Supreme Court of India
ST. MARY’S EDUCATION SOCIETY & ANR.versusRAJENDRA PRASAD BHARGAVA & ORS.
- Citation
- 2022 INSC 856
- Decided
- 24 August 2022
- Disposal
- Appeal(s) allowed
- Bench
- ANIRUDDHA BOSE
Holding
A writ petition under Article 226 is not maintainable where the grievance pertains solely to a private contract of service lacking any public law element, even if the institution performs public functions.
Summary
The private unaided minority school St. Mary's Education Society terminated the services of its non‑teaching employee, Rajendra Prasad Bhargava, after a disciplinary enquiry. Bhargava filed a writ petition under Article 226 of the Constitution seeking to set aside the termination and the disciplinary committee's order. The High Court initially dismissed the petition as non‑maintainable, but a Division Bench later held it maintainable and remitted the matter for merits. The Supreme Court examined whether a writ under Article 226 can be entertained against a private educational institution when the dispute concerns a purely contractual service matter without a public law element. It held that although such institutions may perform public functions, the termination of service is a private contract issue lacking a public duty nexus, and therefore the writ is not maintainable. Consequently, the Supreme Court set aside the Division Bench’s order and reinstated the High Court’s original dismissal.
Issues considered
- Whether a writ petition under Article 226 of the Constitution is maintainable against a private unaided minority educational institution.
- Whether a service dispute arising from termination of a non‑teaching employee of such an institution can be adjudicated by a writ petition under Article 226.
Legislation cited
Subjects
Article 226writ jurisdictionprivate unaided minority schoolpublic dutypublic functioncontract of servicetermination of employmentdisciplinary committeemaintainabilityjudicial review
Judgment
[2022] 8 S.C.R. 301 301
ST. MARY’S EDUCATION SOCIETY & ANR. A
v.
RAJENDRA PRASAD BHARGAVA & ORS.
(Civil Appeal No. 5789 of 2022)
AUGUST 24, 2022 B
[ANIRUDDHA BOSE AND J. B. PARDIWALA, JJ.]
Constitution of India – Art. 226 – CBSE Affiliation Bye laws
1, 2, 23(xi), 25(xii), 26, 27, 44, 46, 49 and 51 – Writ petition –
Maintainability of – Appellant no.1-Society runs a private unaided
C
minority educational institution – The respondent no.1 was an
employee of appellant – The appellant issued a show cause notice-
cum-suspension order to the respondent for various alleged
misconduct in service – After the departmental enquiry, the
respondent’s services were terminated – The respondent challenged
the termination order before the Disciplinary Committee constituted D
by the appellant but the appeal was dismissed – The respondent
then filed a writ petition under Article 226 of the Constitution of
India seeking to set aside the Disciplinary Committee’s order and
the termination order – The appellants raised a preliminary objection
on the maintainability of the writ petition – Single Judge of High
E
Court rejected the writ application as not being maintainable – On
appeal, the Division bench of High Court set aside the judgment of
the Single Judge and held writ petition maintainable – On appeal,
held: The power of judicial review under Article 226 of the
Constitution of India can be exercised by the High Court even if the
body against which an action is sought is not a state or an authority F
or an instrumentality of the state, but there must be a public element
in the action complained of – Further held, an application u/Art.
226 of the Constitution is maintainable against a person or body
discharging public duties or functions –However, for an educational
institution to be subject to judicial review, the act complained of
G
must have a direct nexus with the discharge of public duty –
Furthermore, employees of such institutions cannot invoke Article
226 in matters relating to service if they are not governed by statutory
provisions – A writ petition under Article 226 cannot be invoked
for individual wrongs or breach of mutual contracts without a public
law element - In the case at hand, the action challenged had no H
301
302 SUPREME COURT REPORTS [2022] 8 S.C.R.
A public element, and a writ of mandamus cannot be issued as the
action was essentially of a private character – Writ application
rejected on the ground of maintainability – Order passed by Division
Bench 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 is
maintainable against a person or a body discharging public duties
or public functions. The public duty cast may be either statutory
or otherwise and where it is otherwise, the body or the person
C must be shown to owe that duty or obligation to the public
involving the public law element. Similarly, for ascertaining the
discharge of public function, it must be established that the body
or the person was seeking to achieve the same for the collective
benefit of the public or a section of it and the authority to do so
D must be accepted by the public.
(b) Even if it be assumed that an educational institution is
imparting public duty, the act complained of must have a direct
nexus with the discharge of public duty. It is indisputably a public
law action which confers a right upon the aggrieved to invoke
E the extraordinary writ jurisdiction under Article 226 for a
prerogative writ. Individual wrongs or breach of mutual contracts
without having any public element as its integral part cannot be
rectified through a writ petition under Article 226. Wherever
Courts have intervened in their exercise of jurisdiction under
Article 226, either the service conditions were regulated by the
F statutory provisions or the employer had the status of “State”
within the expansive definition under Article 12 or it was found
that the action complained of has public law element.
(c) It must be consequently held that while a body may be
discharging a public function or performing a public duty and thus
G its actions becoming amenable to judicial review by a
Constitutional Court, its employees would not have the right to
invoke the powers of the High Court conferred by Article 226 in
respect of matter relating to service where they are not governed
or controlled by the statutory provisions. An educational
institution may perform myriad functions touching various facets
H
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 303
BHARGAVA
of public life and in the societal sphere. While such of those A
functions as would fall within the domain of a “public function” or
“public duty” be undisputedly open to challenge and scrutiny
under Article 226 of the Constitution, the actions or decisions
taken solely within the confines of an ordinary contract of service,
having no statutory force or backing, cannot be recognised as
B
being amenable to challenge under Article 226 of the Constitution.
In the absence of the service conditions being controlled or
governed by statutory provisions, the matter would remain in
the realm of an ordinary contract of service.
(d) Even if it be perceived that imparting education by
private unaided the school is a public duty within the expanded C
expression of the term, an employee of a non-teaching staff
engaged by the school for the purpose of its administration or
internal management is only an agency created by it. It is
immaterial whether “A” or “B” is employed by school to
discharge that duty. In any case, the terms of employment of D
contract between a school and non-teaching staff cannot and should
not be construed to be an inseparable part of the obligation to
impart education. This is particularly in respect to the disciplinary
proceedings that may be initiated against a particular employee.
It is only where the removal of an employee of non-teaching staff
is regulated by some statutory provisions, its violation by the E
employer in contravention of law may be interfered by the court.
But such interference will be on the ground of breach of law and
not on the basis of interference in discharge of public duty.
