Manager, (iii) S.N. Purwar, Advisor CBSE Nominee, and (iv)Sadhna Paranjape, School Managing Committee Member. The appealwas ordered to be dismissed by the Disciplinary Committee, the appellantNo. 2 herein, vide order dated 23.09.2016.

8. In view of the aforesaid, the respondent No. 1 invoked the writjurisdiction of the High Court under Article 226 of the Constitution ofIndia. In the writ petition, the respondent No. 1 arrayed the followingfive respondents:-

1. Union of India

2. Central Board of Secondary Education

3. St. Mary’s Education Society

4. Disciplinary Committee of the School

5. Mr. T.R. Lapalikar (retired Deputy Labour Commissionerappointed as Enquiry Officer)

9. It is pertinent to note that despite the above five respondentsbeing arrayed as aforestated, the principal relief sought in the writ petitionfiled by the respondent No. 1 herein was to set aside the order dated23.09.2016 passed by the Disciplinary Committee of the school and toset aside the order of termination dated 08.05.2015 passed by the appellantNo. 1 herein. In other words, the respondent No.1 herein sought writ inthe nature of certiorari to be issued against the private unaided minorityinstitution. It may not be out of place to state at this stage that no reliefwas sought against the Union of India, respondent No. 2 herein and theCentral Board of Secondary Education (CBSE), respondent No. 3 herein.

10. The appellants herein raised preliminary objection beforethe learned single Judge of the High Court on the maintainability of thewrit petition filed by an employee of private unaided minority institution.

11. The learned single Judge of the High Court upheld thepreliminary objection raised by the appellants herein and rejected thewrit application as not being maintainable. While rejecting the writapplication vide order dated 10.07.2017 on the ground of not beingmaintainable in law, the learned single Judge held as under:-

“So far as the judgment in the matter of K. Krishnamacharyulu(supra) relied upon by the petitioner is concerned, in thatcase in respect of teachers duly appointed to post in theprivate institution, it has been held by the Supreme Court thatwhen an element of public interest is created and institutionis catering to that element, the teacher, the arm of theinstitution is also entitled to avail of remedy provided under

Article 226. In the present case, petitioner is not teacherbut is member of clerical staff being L.D.C., hence he is notentitled to the benefit of that judgment.

So far as the judgment in the matter of Frank Anthony PublicSchool Employees Association(supra) is concerned, that wasBa case where the teachers had approached the court for writof mandamus seeking equalisation of their pay scales andcondition of service with those of their counterparts ingovernment schools and in that context it was observed that‘the management of minority Educational institution cannotbe permitted under the guise of the fundamental rightCguaranteed by Article 30(1) of the Constitution, to oppressor exploit its employees any more than any other privateemployee, therefore the said judgment is distinguishable onits own facts.

Similarly the benefit of Single Bench judgment of this courtDin the matter of Mrs. Kirti Bugde (supra) cannot be grantedto the petitioner because in that judgment the petitioner wasa teacher and member of the academic staff but that is notso in the present case.

Having regard to the aforesaid, I am of the opinion that writEpetition filed by the petitioner for issuance of writ of certiorariagainst the action of respondent No.3 which is privateunaided institution is not maintainable under Article 226 ofthe Constitution of India, which is accordingly dismissed,however with liberty to the petitioner to avail such otherremedies as are available in the law.”F

12. Being aggrieved with the aforesaid judgment and order passedby the learned single Judge of the High Court, the respondent No. 1herein went in appeal under Section 2(1) of the M.P. Uchcha Nyayalaya(Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005. The Division BenchGof the High Court thought fit to set aside the judgment and order passedby the learned single Judge and allowed the appeal holding that the writapplication filed by the respondent No.1 herein against the appellantsherein challenging the order of termination from service was maintainableunder Article 226 of the Constitution. The appeal Court remitted thematter to the learned single Judge for being considered on its own merits.H

The Division Bench, while allowing the appeal filed by the respondentNo. 1 herein, held as under:-

“11. Since all the aforesaid previous judgments have beenconsidered, the judgment of Marwari (supra) is bindingprecedent. The present appellant was terminated from aprivate institution. In Marwari (supra) and Ramesh Ahluwalia(supra) also the termination of Teacher/Officer was called inquestion in writ petition. As per this judgment, the writ petitionis maintainable. division bench of this Court in YogendraSingh Dhakad Vs. Delhi Public School Society & Ors. 2014SCC OnLine MP 162 has also taken the same view. So far asthe judgment of Supreme Court in Executive Committee ofVaish Degree College, Shamli & Ors. Vs. Lakshmi Narain &Ors. (1976) 2 SCC 58 is concerned, it is not applicable to thepresent case as it did not arise out of writ petition.

12. Considering the aforesaid, order of learned Single Judgedated 10.07.2017 passed in WP No.1052/2017 is set aside.The writ petition is restored to its original number. We haveno doubt that writ court shall make every endeavor to decidethe petition expeditiously preferably within two months.

13. The writ appeal is allowed to the extent indicated above.”

13. It appears from the aforesaid that the appeal court heavilyrelied upon the decision of this Court rendered in the case of MarwariBalika Vidhyalaya v. Asha Shrivastaga, reported in (2020) 14 SCC449, which, in turn, has relied upon its decision in the case of RameshAhluwalia v. State of Punjab, reported in (2012) 12 SCC 331.

14. In view of the aforesaid, the appellants are before this Courtwith the present appeal.

LEGAL STATUS OF THE APPELLANT NO. 1 - SOCIETY

15. The appellant No. 1 is Society registered under the MadhyaPradesh Society Registrikaran Adhiniyam, 1973. The Society runs anall-girls school in Mhow, Indore, Madhya Pradesh, by the name St. Mary’sHigher Secondary School, which was founded by group of FrenchCatholic Nuns in 1893. The school is private unaided minority educationalinstitution, which enjoys the protection guaranteed under Article 30(1)of the Constitution. There is absolutely no Governmental control over

Athe functioning and administration of the school. The respondent No. 1herein was employed in this school prior to his termination. The school ispresently affiliated to the Central Board of Secondary Education (CBSE)and is thus governed by its Rules and Byelaws. Further, the Society hasits own Byelaws, namely, (1) the Service Conditions for the Employeesof St. Mary’s School and (2) Service Rules for Teaching and Non-BTeaching Staff. The appellant No. 1-Society and the school are absolutelyprivate institutions, without any aid or control of the Government or anyinstrumentality of the Government, and therefore, not “State” withinthe meaning of Article 12 of the Constitution.

16. CBSE-i AFFILIATION BYELAWSC

Chapter- I

1. Short Title and Definitions:

1. These Byelaws shall be called Central Board of SecondaryEducation – International Affiliation Byelaws.D2. They are effective from April, 1, 2010 with modifications /amendments from time to time.

3. In case of any dispute(s) regarding the withdrawal of notgranting affiliation or any other matter pertaining to upgradationand /or any matter arising in respect of anything pertaining toEaffiliation with any school and / or any other person, society,company or organization , the courts and tribunals at Delhi onlyshall have the exclusive jurisdiction to entertain such disputes.

2. Definitions:

F(i) “Affiliation” means formal enrolment of school amongthe list of approved schools of the Board following prescribed/ approved courses of studies up to class VIII as well as thosepreparing students according to prescribed courses for theBoard’s International Curriculum examinations.

Gxxx

(xxxxii) “School” means any recognized school impartingelementary / middle / secondary /senior secondary leveleducation and includes:

(i) school established, owned or controlled by theHappropriate Government or local authority;

(ii) an aided school receiving aid or grants to meet whole orpart of its expenses from the appropriate Government or thelocal authority;

(iii) school belonging to specified category; and

(iv) an unaided school not receiving any kind of aid or grantsto meet its expenses from the appropriate Government or thelocal authority.

Chapter-6

23. Powers and functions of the School Managing Committee:

(xi) It shall exercise powers to take disciplinary action againststaff.

25. Head of the School – Duties, Powers and Responsibilities:

(xii) Supervise, guide and control the work of the teachingand non- teaching staff of the school.

Chapter -7

Service Rules for Employees:

26. Short Title:

(1) Each school affiliated/ to be affiliated with the Board shallframe Service Rules for its employees which will be as perEducation Act of the State/ Union Territory, if the Act makesadoption of the same obligatory, otherwise as per ServiceRules given in subsequent sections.

(2) Service Contract will be entered with each employee asper the provision in the Education Act of the State / UnionTerritory or as given in Appendix III, if not obligatory as perthe State Education Act / Act applicable in the country in whichthe school is situated.