(e) From the pleadings in the original writ petition, it is
apparent that no element of any public law is agitated or otherwise F
made out. In other words, the action challenged has no public
element and writ of mandamus cannot be issued as the action
was essentially of a private character. [Para 68][346-B-H; 347-
A-E]
Marwari Balika Vidhyalaya v. Asha Shrivastaga, (2020) G
14 SCC 449 : [2019] 2 SCR 722 – distinguished.
Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC
331 : [2012] 12 SCR 315; Executive Committee
H
304 SUPREME COURT REPORTS [2022] 8 S.C.R.
A of Vaish Degree College v. Lakshimi Narain, (1976) 2
SCC 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 Management
Committee, Unchahar, Rai Bareilly, (1992) 1 UPLBEC
B
30; Satimbla Sharma v. St. Pauls Senior Secondary
School [(2011) 13 SCC 760 : [2011] 10 SCR 203;
K. Krishnamacharyulu v. Sri Venkateshwara Hindu
College of Engineering, (1997) 3 SCC 571 : [1997] 2
SCR 368; Binny Ltd. and Another v. V. Sadasivan and
C Others, (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. International
Commission on Irrigation and Drainage and Others,
(2015) 4 SCC 670 : [2014] 14 SCR 892; Shri Anadi
Mukta Sadguru Shree Muktajee Vandasjiswami
D
Suvarna 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; Praga
Tools Corporation v. Shri C.A. Imanual, (1969) 1 SCC
E 585 : [1969] 3 SCR 773; Federal Bank Ltd. v. Sagar
Thomas, (2003) 10 SCC 733 : [2003] 4 Suppl. SCR
121; Janet Jeyapaul v. SRM University & Ors., 2015
(13) SCALE 622; Committee of Management, Delhi
Public School & Anr. v. M.K. Gandhi, (2015) 17 SCC
353; Trigun Chand Thakur v. State of Bihar & Ors.,
F
(2019) 7 SCC 513; Roychan Abraham v. State of U.P.,
AIR 2019 All 96; 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(decided by Supreme
Court of India); case of Vidya Ram Misra v. The
G Managing 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) 8
SCC 481: [2002] 3 Suppl. SCR 587; Ahmedabad St.
Xavier’s College Society v. State of Gujarat, (1974) 1
SCC 717 : [1975] 1 SCR 173; Unnikrishnan P.J. v.
H
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 305
BHARGAVA
State of A.P., (1993) 4 SCC 111 : 1993 (3) SCALE 248;, A
Sushmita Basu v. Ballygunge Siksha Samity, (2006) 7
SCC 680 : [2006] 6 Suppl. SCR 506; Ramakrishnan
Mission v. Kago Kunya, (2019) 16 SCC 303 : [2019] 5
SCR 452; Uttam Chand Rawat v. State of U.P., (2021) 6
All LJ 393 (FB) – referred to.
B
Case Law Reference
[2019] 2 SCR 722 distinguished Para 13
[2012] 12 SCR 315 referred to Para 13
[1976] 2 SCR 1006 referred to Para 28 C
[1971] Suppl. SCR 6 referred to Para 31
[2011] 10 SCR 203 referred to Para 34
[1997] 2 SCR 368 referred to Para 34
[2005] 2 Suppl. SCR 421 referred to Para 34 D
[2009] 7 SCR 336 referred to Para 34
[2014] 14 SCR 892 referred to Para 35
[1989] 2 SCR 697 referred to Para 36
[2003] 1 SCR 1174 referred to Para 36 E
[1969] 3 SCR 773 referred to Para 36
[2003] 4 Suppl. SCR 121 referred to Para 36
1972] 3 SCR 320 referred to Para 48
[2002] 3 Suppl. SCR 587 referred to Para 52 F
[1975] 1 SCR 173 referred to Para 52
[2006] 6 Suppl. SCR 506 referred to Para 55
[2019] 5 SCR 452 referred to Para 62
G
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5789
of 2022.
From the Judgment and Order dated 15.12.2021 of the High Court
of Madhya Pradesh at Indore in Writ Appeal No.485 of 2017.
H
306 SUPREME COURT REPORTS [2022] 8 S.C.R.
A Pai Amit, Rohit R. Saboo, Ms. Pankhuri Bhardwaj, Advs. for the
Appellants.
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 a private unaided minority
C
educational institution and its disciplinary committee, (respondents before
the High Court) and is directed against the judgment and order dated
15.12.2021 passed by a Division Bench of the High Court of Madhya
Pradesh, Bench Indore in the Writ Appeal No. 485 of 2017 by which the
Division Bench set aside the judgment and order passed by a learned
D single Judge of the High Court and held that a writ petition filed by an
employee of a private unaided minority educational institution seeking to
challenge his termination from service is maintainable in law.
3. In the present appeal, two pivotal issues fall for consideration
of this Court:-
E (a) Whether a writ petition under Article 226 of the Constitution
of India is maintainable against a private unaided minority
institution?
(b) Whether a service dispute in the private realm involving a
private educational institution and its employee can be adjudicated
F in a writ petition filed under Article 226 of the Constitution?
In other words, even if a body performing public duty is amenable
to writ jurisdiction, are all its decisions subject to judicial review or
only those decisions which have public element therein can be
judicially reviewed under the writ jurisdiction?
G
4. The aforesaid two questions, though not vexed, nevertheless
despite plethora of case laws, always give rise to a debate.
FACTUAL MATRIX
5. The appellant No. 1-Society runs a private unaided educational
H institution. The appellant No. 2 is the disciplinary committee constituted
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 307
BHARGAVA [J. B. PARDIWALA, J.]
by the appellant No. 1-Society for the purpose of its internal management. A
The respondent No. 1 herein (original writ applicant before the learned
single Judge) was serving as an office employee of the appellant No. 1.
It appears from the materials on record that a show cause notice-cum-
suspension order dated 08.09.2014 was issued by the appellant No. 1
herein to the respondent No.1 for the various alleged misconduct in
B
service. The respondent No. 1 herein was thereafter issued a
departmental chargesheet dated 08.12.2014 essentially on six grounds.
6. The statement of charges and allegations as contained in the
chargesheet dated 08.12.2014 are as under:-
“Charge I- C
That, you refused to receive and deposit the PTA fund from
the lady teachers of the school on 4 th August, 2014 and
misbehaved with them. You talked to them rudely, loudly and
your language was improper. Your refusal to receive and
deposit the amount during the working hours is a gross D
misconduct and dereliction of your duty and act subversive
of discipline.
Charge-II-
That, you are in habit of writing unwarranted letters to
different authorities against the Principal of the school using E
very disrespectful, derogatory and offensive language,
making false accusation which is spoiling the image and
reputation of this school.
Charge-III-
F
That, you have threatened and pressurized the institution by
closing your Bank Account in which your monthly salary was
being deposited for the last so many years. You also actually
refused to accept and receive your monthly salary for the
month of August, 2014, which was offered to you by cheque
personally on 01.09.2014. In the following month the salary G
from 1 st to 8 th September and 9 th to 30 th September as
Subsistence Allowance was also offered to you by cheque on
01.10.2014 which you refused to accept again, saying that-
“I will take the subsistence allowance but until and unless I
get justice …” (Letter dated 10.10.2014).
H
308 SUPREME COURT REPORTS [2022] 8 S.C.R.
A Your refusal to accept the salary shows that you do
not wish to continue the relationship of employer – employee
with the school because the school cannot take your service
without paying your salary.
Charge-IV-
B That earlier also your rude behavior with the Principal of
the school was noticed for which you were warned and
advised 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 also
C namely: (1) Sr. Lalita (Letter dated 17.04.2009) and (2) Sr.
Flavia.
Charge-V-
That, you were threatening the institution by writing to the
President of our country that if something happens to you
D physically or mentally on work due to such behavior at home
the sole responsibility of it would be on the School
Management, the Principal and the various authorities. This
behaviour has compelled the school to complain to the police
regarding your threat.
E Charge-VI-
That, you are in the habit of taking leaves at will and insisting
on taking leave at your sole convenience, sometimes without
any sanction also.”
After conclusion of the departmental enquiry, the services of the
F
respondent No. 1 came to be terminated vide order dated 08.05.2015.
7. The respondent No. 1 herein challenged the order of termination
on various grounds in appeal before the Disciplinary Committee of the
appellant No. 1. The appeal was filed by the respondent No. 1 herein
under Rule 49 of the CBSE Affiliation Byelaws. The Disciplinary
G Committee 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 appeal
was ordered to be dismissed by the Disciplinary Committee, the appellant
No. 2 herein, vide order dated 23.09.2016.
H
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 309
BHARGAVA [J. B. PARDIWALA, J.]
8. In view of the aforesaid, the respondent No. 1 invoked the writ A
jurisdiction of the High Court under Article 226 of the Constitution of
India. In the writ petition, the respondent No. 1 arrayed the following
five respondents:-
1. Union of India
2. Central Board of Secondary Education B
3. St. Mary’s Education Society
4. Disciplinary Committee of the School
5. Mr. T.R. Lapalikar (retired Deputy Labour Commissioner
appointed as Enquiry Officer) C
9. It is pertinent to note that despite the above five respondents
being arrayed as aforestated, the principal relief sought in the writ petition
filed by the respondent No. 1 herein was to set aside the order dated
23.09.2016 passed by the Disciplinary Committee of the school and to
set aside the order of termination dated 08.05.2015 passed by the appellant D
No. 1 herein. In other words, the respondent No.1 herein sought writ in
the nature of certiorari to be issued against the private unaided minority
institution. It may not be out of place to state at this stage that no relief
was sought against the Union of India, respondent No. 2 herein and the
Central Board of Secondary Education (CBSE), respondent No. 3 herein.
E
10. The appellants herein raised a preliminary objection before
the learned single Judge of the High Court on the maintainability of the
writ petition filed by an employee of a private unaided minority institution.
11. The learned single Judge of the High Court upheld the
preliminary objection raised by the appellants herein and rejected the F
writ application as not being maintainable. While rejecting the writ
application vide order dated 10.07.2017 on the ground of not being
maintainable 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 that G
case in respect of teachers duly appointed to a post in the
private institution, it has been held by the Supreme Court that
when an element of public interest is created and institution
is catering to that element, the teacher, the arm of the
institution is also entitled to avail of remedy provided under
H
310 SUPREME COURT REPORTS [2022] 8 S.C.R.
A Article 226. In the present case, petitioner is not a teacher
but is a member of clerical staff being L.D.C., hence he is not
entitled to the benefit of that judgment.
So far as the judgment in the matter of Frank Anthony Public
School Employees Association(supra) is concerned, that was
B a case where the teachers had approached the court for writ
of mandamus seeking equalisation of their pay scales and
condition of service with those of their counterparts in
government schools and in that context it was observed that
‘the management of a minority Educational institution cannot
be permitted under the guise of the fundamental right
C guaranteed by Article 30(1) of the Constitution, to oppress
or exploit its employees any more than any other private
employee, therefore the said judgment is distinguishable on
its own facts.
Similarly the benefit of Single Bench judgment of this court
D in the matter of Mrs. Kirti Bugde (supra) cannot be granted
to the petitioner because in that judgment the petitioner was
a teacher and a member of the academic staff but that is not
so in the present case.
Having regard to the aforesaid, I am of the opinion that writ
E petition filed by the petitioner for issuance of writ of certiorari
against the action of respondent No.3 which is a private
unaided institution is not maintainable under Article 226 of
the Constitution of India, which is accordingly dismissed,
however with a liberty to the petitioner to avail such other
F remedies as are available in the law.”
12. Being aggrieved with the aforesaid judgment and order passed
by the learned single Judge of the High Court, the respondent No. 1
herein went in appeal under Section 2(1) of the M.P. Uchcha Nyayalaya
(Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005. The Division Bench
G of the High Court thought fit to set aside the judgment and order passed
by the learned single Judge and allowed the appeal holding that the writ
application filed by the respondent No.1 herein against the appellants
herein challenging the order of termination from service was maintainable
under Article 226 of the Constitution. The appeal Court remitted the
matter to the learned single Judge for being considered on its own merits.
H
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 311
BHARGAVA [J. B. PARDIWALA, J.]
The Division Bench, while allowing the appeal filed by the respondent A
No. 1 herein, held as under:-
“11. Since all the aforesaid previous judgments have been
considered, the judgment of Marwari (supra) is a binding
precedent. The present appellant was terminated from a
private institution. In Marwari (supra) and Ramesh Ahluwalia B
(supra) also the termination of Teacher/Officer was called in
question in a writ petition. As per this judgment, the writ petition
is maintainable. A division bench of this Court in Yogendra
Singh Dhakad Vs. Delhi Public School Society & Ors. 2014
SCC OnLine MP 162 has also taken the same view. So far as
the judgment of Supreme Court in Executive Committee of C
Vaish Degree College, Shamli & Ors. Vs. Lakshmi Narain &
Ors. (1976) 2 SCC 58 is concerned, it is not applicable to the
present case as it did not arise out of a writ petition.
12. Considering the aforesaid, order of learned Single Judge
dated 10.07.2017 passed in WP No.1052/2017 is set aside. D
The writ petition is restored to its original number. We have
no doubt that writ court shall make every endeavor to decide
the petition expeditiously preferably within two months.
13. The writ appeal is allowed to the extent indicated above.”
E
13. It appears from the aforesaid that the appeal court heavily
relied upon the decision of this Court rendered in the case of Marwari
Balika Vidhyalaya v. Asha Shrivastaga, reported in (2020) 14 SCC
449, which, in turn, has relied upon its decision in the case of Ramesh
Ahluwalia v. State of Punjab, reported in (2012) 12 SCC 331.
F
14. In view of the aforesaid, the appellants are before this Court
with the present appeal.