27. Appointments:

(1) All appointments to all categories of employees exceptGroup ‘D’ employees (multitasking staff/ housekeeping) asper relevant country/Government of India gradation shall bemade by Managing Committee either by direct recruitment orby promotion through Selection Committee constituted by

Athe School Society/Trust/Company Registered under Section25 of the Companies Act, 1956 or under the appropriate Actsof relevant country and in accordance with and upon suchconditions as the Managing committee may decide, which shallbe consistent with norms of the Board / Government if statutoryprovision exists. Appointment of Group ‘D’ employees will beBmade by the Principal through constituted SelectionCommittee.

(2) The Selection Committee shall include

a) In the case of recruitment of the Head of the School:

C(i) the President of the Society;

(ii) the Chairman of the Managing Committee;

(iii) an educationist, nominated by the managing committee;(iv) person having experience of administration of schools,Dnominated by the Managing Committee; and

(v) an academic officer or representative of the Board.

b) In the case of recruitment of teachers and librarian:

(i) the Chairman of the managing committee;

E(ii) Head of the School;

(iii) an educationist, nominated by the managing committee;and

(iv) subject expert

Fc) In the case of recruitment of clerical staff / LaboratoryAssistant:

(i) The Chairman of the managing committee or any memberof the managing committee nominated by the Chairman.

(ii) Head of the school;G

(iii) Manager/ Correspondent of the School

d) In case of recruitment of class IV staff / multitasking staff/housekeeping staff:

(i) Head of the school;

(ii) nominee of School Managing Committee.

(3) The Selection Committee shall regulate its own procedureand in the case of any difference of opinion amongst themembers of the Selection Committee on any matter, it shall bedecided by the trust / society running the school or Board.

(4) The appointment letters of every employee of schoolshall be issued by its managing committee.

(5) Where any selection made by the Selection Committee isnot acceptable to the managing committee of the school, themanaging committee shall record its reason for suchnonacceptance and refer the matter to Board and the trust orsociety or Company registered under Section 25 of theCompanies Act, 1956 or under the appropriate Acts ofrelevant country running the school and the trust or society,as the case may be, shall decide the same.

(6) Employees shall be appointed subject to the provisions ofthis agreement and they shall have to comply with all therequirements of the provisions contained herein.

44. Code of Conduct:

Byelaw number 44 of the Chapter-7 prescribes that everyemployee shall be covered by the code of conduct. Itprescribes the acts that constitute breach of code of conduct,the acts which shall not be deemed as breach is code ofconduct.

46. Disciplinary Procedure:

Suspension

1. The School Managing Committee may place an employeeunder suspension where:

a. The disciplinary proceedings against her are contemplated

or pending.

b. case against her in respect of any criminal offence isunder investigation or trial;

c. She is charged with embezzlement;

d. She is charged with cruelty / physical punishment or mentalharassment towards any student or any employee of the school.

e. She is charged with misbehavior towards any parent,guardian student or employee of the school;

f. She is charged with breach of any other Code of Conduct.

49. Procedure for Imposing Major Penalty:

1. No order imposing on any employee any major penaltyshall be made except after an inquiry is held as far as maybe, in the manner specified below:

a) The disciplinary authority shall frame definite charges onthe basis of the allegation on which the inquiry is proposedto be held and copy of the charges together with thestatement of the allegations on which they are based shall befurnished to employee and she shall be required to submitwithin such time as may be specified by the disciplinaryauthority but not later than two weeks, written statement ofher defence and also to state whether she desires to be heardin person;

b) On receipt of the written statement of defence, or where nosuch statement is received within the specified time, thedisciplinary authority may itself make inquiry in to such ofthe charges as are not admitted or if it considers it necessaryto do so, appoint and inquiry officer for the purpose;

c) At the conclusion of the enquiry the enquiry officer shallprepare report of the enquiry recording her findings oneach of the charges together with the reasons thereof;

d) The disciplinary authority shall consider the report of theenquiry and record its findings on each charge and if thedisciplinary authority is of opinion that any of the majorpenalties should be imposed it shall:

(i) furnish to the employee copy of the report of the enquiryofficer, where an enquiry has been made by such officers;

(ii) give her notice in writing stating the action proposed tobe taken in regard to her and calling upon her to submit withinthe specified time, not exceeding two weeks, suchrepresentation as she may wish to make against the proposedaction;

(iii) on receipt of the representation if any, made by theemployee, the disciplinary authority shall determine whatpenalty, if any should be imposed on the employee andcommunicate its tentative decision to impose the penalty tothe Committee for its prior approval;

(iv) after considering the representation, made by theemployee against the penalty, the disciplinary authority shallrecord its findings as to the penalty, which it proposes toimpose on the employee and send its findings and decision tothe Committee for its approval and while doing so thedisciplinary authority shall furnish to the employee all relevantrecords of the case including the statement of allegations,charges framed against the employee, representation madeby the employee, copy of the enquiry report, where suchenquiry was made and the proceedings of the disciplinaryauthority.

2. No order with regard to the imposition of major penaltyshall be made by the disciplinary authority except after thereceipt of the approval of the Committee.

51. Disciplinary Committee:

1. In case the employee wishes to appeal against the order ofthe Disciplinary authority, the appeal shall be referred to aDisciplinary Committee. The Disciplinary Committee shallconsist of the following:

a) The Chairman of the School Managing committee or inher absence any member of the Committee, nominated by her.

b) The Manager of the School, and where the disciplinaryproceeding is against her any other person of the Committeenominated by the Chairman.

ABC

Ac) nominee of the Board appropriate authority, She shallact as an adviser.

d) The Head of the School, except where the disciplinaryproceedings is against her, the Head of any other schoolnominated by the CBSE or Director of Education in case theBAct so provides.

e) One teacher who is member of School ManagingCommittee of the school nominated by the Chairman of theCommittee.

2. The Disciplinary Committee shall carefully examine theCfindings of the enquiry officer reasons for imposing penaltyrecorded by the Disciplinary Authority and the representationby the employee and pass orders as it may deem fit.

Appendix–IV attached to the Byelaws is with respect to theminority educational institutions. Clause 6 of Appendix-IV readsDthus:-

“6. Disciplinary Control over Staff in Minority EducationalInstitutions: While the managements should exercise thedisciplinary control over staff, it must be ensured that theyhold an inquiry and follow fair procedure before punishmentEis given. With view to preventing the possible misuse of powerby the management of the Minority Educational Institutions,the State has the regulatory power to safeguard the interestsof their employees and their service conditions includingprocedure for punishment to be imposed.”

(Emphasis supplied)

SUBMISSIONS ON BEHALF OT THE APPELLANTS

17. Mr. Pai Amit, the learned counsel appearing for the appellants,vehemently submitted that the Division Bench of the High Courtcommitted serious error in passing the impugned judgment and order.GHe would submit that the learned single Judge of the High Court rightlytook the view that the writ petition filed by the respondent No.1 hereinseeking to challenge the order of termination passed by the appellantNo. 1 herein could not be said to be maintainable in law. He wouldsubmit that the Division Bench of the High Court in an intra-court appealHought not to have taken the view that the writ petition under Article 226

of the Constitution at the instance of the respondent No. 1 herein wasmaintainable before the learned single Judge.

18. Mr. Pai would submit that the Division Bench of the HighCourt mis-directed itself by relying upon the two decisions of this Courtrendered in the cases of Ramesh Ahluwalia (supra) and MarwariBalika Vidhyalaya (supra).

19. Mr. Pai laid much stress on the following three aspects of thematter:-

(a) Indisputably, the appellant No. 1 is private unaided minorityeducational institution;

(b) The dispute between the appellants and the respondent No. 1herein is purely contractual in nature and does not involve anypublic law element, and

(c) The respondent No.1 herein has sought relief only against thetwo orders of termination and both of which have been passedby the appellant No. 1 in its capacity as private body.

20. In such circumstance referred to above, Mr. Pai prays thatthere being merit in his appeal, the same may be allowed and the impugnedorder passed by the Division Bench of the High Court may be set aside.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

21. The respondent No. 1 herein appeared virtually in-person. Herelied upon the written submissions furnished by him to this Court. In hiswritten submissions dated 10.08.2022, he has mainly stated as under:-

“That the respondent no. 1 (Rajendra Prasad Bhargava) isfiling this Written Notes as per this Hon’ble Court’s OrderDated:08.08.2022 seeking that the judgment and final orderdated: 15.12.2021 of the Hon’ble High Court of MadhyaPradesh, Bench at Indore in Writ Appeal No. 485/2017 kindlybe upheld whereby the writ petition of Respondent No. 1 wasmaintainable.