LEGAL STATUS OF THE APPELLANT NO. 1 - SOCIETY
15. The appellant No. 1 is a Society registered under the Madhya
Pradesh Society Registrikaran Adhiniyam, 1973. The Society runs an G
all-girls school in Mhow, Indore, Madhya Pradesh, by the name St. Mary’s
Higher Secondary School, which was founded by a group of French
Catholic Nuns in 1893. The school is a private unaided minority educational
institution, which enjoys the protection guaranteed under Article 30(1)
of the Constitution. There is absolutely no Governmental control over
H
312 SUPREME COURT REPORTS [2022] 8 S.C.R.
A the functioning and administration of the school. The respondent No. 1
herein was employed in this school prior to his termination. The school is
presently affiliated to the Central Board of Secondary Education (CBSE)
and is thus governed by its Rules and Byelaws. Further, the Society has
its own Byelaws, namely, (1) the Service Conditions for the Employees
of St. Mary’s School and (2) Service Rules for Teaching and Non-
B
Teaching Staff. The appellant No. 1-Society and the school are absolutely
private institutions, without any aid or control of the Government or any
instrumentality of the Government, and therefore, not a “State” within
the meaning of Article 12 of the Constitution.
16. CBSE-i AFFILIATION BYELAWS
C
Chapter- I
1. Short Title and Definitions:
1. These Byelaws shall be called Central Board of Secondary
Education – International Affiliation Byelaws.
D
2. 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 not
granting affiliation or any other matter pertaining to upgradation
and /or any matter arising in respect of anything pertaining to
E
affiliation with any school and / or any other person, society,
company or organization , the courts and tribunals at Delhi only
shall have the exclusive jurisdiction to entertain such disputes.
2. Definitions:
F (i) “Affiliation” means formal enrolment of a school among
the list of approved schools of the Board following prescribed
/ approved courses of studies up to class VIII as well as those
preparing students according to prescribed courses for the
Board’s International Curriculum examinations.
G x x x x
(xxxxii) “School” means any recognized school imparting
elementary / middle / secondary /senior secondary level
education and includes:
(i) a school established, owned or controlled by the
H appropriate Government or a local authority;
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 313
BHARGAVA [J. B. PARDIWALA, J.]
(ii) an aided school receiving aid or grants to meet whole or A
part of its expenses from the appropriate Government or the
local authority;
(iii) a school belonging to specified category; and
(iv) an unaided school not receiving any kind of aid or grants
to meet its expenses from the appropriate Government or the B
local authority.
Chapter-6
23. Powers and functions of the School Managing Committee:
(xi) It shall exercise powers to take disciplinary action against C
staff.
25. Head of the School – Duties, Powers and Responsibilities:
(xii) Supervise, guide and control the work of the teaching
and non- teaching staff of the school.
D
Chapter -7
Service Rules for Employees:
26. Short Title:
(1) Each school affiliated/ to be affiliated with the Board shall E
frame Service Rules for its employees which will be as per
Education Act of the State/ Union Territory, if the Act makes
adoption of the same obligatory, otherwise as per Service
Rules given in subsequent sections.
(2) Service Contract will be entered with each employee as F
per the provision in the Education Act of the State / Union
Territory or as given in Appendix III, if not obligatory as per
the State Education Act / Act applicable in the country in which
the school is situated.
27. Appointments:
G
(1) All appointments to all categories of employees except
Group ‘D’ employees (multitasking staff/ housekeeping) as
per relevant country/Government of India gradation shall be
made by Managing Committee either by direct recruitment or
by promotion through a Selection Committee constituted by
H
314 SUPREME COURT REPORTS [2022] 8 S.C.R.
A the School Society/Trust/Company Registered under Section
25 of the Companies Act, 1956 or under the appropriate Acts
of relevant country and in accordance with and upon such
conditions as the Managing committee may decide, which shall
be consistent with norms of the Board / Government if statutory
provision exists. Appointment of Group ‘D’ employees will be
B
made by the Principal through constituted Selection
Committee.
(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) a person having experience of administration of schools,
D nominated 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) a subject expert
F c) In the case of recruitment of clerical staff / Laboratory
Assistant:
(i) The Chairman of the managing committee or any member
of 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;
H
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 315
BHARGAVA [J. B. PARDIWALA, J.]
(ii) A nominee of School Managing Committee. A
(3) The Selection Committee shall regulate its own procedure
and in the case of any difference of opinion amongst the
members of the Selection Committee on any matter, it shall be
decided by the trust / society running the school or Board.
(4) The appointment letters of every employee of a school B
shall be issued by its managing committee.
(5) Where any selection made by the Selection Committee is
not acceptable to the managing committee of the school, the
managing committee shall record its reason for such
nonacceptance and refer the matter to Board and the trust or C
society or Company registered under Section 25 of the
Companies Act, 1956 or under the appropriate Acts of
relevant 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 of D
this agreement and they shall have to comply with all the
requirements of the provisions contained herein.
44. Code of Conduct:
Byelaw number 44 of the Chapter-7 prescribes that every
E
employee shall be covered by the code of conduct. It
prescribes the acts that constitute breach of code of conduct,
the acts which shall not be deemed as a breach is a code of
conduct.
46. Disciplinary Procedure:
F
Suspension
1. The School Managing Committee may place an employee
under suspension where:
a. The disciplinary proceedings against her are contemplated
or pending. G
Or
b. A case against her in respect of any criminal offence is
under investigation or trial;
Or H
316 SUPREME COURT REPORTS [2022] 8 S.C.R.
A c. She is charged with embezzlement;
Or
d. She is charged with cruelty / physical punishment or mental
harassment towards any student or any employee of the school.
B Or
e. She is charged with misbehavior towards any parent,
guardian student or employee of the school;
Or
f. She is charged with a breach of any other Code of Conduct.
C
49. Procedure for Imposing Major Penalty:
1. No order imposing on any employee any major penalty
shall be made except after an inquiry is held as far as may
be, in the manner specified below:
D a) The disciplinary authority shall frame definite charges on
the basis of the allegation on which the inquiry is proposed
to be held and a copy of the charges together with the
statement of the allegations on which they are based shall be
furnished to employee and she shall be required to submit
E within such time as may be specified by the disciplinary
authority but not later than two weeks, a written statement of
her defence and also to state whether she desires to be heard
in person;
b) On receipt of the written statement of defence, or where no
F such statement is received within the specified time, the
disciplinary authority may itself make inquiry in to such of
the charges as are not admitted or if it considers it necessary
to do so, appoint and inquiry officer for the purpose;
c) At the conclusion of the enquiry the enquiry officer shall
G prepare a report of the enquiry recording her findings on
each of the charges together with the reasons thereof;
d) The disciplinary authority shall consider the report of the
enquiry and record its findings on each charge and if the
disciplinary authority is of opinion that any of the major
penalties should be imposed it shall:
H
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 317
BHARGAVA [J. B. PARDIWALA, J.]
(i) furnish to the employee a copy of the report of the enquiry A
officer, where an enquiry has been made by such officers;
(ii) give her notice in writing stating the action proposed to
be taken in regard to her and calling upon her to submit within
the specified time, not exceeding two weeks, such
representation as she may wish to make against the proposed B
action;
(iii) on receipt of the representation if any, made by the
employee, the disciplinary authority shall determine what
penalty, if any should be imposed on the employee and
communicate its tentative decision to impose the penalty to C
the Committee for its prior approval;
(iv) after considering the representation, made by the
employee against the penalty, the disciplinary authority shall
record its findings as to the penalty, which it proposes to
impose on the employee and send its findings and decision to D
the Committee for its approval and while doing so the
disciplinary authority shall furnish to the employee all relevant
records of the case including the statement of allegations,
charges framed against the employee, representation made
by the employee, a copy of the enquiry report, where such
enquiry was made and the proceedings of the disciplinary E
authority.
2. No order with regard to the imposition of a major penalty
shall be made by the disciplinary authority except after the
receipt of the approval of the Committee.
F
51. Disciplinary Committee:
1. In case the employee wishes to appeal against the order of
the Disciplinary authority, the appeal shall be referred to a
Disciplinary Committee. The Disciplinary Committee shall
consist of the following:
G
a) The Chairman of the School Managing committee or in
her absence any member of the Committee, nominated by her.
b) The Manager of the School, and where the disciplinary
proceeding is against her any other person of the Committee
nominated by the Chairman. H
318 SUPREME COURT REPORTS [2022] 8 S.C.R.
A c) A nominee of the Board appropriate authority, She shall
act as an adviser.
d) The Head of the School, except where the disciplinary
proceedings is against her, the Head of any other school
nominated by the CBSE or Director of Education in case the
B Act so provides.
e) One teacher who is a member of School Managing
Committee of the school nominated by the Chairman of the
Committee.
2. The Disciplinary Committee shall carefully examine the
C findings of the enquiry officer reasons for imposing penalty
recorded by the Disciplinary Authority and the representation
by the employee and pass orders as it may deem fit.
Appendix–IV attached to the Byelaws is with respect to the
minority educational institutions. Clause 6 of Appendix-IV reads
D thus:-
“6. Disciplinary Control over Staff in Minority Educational
Institutions: While the managements should exercise the
disciplinary control over staff, it must be ensured that they
hold an inquiry and follow a fair procedure before punishment
E is given. With a view to preventing the possible misuse of power
by the management of the Minority Educational Institutions,
the State has the regulatory power to safeguard the interests
of their employees and their service conditions including
procedure for punishment to be imposed.”
F (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 Court
committed a serious error in passing the impugned judgment and order.
G He would submit that the learned single Judge of the High Court rightly
took the view that the writ petition filed by the respondent No.1 herein
seeking to challenge the order of termination passed by the appellant
No. 1 herein could not be said to be maintainable in law. He would
submit that the Division Bench of the High Court in an intra-court appeal
H ought not to have taken the view that the writ petition under Article 226
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 319
BHARGAVA [J. B. PARDIWALA, J.]
of the Constitution at the instance of the respondent No. 1 herein was A
maintainable before the learned single Judge.
18. Mr. Pai would submit that the Division Bench of the High
Court mis-directed itself by relying upon the two decisions of this Court
rendered in the cases of Ramesh Ahluwalia (supra) and Marwari
Balika Vidhyalaya (supra). B
19. Mr. Pai laid much stress on the following three aspects of the
matter:-
(a) Indisputably, the appellant No. 1 is a private unaided minority
educational institution;
C
(b) The dispute between the appellants and the respondent No. 1
herein is purely contractual in nature and does not involve any
public law element, and
(c) The respondent No.1 herein has sought relief only against the
two orders of termination and both of which have been passed D
by the appellant No. 1 in its capacity as a private body.
20. In such circumstance referred to above, Mr. Pai prays that
there being merit in his appeal, the same may be allowed and the impugned
order passed by the Division Bench of the High Court may be set aside.
SUBMISSIONS ON BEHALF OF THE RESPONDENT E
NO. 1
21. The respondent No. 1 herein appeared virtually in-person. He
relied upon the written submissions furnished by him to this Court. In his
written submissions dated 10.08.2022, he has mainly stated as under:-
“That the respondent no. 1 (Rajendra Prasad Bhargava) is F
filing this Written Notes as per this Hon’ble Court’s Order
Dated:08.08.2022 seeking that the judgment and final order
dated: 15.12.2021 of the Hon’ble High Court of Madhya
Pradesh, Bench at Indore in Writ Appeal No. 485/2017 kindly
be upheld whereby the writ petition of Respondent No. 1 was G
maintainable.
That the Respondent No. 1 was working in St. Mary’s Hr. Sec.
School, Mhow (M.P.) run by the appellant namely St. Mary’s
Education Society, serving as a LDC since July 1, 1987. That,
the respondent no. 1 has performed his duty honestly, diligently, H
320 SUPREME COURT REPORTS [2022] 8 S.C.R.
A allegiance (loyalty) and with hard work during his 27 years
of service and there is no adverse remark in his Service Book
and Annual Confidential Roll. That, as far as the respondent
no. 1 has knowledge and information, on the basis of that
the respondent no. 1 humbly prays to this Court that:
B I) Mandamus is a very wide remedy which must be available
to reach injustice wherever it is found. Technicalities should
not come in the way of granting that relief under Article 226.
“A word is said to be mandatory as well as defining in nature
when the word MUST is used in meaning of that word.”
C As the word “MUST” is used in the aforesaid statement about
the mandamus by this Hon’ble Court, the mandamus becomes
mandatory as well as defining in nature. Hence it is proved
that mandamus is a very wide remedy which must be easily
available to reach injustice wherever it is found. Technicalities
D should not come in the way of granting that relief under Article
226.
I (Respondent No. 1), therefore, humbly pray to this Hon’ble
Supreme Court that kindly reject the contention urged by the
appellant on the maintainability of the writ petition and to
E kindly upheld the Impugned judgment and final order dated:
15.12.2021 rightly and legally held by the Hon’ble High Court
of Madhya Pradesh, Bench at Indore in Writ Appeal No. 485
of 2017.
1. Kindly read page No. 2 and 3 of Reply to the SLP.
F OR
Kindly read page No. 76 and 77 of Reply to the SLP (Annexure
R-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 SLP
G (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.
OR
H
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 321
BHARGAVA [J. B. PARDIWALA, J.]
Kindly read Para 15 on page No. 97, 98 and 99 of Reply to A
the SLP (Annexure R-4 Marwari Balika Vidhyalya Case
reported in (2020) 14 SCC 449.