That the Respondent No. 1 was working in St. Mary’s Hr. Sec.School, Mhow (M.P.) run by the appellant namely St. Mary’sEducation Society, serving as LDC since July 1, 1987. That,the respondent no. 1 has performed his duty honestly, diligently,

allegiance (loyalty) and with hard work during his 27 yearsof service and there is no adverse remark in his Service Bookand Annual Confidential Roll. That, as far as the respondentno. 1 has knowledge and information, on the basis of thatthe respondent no. 1 humbly prays to this Court that:

I) Mandamus is very wide remedy which must be availableto reach injustice wherever it is found. Technicalities shouldnot come in the way of granting that relief under Article 226.

“A word is said to be mandatory as well as defining in naturewhen the word MUST is used in meaning of that word.”

As the word “MUST” is used in the aforesaid statement aboutthe mandamus by this Hon’ble Court, the mandamus becomesmandatory as well as defining in nature. Hence it is provedthat mandamus is very wide remedy which must be easilyavailable to reach injustice wherever it is found. TechnicalitiesDshould not come in the way of granting that relief under Article226.

I (Respondent No. 1), therefore, humbly pray to this Hon’bleSupreme Court that kindly reject the contention urged by theappellant on the maintainability of the writ petition and toEkindly upheld the Impugned judgment and final order dated:15.12.2021 rightly and legally held by the Hon’ble High Courtof Madhya Pradesh, Bench at Indore in Writ Appeal No. 485of 2017.

1. Kindly read page No. 2 and 3 of Reply to the SLP.

FOR

Kindly read page No. 76 and 77 of Reply to the SLP (AnnexureR-2 Ramesh Ahluwalia case reported in (2012) 12 SCC 331).

2. Kindly read Para 20 on page No. 89, Para 21 on page No.89-90 and Para 22 on page No. 90 of Reply to the SLPG(Annexure R-3 Andi Mukta case reported in 1989 AIR 1607)(1989) 2 SCC 691

3. Kindly read page No. 6 and 7 of Reply to the SLP.

Kindly read Para 15 on page No. 97, 98 and 99 of Reply tothe SLP (Annexure R-4 Marwari Balika Vidhyalya Casereported in (2020) 14 SCC 449.

4. Kindly read page No. 49 of SLP (Annexure P-5 YogendraSingh Dhakad versus Delhi Public School Society, 2014 SCCOnline MP 162: AIR 2014 (NOC 580) 211.”

22. In his written submissions, the respondent No. 1 has alsorequested this Court to consider the following social circumstances:-

“i)That, my youngest son Ashwin Bhargava is suffering fromCancer of Nasopharanx (Rare type of Head and NoseCancer) and I’m facing severe financial difficulties in hismedical treatment.

ii)That, my wife Smt. Sunita Bhargava, 53 years has beenoperated upon for Carnio Vertebral Junction Anamoly on25.12.2021. She has been discharged on 02.01.2022 and stillcompletely on bed. Her medication is still going on throughphysiotherapy and regular follow up for future periodicevaluation. For her operation I’ve taken loan of Rupees350000/- from friend which has put more financial burdenon me. I’ve to attend her throughout the day and night aswell.

iii)That, apart from this, I’m suffering from Cataract Diseasein left eye.

iv) That, I’m also suffering from Knee Pain problem in theright leg.”

23. He has prayed for the following reliefs:-

“Humble Prayer to this Court in the interest of Justice:

1. That, I (Respondent No. 1), therefore, humbly pray to thisCourt that kindly reject the contention urged by the appellanton the maintainability of the writ petition and to kindly upheldthe Impugned Judgment and final order dated:15.12.2021rightly and legally held by the High Court of MadhyaPradesh, Bench at Indore in Writ Appeal No. 485 of 2017.

2. That, the impugned order dated 23.09.2016 passed by theappellant, being illegal, improper and inoperative, may kindlybe set aside;

3. That, the termination order dated 08.05.2015 passed bythe disciplinary authority may kindly be set aside;

4. That, necessary orders may kindly be passed for reinstatingthe Respondent no. 1 at his original post with all consequentialbenefits and back wages;

5. Any other relief, which this Court may consider necessaryin the interest of justice, may also be granted in favor of theRespondent no. 1.”

24. Later in point of time, the respondent No. 1 filed additionalwritten submissions dated 11.08.2022, wherein the following has beenCstated:-

“1. That, when Respondent no. 1 was appointed in the saidinstitution (St. Mary’s Hr. Sec. School), the said institutionwas affiliated to the M.P. Board (State Board). At that time theschool was also in receipt of the Grant-in-Aid from the StateDGovernment of M.P.

2. That, whilst the respondent no. 1 was appointed on01.07.1987 but the Service Conditions and Guidelines forthe Teachers was for the first time given on 26.07.2013 bythe school to the respondent no. 1.

3. That, at the time of appointment of respondent no. 1 thesaid school was governed by the M.P. Ashaskiya SchoolViniyam Adhiniyam, 1975 – Which received the assent of thePresident on the 18[th] October, 1975 assetn first published inthe Madhya Pradesh for their better organization andFdevelopment and matters connected therewith or incidentalthereto.

4. Para 3 of Chapter II of the said Act reproduced below,

“Power of State Government to regulate school education.-On and from the commencement of this Act, the StateGGovernment may regulate education in all the schools in theState in accordance with the provisions of this Act and therules made thereunder.”

25. He has relied upon few judgments of this Court as noted aboveto fortify his submissions that the writ application filed before the learned

single Judge was maintainable and should have been entertained on itsown merits.

ANALYSIS

26. Having heard the learned counsel appearing for the appellantsand the respondent No. 1 in-person and also having considered thematerials on record, we now proceed to answer the two pivotal issuesreferred to above by us.

27. The respondent No. 1 herein has laid much emphasis on thefact that at the time of his appointment in the school, the same wasaffiliated to the Madhya Pradesh State Board. It is his case that at therelevant point of time the school used to receive the grant-in-aid fromthe State Government of Madhya Pradesh. Later in point of time, theschool came to be affiliated to the CBSE. The argument of the respondentNo. 1 seems to be that as the school is affiliated to the Central Board i.e.the CBSE, it falls within the ambit of “State” under Article 12 of theConstitution. The school is affiliated to the CBSE for the purpose ofimparting elementary education under the Right of Children to Free andCompulsory Education Act, 2009 (for short, “Act 2009”). As the appellantNo. 1 is engaged in imparting of education, it could be said to be performingpublic functions. To put it in other words, the appellant No. 1 could besaid to be performing public duty. Even if body performing public dutyis amenable to the writ jurisdiction, all its decisions are not subject tojudicial review. Only those decisions which have public element thereincan be judicially reviewed under the writ jurisdiction. If the actionchallenged does not have the public element, writ of mandamus cannotbe issued as the action could be said to be essentially of privatecharacter.

28. We may at the outset state that the CBSE is only societyregistered under the Societies Registration Act, 1860 and the schoolaffiliated to it is not creature of the statute and hence not statutorybody. The distinction between body created by the statute and bodygoverned in accordance with statute has been explained by this Courtin the Executive Committee of Vaish Degree College v. LakshimiNarain, (1976) 2 SCC 58, as follows:-

“It is, therefore, clear that there is well marked distinctionbetween body which is created by the statute and bodywhich after having come into existence is governed in

Aaccordance with the provisions of the statute. In other words,the position seems to be that the institution concerned mustowe its very existence to statute which would be thefountain-head of its powers. The question in such cases to beasked is, if there is no statute would the institution have anylegal existence. If the answer is in the negative, thenBundoubtedly it is statutory body, but if the institution has aseparate existence of its own without any reference to thestatute concerned but is merely governed by the statutoryprovisions it cannot be said to be statutory body.”

29. As stated above, the school is affiliated to the CBSE for theCsake of convenience, namely, for the purpose of recognition and syllabusor the courses of study and the provisions of the Act 2009 and the rulesframed thereunder.

30. The contention canvassed by the respondent No. 1 is that aWrit Petition is maintainable against the Committee of ManagementDcontrolling the affairs of an institution (minority) run by it, if it violatesany rules and byelaws laid down by the CBSE. First, as discussed above,the CBSE itself is not statutory body nor the regulations framed by ithas any statutory force. Secondly, the mere fact that the Board grantsrecognition to the institutions on certain terms and conditions itself doesEnot confer any enforceable right on any person as against the Committeeof Management.31. In Km. Regina v. St. Aloysins High Elementary Schooland another, (1972) 4 SCC 188 : AIR 1971 SC 1920, this Court heldthat the mere fact that an institution is recognised by an authority, doesFnot itself create an enforceable right to an aggrieved party against theManagement by teacher on the ground of breach or non-complianceof any of the Rules which was part of terms of the recognition. It wasobserved as under :-

“The Rules thus govern the terms on which the GovernmentGwould grant recognition and aid and the Government canenforce these rules upon the management. But the enforcementof such rules is matter between the Government and themanagement, and third party, such as teacher aggrieved bysome order of the management cannot derive from the rulesany enforceable right against the management on the groundHof breach or non-compliance of any of the rules.”

32. In Km. Anita Verma v. D.A.V. College ManagementCommittee, Unchahar, Rai Bareilly, (1992) 1 UPLBEC 30:-

“….30 where the services of teacher were terminated, theCourt held that the writ petition under Article 226is notmaintainable as the institution cannot be treated as theinstrumentality of the State. The matter was considered in detailin M/s. Habans Kaur v. Committee of Management, GuruTeghahadur Public School, Meerut and Anr., 1992 Labourand Industrial Cases 2070 (All), wherein the services of thepetitioner were terminated by the Managing Committee of theinstitution recognised by the C.B.S.E. It was held that theAffiliation Bye-laws framed by the C.B.S.E. has no statutoryforce. The Court under Article 226 of the Constitution of Indiacan enforce compliance of statutory provision against aCommittee of Management as held in Full Bench decisionof this Court in Aley Ahmad Abdi v. District Inspector ofSchools, Allahabad and Ors., AIR 1977 All. 539. TheAffiliation Bye-laws of C.B.S.E. having no statutory force,the only remedy against the aggrieved person is to approachC.B.S.E. putting his grievances in relation to the violation ofthe Affiliation Bye-laws by the institution.”

33. Thus, where teacher or non-teaching staff challenges actionof Committee of Management that it has violated the terms of contractor the rules of the Affiliation Byelaws, the appropriate remedy of suchteacher or employee is to approach the CBSE or to take such other legalremedy available under law. It is open to the CBSE to take appropriateaction against the Committee of Management of the institution forwithdrawal of recognition in case it finds that the Committee ofManagement has not performed its duties in accordance with theAffiliation Byelaws.

34. It needs no elaboration to state that school affiliated to theCBSE which is unaided is not State within Article 12 of the Constitutionof India [See : Satimbla Sharma v. St. Pauls Senior Secondary School[(2011) 13 SCC 760]. Nevertheless the school discharges public dutyof imparting education which is fundamental right of the citizen [See :K. Krishnamacharyulu v. Sri Venkateshwara Hindu College ofEngineering, (1997) 3 SCC 571]. The school affiliated to the CBSE istherefore an “authority” amenable to the jurisdiction under Article 226

ABC

Aof the Constitution of India [See : Binny Ltd. and another v. V.Sadasivan and others, (2005) 6 SCC 657]. However, judicial reviewof the action challenged by party can be had by resort to the writjurisdiction only if there is public law element and not to enforce acontract of personal service. contract of personal service includes allmatters relating to the service of the employee – confirmation, suspension,Btransfer, termination, etc. [See : Apollo Tyres Ltd. v. C.P. Sebastian,(2009) 14 SCC 360].

35. This Court in the case of K.K. Saksena v. InternationalCommission on Irrigation and Drainage and others, (2015) 4 SCC670, after an exhaustive review of its earlier decisions on the subject,Cheld as follows:-

“43. What follows from minute and careful reading of theaforesaid judgments of this Court is that if person orauthority is ‘State’ within the meaning of Article 12of theConstitution, admittedly writ petition under ArticleD226would lie against such person or body. However, wemay add that even in such cases writ would not lie to enforceprivate law rights. There are catena of judgments on thisaspect and it is not necessary to refer to those judgments asthat is the basic principle of judicial review of an action underEthe administrative law. Reason is obvious. Private law is thatpart of legal system which is part of Common Law thatinvolves relationships between individuals, such as law ofcontract or torts. Therefore, even if writ petition would bemaintainable against an authority, which is ‘State’under Article 12 of the Constitution, before issuing any writ,Fparticularly writ of mandamus, the Court has to satisfy thataction of such an authority, which is challenged, is in thedomain of public law as distinguished from private law.

52. It is trite that contract of personal service cannot beenforced. There are three exceptions to this rule, namely:

(i) when the employee is public servant working under theUnion of India or State;

(ii) when such an employee is employed by an authority/ bodywhich is State within the meaning of Article 12 of theConstitution of India; and

(ii) when such an employee is ‘workmen’ within the meaningof Section 2(s)of the Industrial Disputes Act, 1947 and raisesa dispute regarding his termination by invoking the machineryunder the said Act.

In the first two cases, the employment ceases to have privatelaw character and ‘status’ to such an employment is attached.In the third category of cases, it is the Industrial DisputesAct which confers jurisdiction on the labour court/industrialtribunal to grant reinstatement in case termination is foundto be illegal.”

36. The following decisions have been adverted to in K.K.Saksena (supra):-

1.Shri Anadi Mukta Sadguru Shree Muktajee VandasjiswamiSuvarna Jayanti Mahotsav Smarak Trust & Ors. v. V.R.Rudani & Ors.(1989) 2 SCC 691

2. G. Bassi Reddy v. International Crops Research Institute& Anr., (2003) 4 SCC 225

3.Praga Tools Corporation v. Shri C.A. Imanual, (1969) 1SCC 585

4. Federal Bank Ltd. v. Sagar Thomas, (2003) 10 SCC 733

37. This Court in Janet Jeyapaul v. SRM University & Ors.,reported in 2015 (13) SCALE 622, held that when private bodyexercises its public functions even if it is not State, the aggrieved personhas remedy, not only under the ordinary law, but also by way of writpetition under Article 226of the Constitution. In the case of Binny Ltd.(supra), this Court held that the Article 226of the Constitution is couchedin such way that writ of mandamus could be issued even against aprivate authority. However, such private authority must be discharging apublic function and that the decision sought to be corrected or enforcedmust be in the discharge of public function.

38. Paragraph 11 of the judgment in Binny Ltd. (supra) isreproduced below:-

A“Judicial review is designed to prevent the cases of abuse ofpower and neglect of duty by public authorities. However,under our Constitution, Article 226 is couched in such waythat writ of mandamus could be issued even against privateauthority. However, such private authority must bedischarging public function and that the decision sought toBbe corrected or enforced must be in discharge of publicfunction.The role of the State expanded enormously andattempts have been made to create various agencies to performthe governmental functions. Several corporations andcompanies have also been formed by the government to runCindustries and to carry on trading activities. These have cometo be known as Public Sector Undertakings. However, in theinterpretation given to Article 12of the Constitution, this Courttook the view that many of these companies and corporationscould come within the sweep of Article 12 of the Constitution.At the same time, there are private bodies also which may beDdischarging public functions. It is difficult to draw linebetween the public functions and private functions when it isbeing discharged by purely private authority. body isperforming “public function” when it seeks to achieve somecollective benefit for the public or section of the public andEis accepted by the public or that section of the public as havingauthority to do so. Bodies therefore exercise public functionswhen they intervene or participate in social or economicaffairs in the public interest….” (Emphasis supplied)

39. This Court considered various of its other decisions to examineFthe question of public law remedy under Article 226 of the Constitution.This Court observed in Binny Ltd. (supra) as under:-

“29. Thus, it can be seen that writ of mandamus or theremedy under Article 226is pre-eminently public law remedyand is not generally available as remedy against privateGwrongs. It is used for enforcement of various rights of thepublic or to compel the public/statutory authorities todischarge their duties and to act within their bounds. It maybe used to do justice when there is wrongful exercise of poweror refusal to perform duties. This writ is admirably equippedto serve as judicial control over administrative actions. This

writ could also be issued against any private body or person,specially in view of the words used in Article 226 of theConstitution. However, the scope of mandamus is limited toenforcement of public duty. The scope of mandamus isdetermined by the nature of the duty to be enforced, ratherthan the identity of the authority against whom it is sought. Ifthe private body is discharging public function and the denialof any right is in connection with the public duty imposed onsuch body, the public law remedy can be enforced. The dutycast on the public body may be either statutory or otherwiseand the source of such power is immaterial, but, nevertheless,there must be the public law element in such action.Sometimes,it is difficult to distinguish between public law and privatelaw remedies.”