4. Kindly read page No. 49 of SLP (Annexure P-5 Yogendra
Singh Dhakad versus Delhi Public School Society, 2014 SCC
Online MP 162: AIR 2014 (NOC 580) 211.” B
22. In his written submissions, the respondent No. 1 has also
requested this Court to consider the following social circumstances:-
“i) That, my youngest son Ashwin Bhargava is suffering from
Cancer of Nasopharanx (Rare type of Head and Nose
Cancer) and I’m facing severe financial difficulties in his C
medical treatment.
ii) That, my wife Smt. Sunita Bhargava, 53 years has been
operated upon for Carnio Vertebral Junction Anamoly on
25.12.2021. She has been discharged on 02.01.2022 and still
completely on bed. Her medication is still going on through D
physiotherapy and regular follow up for future periodic
evaluation. For her operation I’ve taken a loan of Rupees
350000/- from a friend which has put more financial burden
on me. I’ve to attend her throughout the day and night as
well. E
iii) That, apart from this, I’m suffering from Cataract Disease
in left eye.
iv) That, I’m also suffering from Knee Pain problem in the
right leg.”
F
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 this
Court that kindly reject the contention urged by the appellant
on the maintainability of the writ petition and to kindly upheld G
the Impugned Judgment and final order dated:15.12.2021
rightly and legally held by the High Court of Madhya
Pradesh, Bench at Indore in Writ Appeal No. 485 of 2017.
2. That, the impugned order dated 23.09.2016 passed by the
appellant, being illegal, improper and inoperative, may kindly H
be set aside;
322 SUPREME COURT REPORTS [2022] 8 S.C.R.
A 3. That, the termination order dated 08.05.2015 passed by
the disciplinary authority may kindly be set aside;
4. That, necessary orders may kindly be passed for reinstating
the Respondent no. 1 at his original post with all consequential
benefits and back wages;
B 5. Any other relief, which this Court may consider necessary
in the interest of justice, may also be granted in favor of the
Respondent no. 1.”
24. Later in point of time, the respondent No. 1 filed additional
written submissions dated 11.08.2022, wherein the following has been
C stated:-
“1. That, when Respondent no. 1 was appointed in the said
institution (St. Mary’s Hr. Sec. School), the said institution
was affiliated to the M.P. Board (State Board). At that time the
school was also in receipt of the Grant-in-Aid from the State
D Government of M.P.
2. That, whilst the respondent no. 1 was appointed on
01.07.1987 but the Service Conditions and Guidelines for
the Teachers was for the first time given on 26.07.2013 by
the school to the respondent no. 1.
E
3. That, at the time of appointment of respondent no. 1 the
said school was governed by the M.P. Ashaskiya School
Viniyam Adhiniyam, 1975 – Which received the assent of the
President on the 18th October, 1975 assetn first published in
the Madhya Pradesh for their better organization and
F development and matters connected therewith or incidental
thereto.
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 State
G Government may regulate education in all the schools in the
State in accordance with the provisions of this Act and the
rules made thereunder.”
25. He has relied upon few judgments of this Court as noted above
to fortify his submissions that the writ application filed before the learned
H
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 323
BHARGAVA [J. B. PARDIWALA, J.]
single Judge was maintainable and should have been entertained on its A
own merits.
ANALYSIS
26. Having heard the learned counsel appearing for the appellants
and the respondent No. 1 in-person and also having considered the
materials on record, we now proceed to answer the two pivotal issues B
referred to above by us.
27. The respondent No. 1 herein has laid much emphasis on the
fact that at the time of his appointment in the school, the same was
affiliated to the Madhya Pradesh State Board. It is his case that at the
relevant point of time the school used to receive the grant-in-aid from C
the State Government of Madhya Pradesh. Later in point of time, the
school came to be affiliated to the CBSE. The argument of the respondent
No. 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 the
Constitution. The school is affiliated to the CBSE for the purpose of D
imparting elementary education under the Right of Children to Free and
Compulsory Education Act, 2009 (for short, “Act 2009”). As the appellant
No. 1 is engaged in imparting of education, it could be said to be performing
public functions. To put it in other words, the appellant No. 1 could be
said to be performing public duty. Even if a body performing public duty
is amenable to the writ jurisdiction, all its decisions are not subject to E
judicial review. Only those decisions which have public element therein
can be judicially reviewed under the writ jurisdiction. If the action
challenged does not have the public element, a writ of mandamus cannot
be issued as the action could be said to be essentially of a private
character. F
28. We may at the outset state that the CBSE is only a society
registered under the Societies Registration Act, 1860 and the school
affiliated to it is not a creature of the statute and hence not a statutory
body. The distinction between a body created by the statute and a body
governed in accordance with a statute has been explained by this Court G
in the Executive Committee of Vaish Degree College v. Lakshimi
Narain, (1976) 2 SCC 58, as follows:-
“It is, therefore, clear that there is a well marked distinction
between a body which is created by the statute and a body
which after having come into existence is governed in
H
324 SUPREME COURT REPORTS [2022] 8 S.C.R.
A accordance with the provisions of the statute. In other words,
the position seems to be that the institution concerned must
owe its very existence to a statute which would be the
fountain-head of its powers. The question in such cases to be
asked is, if there is no statute would the institution have any
legal existence. If the answer is in the negative, then
B
undoubtedly it is a statutory body, but if the institution has a
separate existence of its own without any reference to the
statute concerned but is merely governed by the statutory
provisions it cannot be said to be a statutory body.”
29. As stated above, the school is affiliated to the CBSE for the
C sake of convenience, namely, for the purpose of recognition and syllabus
or the courses of study and the provisions of the Act 2009 and the rules
framed thereunder.
30. The contention canvassed by the respondent No. 1 is that a
Writ Petition is maintainable against the Committee of Management
D controlling the affairs of an institution (minority) run by it, if it violates
any rules and byelaws laid down by the CBSE. First, as discussed above,
the CBSE itself is not a statutory body nor the regulations framed by it
has any statutory force. Secondly, the mere fact that the Board grants
recognition to the institutions on certain terms and conditions itself does
E not confer any enforceable right on any person as against the Committee
of Management.
31. In Km. Regina v. St. Aloysins High Elementary School
and another, (1972) 4 SCC 188 : AIR 1971 SC 1920, this Court held
that the mere fact that an institution is recognised by an authority, does
F not itself create an enforceable right to an aggrieved party against the
Management by a teacher on the ground of breach or non-compliance
of any of the Rules which was part of terms of the recognition. It was
observed as under :-
“The Rules thus govern the terms on which the Government
G would grant recognition and aid and the Government can
enforce these rules upon the management. But the enforcement
of such rules is a matter between the Government and the
management, and a third party, such as teacher aggrieved by
some order of the management cannot derive from the rules
any enforceable right against the management on the ground
H of breach or non-compliance of any of the rules.”
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 325
BHARGAVA [J. B. PARDIWALA, J.]