(Emphasis supplied)

40. In the penultimate para, this Court ruled as under:-

“32. Applying these principles, it can very well be said that awrit of mandamus can be issued against private body whichis not State within the meaning of Article 12 of theConstitution and such body is amenable to the jurisdictionunder Article 226of the Constitution and the High Courtunder Article 226 of the Constitution can exercise judicialreview of the action challenged by party. But there must bea public law element and it cannot be exercised to enforcepurely private contracts entered into between the parties.”

(Emphasis supplied)

41. In the background of the above legal position, it can be safelyconcluded that power of judicial review under Article 226 of theConstitution of India can be exercised by the High Court even if thebody against which an action is sought is not State or an Authority or anInstrumentality of the State but there must be public element in theaction complained of.

42. reading of the above extract shows that the decision soughtto be corrected or enforced must be in the discharge of public function.No doubt, the aims and objective of the appellant No. 1 herein is toimpart education, which is public function. However, the issue herein

Ais with regard to the termination of service of the respondent No. 1,which is basically service contract. body is said to be performing apublic function when it seeks to achieve some collective benefit for thepublic or section of the public and is accepted by the public or thatsection of the public as having authority to do so.B43. In the case of Committee of Management, Delhi PublicSchool & Anr. v. M.K. Gandhi, reported in (2015) 17 SCC 353, thisCourt held that no writ is maintainable against private school as it is nota “State” within the meaning of Article 12of the Constitution of India.

44. In the case of Trigun Chand Thakur v. State of Bihar &COrs., reported in (2019) 7 SCC 513, this Court upheld the view of aDivision Bench of the Patna High Court which held that teacher ofprivately managed school, even though financially aided by the StateGovernment or the Board, cannot maintain writ petition against anorder of termination from service passed by the Management.

D45. In the case of Satimbla Sharma (supra), this Court held thatthe unaided private minority schools over which the Government has noadministrative control because of their autonomy under Article 30(1)ofthe Constitution are not “State” within the meaning of Article 12of theConstitution. As the right to equality under Article 14 of the Constitutionis available against the State, it cannot be claimed against unaided privateEminority private schools.

46. The Full Bench of the Allahabad High Court in the case ofRoychan Abraham v. State of U.P., AIR 2019 All 96, after taking intoconsideration various decisions of this Court, held as under:-

F“38. Even if it be assumed that an educational institution isimparting public duty, the act complained of must have directnexus with the discharge of public duty.It is undisputedly apublic law action which confers right upon the aggrievedto invoke extraordinary writ jurisdiction under Article 226fora prerogative writ. Individual wrongs or breach of mutualGcontracts without having any public element as its integralpart cannot be rectified through petition under Article226.Wherever Courts have intervened in exercise ofjurisdiction under Article 226, either the service conditionswere regulated by statutory provisions or the employer hadthe status of ‘State’ within the expansive definitionH

under Article 12or it was found that the action complainedof has public law element.”

(Emphasis supplied)

47. We may refer to and rely upon one order passed by this Courtin the case of S.K. Varshney v. Principal, Our Lady of Fatima H.S.S.,in the Civil Appeal Nos. 8783-8784 of 2003 dated July 19, 2007, in whichthe dispute was one relating to the retirement age of teacher workingin an unaided institution. This Court, while dismissing the appeal preferredby the employee, held as under:-

“Both the petitions were dismissed by the learned singleJudge on the ground that no writ would lie against unaidedprivate institutions and the writ petitions were notmaintainable.

Aggrieved thereby, writ appeals have been filed before theDivision Bench without any result. The Division Bench heldthat the writ petitions are not maintainable against privateinstitute. Aggrieved thereby, these appeals have been filed.

Counsel for the appellant relied on decision rendered bythis Court in K. Krishnamacharyulu & Ors. Vs. SriVenkateswara Hindu College of Engineering & Anr., (1997)3 SCC 571. He particularly relied on the observation madeby this Court in paragraph 4 of the order that when an elementof public interest is created and the institution is catering tothat element, the teacher, being the arm of the institution, isalso entitled to avail of the remedy provided under Article226.

This Court in Sushmita Basu & Ors. Vs. Ballygunge SikshaSamity & Ors., (2006) 7 SCC 680 in which one of us (Sema,J.) is party, after considering the aforesaid judgment hasdistinguished the ratio by holding that the writ under Article226 of the Constitution against private educational institutewould be justified only if public law element is involvedand if it is only private law remedy no writ petition wouldlie.In the present cases, there is no question of public lawelement involved inasmuch as the grievances of the appellantsare of personal nature. We, accordingly, hold that writ petitions

332SUPREME COURT REPORTS

are not maintainable against the private institute. There is noinfirmity in the order passed by the learned single Judge andaffirmed by the Division Bench. These appeals are devoid ofmerit and are, accordingly, dismissed. No costs.”

(Emphasis supplied)

48. We may also refer to and rely upon the decision of this Courtin the case of Vidya Ram Misra v. The Managing Committee ShriJai Narain College, (1972) 1 SCC 623: AIR 1972 SC 1450. Theappellant therein filed writ petition before the Lucknow Bench of theHigh Court of Allahabad challenging the validity of resolution passedCby the Managing Committee of Shri Jai Narain College, Lucknow, anassociated college of the Lucknow University, terminating his servicesand praying for issue of an appropriate writ or order quashing theresolution. learned single Judge of the High Court finding that interminating the services, the Managing Committee acted in violation ofthe principles of natural justice, quashed the resolution and allowed theDwrit petition. The Managing Committee appealed against the order. ADivision Bench of the High Court found that the relationship betweenthe college and the appellant therein was that of master and servant andthat even if the service of the appellant had been terminated in breach ofthe audi alteram partem rule of natural justice, the remedy of the appellantEwas to file suit for damages and not to apply under Article 226 of theConstitution for writ or order in the nature of certiorari and that, infact, no principle of natural justice was violated by terminating the servicesof the appellant. The writ petition was dismissed. In appeal, this Courtupheld the decision of the High Court holding that the Lecturer cannothave any cause of action on breach of the law but only on breach of theFcontract, hence he has remedy only by way of suit for damages andnot by way of writ under Article 226 of the Constitution. In Vidya RamMisra (supra), this Court observed thus:

“12. Whereas in the case of Prabhakar Ramakrishna Jody v.A.L. Pande (1965) 2 SCR 713, the terms and conditions ofGservice embodies in Clause 8(vi)(a) of the ‘College Code’ hadthe force of law apart from the contract and conferred rightson the appellant there, here the terms and conditions mentionedin Statute 151 have no efficacy, unless they are incorporatedin contract. Therefore, appellant cannot found cause ofHaction on any breach of the law but only on the breach of the

contract. As already indicated, Statute 151 does not lay downany procedure for removal of teacher to be incorporated inthe contract. So, Clause 5 of the contract can, in no event,have even statutory flavour and for its breach, the appellant’sremedy lay elsewhere.

13. Besides, in order that the third exception to the generalrule that no writ will lie to quash an order terminating acontract of service, albeit illegally, as stated in S.R Tewari v.District Board, Agra, (1964) 3 SCR 55 : AIR 1964 SC 1680,might apply, it is necessary that the order must be the order ofa statutory body acting in breach of mandatory obligationimposed by statute. The college, or the Managing Committeein question, is not statutory body and so the argument ofMr. Setalvad that the case in hand will fall under the thirdexception cannot be accepted. The contention of counsel thatthis Court has sub-silentio sanctioned the issue of writ underArticle 226 to quash an order terminating services of teacherpassed by college similarly situate in PrabhakarRamakrishna Jodh (supra), and, therefore, the fact that thecollege or the Managing Committee was not statutory bodywas no hindrance to the High Court issuing the writ prayedfor by the appellant has no merit as this Court expressly statedin the judgment that no such contention was raised in theHigh Court and so it cannot be allowed to be raised in thisCourt.”

49. In the case on hand, the facts are similar. Rule 26(1) of theAffiliation Byelaws, framed by the CBSE, provides that each schoolaffiliated with the Board shall frame Service Rules. Sub-rule (2) of itprovides that service contract will be entered with each employee asper the provision in the Education Act of the State/U.T. or as given inthe Appendix III, if not obligatory as per the State Education Act. Theserules also provide procedures for appointments, probation, confirmation,recruitment, attendance representations, grant of leave, code of conduct,disciplinary procedure, penalties, etc. The model form of contract ofservice, to be executed by an employee, given in Appendix III, laysdown that the service, under this agreement, will be liable to disciplinaryaction in accordance with the Rules and Regulations framed by the schoolfrom time to time. Only in case where the post is abolished or an employee

Aintends to resign, Rule 31 of Affiliation Byelaws of the Board will apply.It may be noted that the above byelaws do not provide for any particularprocedure for dismissal or removal of teacher for being incorporatedin the contract. Nor does the model form of contract given in the AppendixIII lays down any particular procedure for that purpose. On the contrary,the disciplinary action is to be taken in accordance with the Rules andBRegulations framed by the school from time to time.

50. On plain reading of these provisions, it becomes clear thatthe terms and conditions mentioned in the Affiliation Byelaws may beincorporated in the contract to be entered into between the school andthe employee concerned. It does not say that the terms and conditionsChave any legal force, until and unless they are embodied in an agreement.To put it in other words, the terms and conditions of service mentioned inthe Chapter VII of the Affiliation Byelaws have no force of law. Theybecome terms and conditions of service only by virtue of their beingincorporated in the contract. Without the contract they have no vitalityDand can confer no legal rights. The terms and conditions mentioned inthe Affiliation Byelaws have no efficacy, unless they are incorporated ina contract. In the absence of any statutory provisions governing theservices of the employees of the school, the service of the respondentno. 1 was purely contractual. contract of personal service cannot beenforced specifically. Therefore, the respondent no. 1 cannot find causeEof action on any breach of the law, but only on the breach of the contract.That being so, the appellant’s remedy lies elsewhere and in no case thewrit is maintainable.

51. Thus, the aforesaid order passed by this Court makes it veryclear that in case of retirement and in case of termination, no publicFlaw element is involved. This Court has held that writ under Article226 of the Constitution against private educational institution shall bemaintainable only if public law element is involved and if there is nopublic law element is involved, no writ lies.

52. In T.M.A. Pai Foundation v. State of Karnataka, (2002) 8GSCC 481, an eleven-Judge Bench of this Court formulated certain pointsin fact to reconsider its earlier decision in the case of Ahmedabad St.Xavier’s College Society v. State of Gujarat, (1974) 1 SCC 717, andalso the case of Unnikrishnan P.J. v. State of A.P., reported in (1993)4 SCC 111, regarding the “right of the minority institution includingHadministration of the student and imparting education vis-à-vis the right

of administration of the non-minority student”. In the said case, veryimportant points arose as follows:-

“5. (c) Whether the statutory provisions which regulate thefacets of administration like control over educationalagencies, control over governing bodies, conditions ofaffiliation including recognition/withdrawal thereof, andappointment of staff, employees, teachers and principalsincluding their service conditions and regulation of fees etc.would interfere with the right of administration of minorities?

A. So far as the statutory provisions regulating the facets ofadministration are concerned, in case of an unaided minorityeducational institution, the regulatory measure of controlshould be minimal and the conditions of recognition as wellas conditions of affiliation to university or board have tobe complied with, but in the matter of day-to-day management,like appointment of staff, teaching and non-teaching andadministrative control over them, the management should havethe freedom and there should not be any external controllingagency. However, rational procedure for selection ofteaching staff and for taking disciplinary action has to beevolved by the management itself. For redressing thegrievances of such employees who are subjected to punishmentor termination from service, mechanism will have to beevolved and in our opinion, appropriate tribunals could beconstituted, and till then, such tribunal could be presided overby judicial officer of the rank of District Judge. The Stateor other controlling authorities, however, can always prescribethe minimum qualifications, salaries, experience and otherconditions bearing on the merit of an individual for beingappointed as teacher of an educational institution.

Regulations can be framed governing service conditions forteaching and other staff for whom aid is provided by the Statewithout interfering with overall administrative control ofmanagement over the staff, government/ universityrepresentative can be associated with the Selection Committeeand the guidelines for selection can be laid down. In regardto unaided minority educational institutions such regulations,which will ensure check over unfair practices and generalwelfare of teachers could be framed.”

DEF

A53. We now procced to look into the two decisions of this Court inthe cases of Ramesh Ahluwalia (supra) and Marwari BalikaVidhyalaya (supra) resply.

54. In Ramesh Ahluwalia (supra), the appellant therein wasworking as an administrative officer in privately run educationalBinstitution and by way of disciplinary proceedings, was removed fromservice by the managing committee of the said educational institution. Awrit petition was filed before the learned single Judge of the High Courtchallenging the order of the disciplinary authority wherein he was removedfrom service. The writ petition was ordered to be dismissed in limineholding that the said educational institution being an unaided and privateCschool managed by the society cannot be said to be an instrument of theState. The appeal before the Division Bench also came to be dismissed.The matter travelled to this Court. The principal argument before thisCourt was in regard to the maintainability of the writ petition against aprivate educational institution. It was argued on the behalf of the appellantDtherein that although private educational institution may not fall withinthe definition of “State” or “other authorities/ instrumentalities” of theState under Article 12 of the Constitution, yet writ petition would bemaintainable as the said educational institution could be said to bedischarging public functions by imparting education. However, the learnedcounsel for the educational institution therein took plea before thisECourt that while considering whether body falling with the definition of“State”, it is necessary to consider whether such body is financially,functionally and administratively dominated by or under the control ofthe government. It was further argued that if the control is merelyregulatory either under statute or otherwise, it would not ipso factoFmake the body “State” within Article 12 of the Constitution. On theconspectus of the peculiar facts of the case and the submissionsadvanced, this Court held that writ petition would be maintainable if aprivate educational institution discharges public functions, moreparticularly imparting education. Even by holding so, this Court declinedto extend any benefits to the teacher as the case involved disputedGquestions of fact.

55. We take notice of the fact that in Ramesh Ahluwalia (supra)the attention of the Hon’ble Judges was not drawn to the earlier decisionsof this Court in K. Krishnamacharyulu (supra), Federal Bank (supra),Sushmita Basu v. Ballygunge Siksha Samity, (2006) 7 SCC 680, andH

Committee of Management, Delhi Public School v. M.K. Gandhi(supra).

56. In Marwari Balika Vidhyalaya (supra), this Court followedRamesh Ahluwalia (supra) referred to above.

57. We may say without any hesitation that the respondent No. 1herein cannot press into service the dictum as laid down by this Court inthe case of Marwari Balika Vidhyalaya (supra) as the said case isdistinguishable. The most important distinguishing feature of the case ofMarwari Balika Vidhyalaya (supra) is that in the said case the removalof the teacher from service was subject to the approval of the StateGovernment. The State Government took specific stance before thisCourt that its approval was required both for the appointment as well asremoval of the teacher. In the case on hand, indisputably the governmentor any other agency of the government has no role to play in thetermination of the respondent No. 1 herein.58. In context with Marwari Balika Vidhyalaya (supra), weremind ourselves of the Byelaw 49(2) which provides that no order withregard to the imposition of major penalty shall be made by the disciplinaryauthority except after the receipt of the approval of the disciplinarycommittee. Thus unlike Marwari Balika Vidhyalaya (supra) whereapproval was required of the State Government, in the case on hand theapproval is to be obtained from the disciplinary committee of the institution.This distinguishing feature seems to have been overlooked by the HighCourt while passing the impugned order.

59. In Marwari Balika Vidhyalaya (supra), the school wasreceiving grant-in-aid to the extent of dearness allowance. Theappointment and the removal, as noted above, is required to be approvedby the District Inspector of School (Primary Education) and, if any actionis taken dehors such mandatory provisions, the same would not comewithin the realm of private element.

60. In Trigun Chand Thakur (supra),the appellant therein wasappointed as Sanskrit teacher and show cause notice was issuedupon him on the ground that he was absent on the eve of theIndependence day and the Teachers day which resulted into dismissalorder passed by the Managing Committee of the private school. Thechallenge was made by filing writ petition before the High Court whichwas dismissed on the ground that the writ petition is not maintainable

Aagainst an order terminating the service by the Managing Committee ofthe private school. This Court held that even if the private school wasreceiving financial aid from the Government, it does not make the saidManaging Committee of the school “State” within the meaning of Article12of the Constitution of India.B61. Merely because writ petition can be maintained against theprivate individuals discharging the public duties and/or public functions,the same should not be entertained if the enforcement is sought to besecured under the realm of private law. It would not be safe to say thatthe moment the private institution is amenable to writ jurisdiction thenevery dispute concerning the said private institution is amenable to writCjurisdiction. It largely depends upon the nature of the dispute and theenforcement of the right by an individual against such institution. Theright which purely originates from private law cannot be enforcedtaking aid of the writ jurisdiction irrespective of the fact that suchinstitution is discharging the public duties and/or public functions. TheDscope of the mandamus is basically limited to an enforcement of thepublic duty and, therefore, it is an ardent duty of the court to find outwhether the nature of the duty comes within the peripheral of the publicduty. There must be public law element in any action.