32. In Km. Anita Verma v. D.A.V. College Management A
Committee, Unchahar, Rai Bareilly, (1992) 1 UPLBEC 30:-
“….30 where the services of a teacher were terminated, the
Court held that the writ petition under Article 226 is not
maintainable as the institution cannot be treated as the
instrumentality of the State. The matter was considered in detail B
in M/s. Habans Kaur v. Committee of Management, Guru
Teghahadur Public School, Meerut and Anr., 1992 Labour
and Industrial Cases 2070 (All), wherein the services of the
petitioner were terminated by the Managing Committee of the
institution recognised by the C.B.S.E. It was held that the
Affiliation Bye-laws framed by the C.B.S.E. has no statutory C
force. The Court under Article 226 of the Constitution of India
can enforce compliance of statutory provision against a
Committee of Management as held in a Full Bench decision
of this Court in Aley Ahmad Abdi v. District Inspector of
Schools, Allahabad and Ors., AIR 1977 All. 539. The D
Affiliation Bye-laws of C.B.S.E. having no statutory force,
the only remedy against the aggrieved person is to approach
C.B.S.E. putting his grievances in relation to the violation of
the Affiliation Bye-laws by the institution.”
33. Thus, where a teacher or non-teaching staff challenges action E
of Committee of Management that it has violated the terms of contract
or the rules of the Affiliation Byelaws, the appropriate remedy of such
teacher or employee is to approach the CBSE or to take such other legal
remedy available under law. It is open to the CBSE to take appropriate
action against the Committee of Management of the institution for
withdrawal of recognition in case it finds that the Committee of F
Management has not performed its duties in accordance with the
Affiliation Byelaws.
34. It needs no elaboration to state that a school affiliated to the
CBSE which is unaided is not a State within Article 12 of the Constitution
of India [See : Satimbla Sharma v. St. Pauls Senior Secondary School G
[(2011) 13 SCC 760]. Nevertheless the school discharges a public duty
of imparting education which is a fundamental right of the citizen [See :
K. Krishnamacharyulu v. Sri Venkateshwara Hindu College of
Engineering, (1997) 3 SCC 571]. The school affiliated to the CBSE is
therefore an “authority” amenable to the jurisdiction under Article 226 H
326 SUPREME COURT REPORTS [2022] 8 S.C.R.
A of the Constitution of India [See : Binny Ltd. and another v. V.
Sadasivan and others, (2005) 6 SCC 657]. However, a judicial review
of the action challenged by a party can be had by resort to the writ
jurisdiction only if there is a public law element and not to enforce a
contract of personal service. A contract of personal service includes all
matters relating to the service of the employee – confirmation, suspension,
B
transfer, 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. International
Commission on Irrigation and Drainage and others, (2015) 4 SCC
670, after an exhaustive review of its earlier decisions on the subject,
C held as follows:-
“43. What follows from a minute and careful reading of the
aforesaid judgments of this Court is that if a person or
authority is a ‘State’ within the meaning of Article 12 of the
Constitution, admittedly a writ petition under Article
D 226 would lie against such a person or body. However, we
may add that even in such cases writ would not lie to enforce
private law rights. There are catena of judgments on this
aspect and it is not necessary to refer to those judgments as
that is the basic principle of judicial review of an action under
E the administrative law. Reason is obvious. Private law is that
part of a legal system which is a part of Common Law that
involves relationships between individuals, such as law of
contract or torts. Therefore, even if writ petition would be
maintainable against an authority, which is ‘State’
under Article 12 of the Constitution, before issuing any writ,
F particularly writ of mandamus, the Court has to satisfy that
action of such an authority, which is challenged, is in the
domain of public law as distinguished from private law.
x x x x
G
52. It is trite that contract of personal service cannot be
enforced. There are three exceptions to this rule, namely:
(i) when the employee is a public servant working under the
Union of India or State;
H
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 327
BHARGAVA [J. B. PARDIWALA, J.]
(ii) when such an employee is employed by an authority/ body A
which is a State within the meaning of Article 12 of the
Constitution of India; and
(ii) when such an employee is ‘workmen’ within the meaning
of Section 2(s) of the Industrial Disputes Act, 1947 and raises
a dispute regarding his termination by invoking the machinery B
under the said Act.
In the first two cases, the employment ceases to have private
law character and ‘status’ to such an employment is attached.
In the third category of cases, it is the Industrial Disputes
Act which confers jurisdiction on the labour court/industrial C
tribunal to grant reinstatement in case termination is found
to be illegal.”
36. The following decisions have been adverted to in K.K.
Saksena (supra):-
1. Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami D
Suvarna 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
E
3. Praga Tools Corporation v. Shri C.A. Imanual, (1969) 1
SCC 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 a private body F
exercises its public functions even if it is not a State, the aggrieved person
has a remedy, not only under the ordinary law, but also by way of a writ
petition under Article 226 of the Constitution. In the case of Binny Ltd.
(supra), this Court held that the Article 226 of the Constitution is couched
in such a way that a writ of mandamus could be issued even against a
private authority. However, such private authority must be discharging a G
public function and that the decision sought to be corrected or enforced
must be in the discharge of public function.
38. Paragraph 11 of the judgment in Binny Ltd. (supra) is
reproduced below:-
H
328 SUPREME COURT REPORTS [2022] 8 S.C.R.
A “Judicial review is designed to prevent the cases of abuse of
power and neglect of duty by public authorities. However,
under our Constitution, Article 226 is couched in such a way
that a writ of mandamus could be issued even against a private
authority. However, such private authority must be
discharging a public function and that the decision sought to
B
be corrected or enforced must be in discharge of a public
function. The role of the State expanded enormously and
attempts have been made to create various agencies to perform
the governmental functions. Several corporations and
companies have also been formed by the government to run
C industries and to carry on trading activities. These have come
to be known as Public Sector Undertakings. However, in the
interpretation given to Article 12 of the Constitution, this Court
took the view that many of these companies and corporations
could come within the sweep of Article 12 of the Constitution.
At the same time, there are private bodies also which may be
D
discharging public functions. It is difficult to draw a line
between the public functions and private functions when it is
being discharged by a purely private authority. A body is
performing a “public function” when it seeks to achieve some
collective benefit for the public or a section of the public and
E is accepted by the public or that section of the public as having
authority to do so. Bodies therefore exercise public functions
when they intervene or participate in social or economic
affairs in the public interest….” (Emphasis supplied)
39. This Court considered various of its other decisions to examine
F the 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 a writ of mandamus or the
remedy under Article 226 is pre-eminently a public law remedy
and is not generally available as a remedy against private
G wrongs. It is used for enforcement of various rights of the
public or to compel the public/statutory authorities to
discharge their duties and to act within their bounds. It may
be used to do justice when there is wrongful exercise of power
or a refusal to perform duties. This writ is admirably equipped
to serve as a judicial control over administrative actions. This
H
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 329
BHARGAVA [J. B. PARDIWALA, J.]
writ could also be issued against any private body or person, A
specially in view of the words used in Article 226 of the
Constitution. However, the scope of mandamus is limited to
enforcement of public duty. The scope of mandamus is
determined by the nature of the duty to be enforced, rather
than the identity of the authority against whom it is sought. If
B
the private body is discharging a public function and the denial
of any right is in connection with the public duty imposed on
such body, the public law remedy can be enforced. The duty
cast on the public body may be either statutory or otherwise
and the source of such power is immaterial, but, nevertheless,
there must be the public law element in such action. Sometimes, C
it is difficult to distinguish between public law and private
law remedies.”