62. Our present judgment would remain incomplete if we fail toErefer to the decision of this Court in the case of Ramakrishnan Missionv. Kago Kunya, (2019) 16 SCC 303. In the said case this Courtconsidered all its earlier judgments on the issue. The writ petition wasnot found maintainable against the Mission merely for the reason that itwas found running hospital, thus discharging public functions/publicduty. This Court considered the issue in reference to the element ofFpublic function which should be akin to the work performed by the Statein its sovereign capacity. This Court took the view that every publicfunction/public duty would not make writ petition to be maintainableagainst an “authority” or “person” referred under Article 226 of theConstitution of India unless the functions are such which are akin to theGfunctions of the State or are sovereign in nature. Few relevant paragraphsof the said judgment are quoted as under for ready reference:-

“17. The basic issue before this Court is whether the functionsperformed by the hospital are public functions, on the basisof which writ of mandamus can lie under Article 226 of theConstitution.H

18. The hospital is branch of the Ramakrishna Mission andis subject to its control. The Mission was established by SwamiVivekanand, the foremost disciple of Shri RamakrishnaParamhansa. Service to humanity is for the organisation co-equal with service to God as is reflected in the motto “AtmanoMokshartham Jagad Hitaya Cha”. The main object of theRamakrishna Mission is to impart knowledge in and promotethe study of Vedanta and its principles propounded by Shri.Ramakrishna Paramahansa and practically illustrated by hisown life and of comparative theology in its widest form. Itsobjects include, inter alia to establish, maintain, carry onand assist schools, colleges, universities, research institutions,libraries, hospitals and take up development and generalwelfare activities for the benefit of the underprivileged/backward/tribal people of society without any discrimination.These activities are voluntary, charitable and non-profitmaking in nature. The activities undertaken by the Mission, anon-profit entity are not closely related to those performedby the State in its sovereign capacity nor do they partake ofthe nature of public duty.

19. The Governing Body of the Mission is constituted bymembers of the Board of Trustees of Ramakrishna Math andis vested with the power and authority to manage theorganisation. The properties and funds of the Mission and itsmanagement vest in the Governing Body. Any person canbecome member of the Mission if elected by the GoverningBody. Members on roll form the quorum of the annual generalmeetings. The Managing Committee comprises of membersappointed by the Governing Body for managing the affairsof the Mission. Under the Memorandum of Association andRules and Regulations of the Mission, there is no governmentalcontrol in the functioning, administration and day to daymanagement of the Mission. The conditions of service of theemployees of the hospital are governed by service rules whichare framed by the Mission without the intervention of anygovernmental body.

20. In coming to the conclusion that the appellants fell withinthe description of an authority under Article 226, the High

ACourt placed considerable degree of reliance on thejudgment of two-Judge Bench of this Court in Andi Mukta[Andi Mukta Sadguru Shree Muktajee Vandas Swami SuvarnaJayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC691]. Andi Mukta [Andi Mukta Sadguru Shree MuktajeeVandas Swami Suvarna Jayanti Mahotsav Smarak Trust v.BV.R. Rudani, (1989) 2 SCC 691] was case where publictrust was running college which was affiliated to GujaratUniversity, body governed by the State legislation. Theteachers of the University and all its affiliated colleges weregoverned, insofar as their pay scales were concerned, by theCrecommendations of the University Grants Commission. Adispute over pay scales raised by the association representingthe teachers of the University had been the subject-matter ofan award of the Chancellor, which was accepted by thegovernment as well as by the University. The management ofthe college, in question, decided to close it down without priorDapproval. writ petition was instituted before the High Courtfor the enforcement of the right of the teachers to receivetheir salaries and terminal benefits in accordance with thegoverning provisions. In that context, this Court dealt withthe issue as to whether the management of the college wasEamenable to the writ jurisdiction. number of circumstancesweighed in the ultimate decision of this Court, including thefollowing:

20.1. The trust was managing an affiliated college.

20.2. The college was in receipt of government aid.

20.3. The aid of the government played major role in thecontrol, management and work of the educationalinstitution.

20.4. Aided institutions, in similar manner as governmentGinstitutions, discharge public function of impartingeducation to students.

20.5. All aided institutions are governed by the rules andregulations of the affiliating University.

20.6. Their activities are closely supervised by theHUniversity.

20.7. Employment in such institutions is hence, not devoidof public character and is governed by the decisionstaken by the University which are binding on themanagement.

21. It was in the above circumstances that this Court came tothe conclusion that the service conditions of the academicstaff do not partake of private character, but are governedby right-duty relationship between the staff and themanagement. breach of the duty, it was held, would beamenable to the remedy of writ of mandamus. While theCourt recognised that “the fast expanding maze of bodiesaffecting rights of people cannot be put into watertightcompartments”, it laid down two exceptions where the remedyof mandamus would not be available : (SCC p. 698, para 15)

“15. If the rights are purely of private character nomandamus can issue. If the management of the college ispurely private body with no public duty mandamus willnot lie. These are two exceptions to mandamus.”

22. Following the decision in Andi Mukta [Andi MuktaSadguru Shree Muktajee Vandas Swami Suvarna JayantiMahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691],this Court has had the occasion to re-visit the underlyingprinciples in successive decisions. This has led to the evolutionof principles to determine what constitutes “public duty”and “public function” and whether the writ of mandamuswould be available to an individual who seeks to enforce herright.

25. similar view was taken in Ramesh Ahluwalia v. State ofPunjab [Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC331 : (2013) 3 SCC (L&S) 456 : 4 SCEC 715], where two-Judge Bench of this Court held that private body can beheld to be amenable to the jurisdiction of the High Courtunder Article 226 when it performs public functions whichare normally expected to be performed by the State or itsauthorities.

26. In Federal Bank Ltd. v. Sagar Thomas [Federal BankLtd. v. Sagar Thomas, (2003) 10 SCC 733], this Court

Aanalysed the earlier judgments of this Court and provided aclassification of entities against whom writ petition may bemaintainable : (SCC p. 748, para 18)

“18. From the decisions referred to above, the positionthat emerges is that writ petition under Article 226 of theBConstitution of India may be maintainable against (i) theState (Government); (ii) an authority; (iii) statutory body;(iv) an instrumentality or agency of the State; (v) companywhich is financed and owned by the State; (vi) privatebody run substantially on State funding; (vii) private bodydischarging public duty or positive obligation of publicCnature; and (viii) person or body under liability todischarge any function under any statute, to compel it toperform such statutory function.”

63. The aforesaid decision of this Court in Ramakrishnan Mission(supra) came to be considered exhaustively by Full Bench of the HighDCourt of Allahabad in the case of Uttam Chand Rawat v. State of U.P.,reported in (2021) 6 All LJ 393 (FB), wherein the Full Bench was calledupon to answer the following question:-

“(i) Whether the element of public function and public dutyinherent in the enterprise that an educational institutionEundertakes, conditions of service of teachers, whose functionsare sine qua non to the discharge of that public function orduty, can be regarded as governed by the private law ofcontract and with no remedy available under Article 226 ofthe Constitution?”

F64. The Full Bench proceeded to answer the aforesaid questionas under:-

“16. The substance of the discussion made above is that awrit petition would be maintainable against the authority orthe person which may be private body, if it discharges publicGfunction/public duty, which is otherwise primary function ofthe State referred in the judgment of the Apex Court in thecase of Ramakrishnan Mission (supra) and the issue underpublic law is involved. The aforesaid twin test has to besatisfied for entertaining writ petition under Article 226ofthe Constitution of India.

17. From the discussion aforesaid and in the light of thejudgments referred above, writ petition under Article 226 ofthe Constitution would be maintainable against (i) theGovernment; (ii) an authority; (iii) statutory body; (iv) aninstrumentality or agency of the State; (v) company whichis financed and owned by the State; (vi) private body runsubstantially on State funding; (vii) private bodydischarging public duty or positive obligation of public nature;and (viii) person or body under liability to discharge anyfunction under any statute, to compel it to perform such astatutory function.

18. There is thin line between “public functions” and “privatefunctions” discharged by person or private body/authority.The writ petition would be maintainable only after determiningthe nature of the duty to be enforced by the body or authorityrather than identifying the authority against whom it is sought.

19. It is also that even if person or authority is dischargingpublic function or public duty, the writ petition would bemaintainable under Article 226 of the Constitution, if Courtis satisfied that action under challenge falls in the domain ofpublic law, as distinguished from private law. The twin testsfor maintainability of writ are as follows :

1. The person or authority is discharging public duty/publicfunctions.

2. Their action under challenge falls in domain of publiclaw and not under common law.

20. The writ petition would not be maintainable against anauthority or person merely for the reason that it has beencreated under the statute or is to governed by regulatoryprovisions. It would not even in case where aid is receivedunless it is substantial in nature. The control of the State isanother issue to hold writ petition to be maintainable againstan authority or person.”

(Emphasis supplied)

65. We owe duty to consider one relevant aspect of the matter.Although this aspect which we want to take notice of has not been

Ahighlighted by the respondent No.1, yet we must look into the same. Wehave referred to the CBSE Affiliation Byelaws in the earlier part of ourjudgment. Appendix-IV of the Affiliation Byelaws is with respect to theminority institutions. Clause 6 of Appendix-IV is with respect to thedisciplinary control over the staff in minority educational institution.We take notice of the fact that in Clause 6, the State has the regulatoryBpower to safeguard the interests of their employees and their serviceconditions including the procedure for punishment to be imposed. Forthe sake of convenience and at the cost of repetition, we quote Clause 6once again as under:“6. Disciplinary Control over Staff in Minority EducationalCInstitutions: While the managements should exercise thedisciplinary control over staff, it must be ensured that theyhold an inquiry and follow fair procedure before punishmentis given. With view to preventing the possible misuse of powerby the management of the Minority Educational Institutions,Dthe State has the regulatory power to safeguard the interestsof their employees and their service conditions includingprocedure for punishment to be imposed.”

(Emphasis supplied)

66. It could be argued that as the State has regulatory power toEsafeguard the interests of the employees serving with the minorityinstitutions, any action or decision taken by such institution is amenableto writ jurisdiction under Article 226 of the Constitution.

67. In the aforesaid context, we may only say that merely becausethe State Government has the regulatory power, the same, by itself,Fwould not confer any such status upon the institution (school) nor putany such obligations upon it which may be enforced through issue of aWrit under Article 226 of the Constitution. In this regard, we may referto and rely upon the decision of this Court in the case of Federal Bank(supra). While deciding whether private bank that is regulated by theGBanking Regulation Act, 1949 discharges any public function, this Courtheld thus:-

“33. ... in our view, private company carrying on bankingbusiness as scheduled bank, cannot be termed as aninstitution or company carrying on any statutory or publicduty. private body or person may be amenable to writH

jurisdiction only where it may become necessary to compelsuch body or association to enforce any statutory obligationsor such obligations of public nature casting positiveobligation upon it. We don’t find such conditions are fulfilledin respect of private company carrying on commercialactivity of banking. Merely regulatory provisions to ensuresuch activity carried on by private bodies work within adiscipline, do not confer any such status upon the companynor put any such obligation upon it which may be enforcedthrough issue of writ under Article 226 of the Constitution.Present is case of disciplinary action being taken againstits employee by the appellant Bank. The respondent’s servicewith the Bank stands terminated. The action of the Bank waschallenged by the respondent by filing writ petitionunder Article 226 of the Constitution of India. The respondentis not trying to enforce any statutory duty on the part of theBank.”

34. Thus, contracts of purely private nature would not besubject to writ jurisdiction merely by reason of the fact thatthey are structured by statutory provisions. The only exceptionto this principle arises in situation where the contract ofservice is governed or regulated by statutory provision.Hence, for instance, in K.K. Saksena [K.K. Saksena v.International Commissionon Irrigation & Drainage, (2015)4 SCC 670 : (2015) 2 SCC (Civ) 654 : (2015) 2 SCC (L&S)119] this Court held that when an employee is workmangoverned by the Industrial Disputes Act, 1947, it constitutesan exception to the general principle that contract ofpersonal service is not capable of being specifically enforcedor performed.

35. It is of relevance to note that the Act was enacted to providefor the regulation and registration of clinical establishmentswith view to prescribe minimum standards of facilities andservices. The Act, inter alia, stipulates conditions to be satisfiedby clinical establishments for registration. However, the Actdoes not govern contracts of service entered into by thehospital with respect to its employees. These fall within theambit of purely private contracts, against which writ

346SUPREME COURT REPORTS

Ajurisdiction cannot lie. The sanctity of this distinction mustbe preserved.”

(Emphasis supplied)

68. We may sum up our final conclusions as under:-

B(a) An application under Article 226 of the Constitution ismaintainable against person or body discharging public duties orpublic functions. The public duty cast may be either statutory or otherwiseand where it is otherwise, the body or the person must be shown to owethat duty or obligation to the public involving the public law element.Similarly, for ascertaining the discharge of public function, it must beCestablished that the body or the person was seeking to achieve the samefor the collective benefit of the public or section of it and the authorityto do so must be accepted by the public.

(b) Even if it be assumed that an educational institution is impartingpublic duty, the act complained of must have direct nexus with theDdischarge of public duty. It is indisputably public law action whichconfers right upon the aggrieved to invoke the extraordinary writjurisdiction under Article 226for prerogative writ. Individual wrongsor breach of mutual contracts without having any public element as itsintegral part cannot be rectified through writ petition under ArticleE226.Wherever Courts have intervened in their exercise of jurisdictionunder Article 226, either the service conditions were regulated by thestatutory provisions or the employer had the status of “State” within theexpansive definition under Article 12or it was found that the actioncomplained of has public law element.

F(c) It must be consequently held that while body may bedischarging public function or performing public duty and thus itsactions becoming amenable to judicial review by Constitutional Court,its employees would not have the right to invoke the powers of the HighCourt conferred by Article 226 in respect of matter relating to servicewhere they are not governed or controlled by the statutory provisions.GAn educational institution may perform myriad functions touching variousfacets of public life and in the societal sphere. While such of thosefunctions as would fall within the domain of “public function” or “publicduty” be undisputedly open to challenge and scrutiny under Article 226 ofthe Constitution, the actions or decisions taken solely within the confinesof an ordinary contract of service, having no statutory force or backing,H

cannot be recognised as being amenable to challenge under Article 226ofthe Constitution. In the absence of the service conditions being controlledor governed by statutory provisions, the matter would remain in the realmof an ordinary contract of service.

(d) Even if it be perceived that imparting education by privateunaided the school is public duty within the expanded expression of theterm, an employee of non-teaching staff engaged by the school for thepurpose of its administration or internal management is only an agencycreated by it. It is immaterial whether “A” or “B” is employed by schoolto discharge that duty. In any case, the terms of employment of contractbetween school and non-teaching staff cannot and should not beconstrued to be an inseparable part of the obligation to impart education.This is particularly in respect to the disciplinary proceedings that may beinitiated against particular employee. It is only where the removal ofan employee of non-teaching staff is regulated by some statutoryprovisions, its violation by the employer in contravention of law may beinterfered by the court. But such interference will be on the ground ofbreach of law and not on the basis of interference in discharge of publicduty.

(e) From the pleadings in the original writ petition, it is apparentthat no element of any public law is agitated or otherwise made out. Inother words, the action challenged has no public element and writ ofmandamus cannot be issued as the action was essentially of privatecharacter.

69. In view of the aforesaid discussion, we hold that the learnedsingle Judge of the High Court was justified in taking the view that theoriginal writ application filed by the respondent No. 1 herein under Article226 of the Constitution is not maintainable. The Appeal Court could besaid to have committed an error in taking contrary view.

70. In view of the aforesaid, this appeal succeeds and is herebyallowed. The impugned judgment and order passed by the Division Benchof the High Court in the Writ Appeal No. 485 of 2017 is set aside. Thewrit application accordingly stands rejected on the ground of itsmaintainability. It is needless to clarify that it shall be open to therespondent No. 1 herein to take up the issue with the CBSE itself or theState or may avail any other legal remedy available to him in accordancewith law. We clarify that we have otherwise not expressed any opinionon the merits of the case.

348SUPREME COURT REPORTS

[2022] 8 S.C.R.

A71. There shall be no order as to costs.

72. Pending application, if any, also stands disposed of.

Ankit Gyan

(Assisted by : Aarsh Choudhary, LCRA)

Appeal allowed.