(Emphasis supplied)
40. In the penultimate para, this Court ruled as under:-
D
“32. Applying these principles, it can very well be said that a
writ of mandamus can be issued against a private body which
is not a State within the meaning of Article 12 of the
Constitution and such body is amenable to the jurisdiction
under Article 226 of the Constitution and the High Court
under Article 226 of the Constitution can exercise judicial E
review of the action challenged by a party. But there must be
a public law element and it cannot be exercised to enforce
purely private contracts entered into between the parties.”
(Emphasis supplied)
F
41. In the background of the above legal position, it can be safely
concluded that power of judicial review under Article 226 of the
Constitution of India can be exercised by the High Court even if the
body against which an action is sought is not State or an Authority or an
Instrumentality of the State but there must be a public element in the
action complained of. G
42. A reading of the above extract shows that the decision sought
to be corrected or enforced must be in the discharge of a public function.
No doubt, the aims and objective of the appellant No. 1 herein is to
impart education, which is a public function. However, the issue herein
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330 SUPREME COURT REPORTS [2022] 8 S.C.R.
A is with regard to the termination of service of the respondent No. 1,
which is basically a service contract. A body is said to be performing a
public function when it seeks to achieve some collective benefit for the
public or a section of the public and is accepted by the public or that
section of the public as having authority to do so.
B 43. In the case of Committee of Management, Delhi Public
School & Anr. v. M.K. Gandhi, reported in (2015) 17 SCC 353, this
Court held that no writ is maintainable against a private school as it is not
a “State” within the meaning of Article 12 of the Constitution of India.
44. In the case of Trigun Chand Thakur v. State of Bihar &
C Ors., reported in (2019) 7 SCC 513, this Court upheld the view of a
Division Bench of the Patna High Court which held that a teacher of
privately managed school, even though financially aided by the State
Government or the Board, cannot maintain a writ petition against an
order of termination from service passed by the Management.
D 45. In the case of Satimbla Sharma (supra), this Court held that
the unaided private minority schools over which the Government has no
administrative control because of their autonomy under Article 30(1) of
the Constitution are not “State” within the meaning of Article 12 of the
Constitution. As the right to equality under Article 14 of the Constitution
is available against the State, it cannot be claimed against unaided private
E minority private schools.
46. The Full Bench of the Allahabad High Court in the case of
Roychan Abraham v. State of U.P., AIR 2019 All 96, after taking into
consideration various decisions of this Court, held as under:-
F “38. Even if it be assumed that an educational institution is
imparting public duty, the act complained of must have direct
nexus with the discharge of public duty. It is undisputedly a
public law action which confers a right upon the aggrieved
to invoke extraordinary writ jurisdiction under Article 226 for
a prerogative writ. Individual wrongs or breach of mutual
G contracts without having any public element as its integral
part cannot be rectified through petition under Article
226. Wherever Courts have intervened in exercise of
jurisdiction under Article 226, either the service conditions
were regulated by statutory provisions or the employer had
the status of ‘State’ within the expansive definition
H
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 331
BHARGAVA [J. B. PARDIWALA, J.]
under Article 12 or it was found that the action complained A
of has public law element.”
(Emphasis supplied)
47. We may refer to and rely upon one order passed by this Court
in 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 which B
the dispute was one relating to the retirement age of a teacher working
in an unaided institution. This Court, while dismissing the appeal preferred
by the employee, held as under:-
“Both the petitions were dismissed by the learned single
Judge on the ground that no writ would lie against unaided C
private institutions and the writ petitions were not
maintainable.
Aggrieved thereby, writ appeals have been filed before the
Division Bench without any result. The Division Bench held
that the writ petitions are not maintainable against a private D
institute. Aggrieved thereby, these appeals have been filed.
Counsel for the appellant relied on a decision rendered by
this Court in K. Krishnamacharyulu & Ors. Vs. Sri
Venkateswara Hindu College of Engineering & Anr., (1997)
3 SCC 571. He particularly relied on the observation made E
by this Court in paragraph 4 of the order that when an element
of public interest is created and the institution is catering to
that element, the teacher, being the arm of the institution, is
also entitled to avail of the remedy provided under Article
226. F
This Court in Sushmita Basu & Ors. Vs. Ballygunge Siksha
Samity & Ors., (2006) 7 SCC 680 in which one of us (Sema,
J.) is a party, after considering the aforesaid judgment has
distinguished the ratio by holding that the writ under Article
226 of the Constitution against a private educational institute
G
would be justified only if a public law element is involved
and if it is only a private law remedy no writ petition would
lie. In the present cases, there is no question of public law
element involved inasmuch as the grievances of the appellants
are of personal nature. We, accordingly, hold that writ petitions
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332 SUPREME COURT REPORTS [2022] 8 S.C.R.
A are not maintainable against the private institute. There is no
infirmity in the order passed by the learned single Judge and
affirmed by the Division Bench. These appeals are devoid of
merit and are, accordingly, dismissed. No costs.”
(Emphasis supplied)
B 48. We may also refer to and rely upon the decision of this Court
in the case of Vidya Ram Misra v. The Managing Committee Shri
Jai Narain College, (1972) 1 SCC 623 : AIR 1972 SC 1450. The
appellant therein filed a writ petition before the Lucknow Bench of the
High Court of Allahabad challenging the validity of a resolution passed
C by the Managing Committee of Shri Jai Narain College, Lucknow, an
associated college of the Lucknow University, terminating his services
and praying for issue of an appropriate writ or order quashing the
resolution. A learned single Judge of the High Court finding that in
terminating the services, the Managing Committee acted in violation of
the principles of natural justice, quashed the resolution and allowed the
D writ petition. The Managing Committee appealed against the order. A
Division Bench of the High Court found that the relationship between
the college and the appellant therein was that of master and servant and
that even if the service of the appellant had been terminated in breach of
the audi alteram partem rule of natural justice, the remedy of the appellant
E was to file a suit for damages and not to apply under Article 226 of the
Constitution for a writ or order in the nature of certiorari and that, in
fact, no principle of natural justice was violated by terminating the services
of the appellant. The writ petition was dismissed. In appeal, this Court
upheld the decision of the High Court holding that the Lecturer cannot
have any cause of action on breach of the law but only on breach of the
F contract, hence he has a remedy only by way of suit for damages and
not by way of writ under Article 226 of the Constitution. In Vidya Ram
Misra (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 of
G service embodies in Clause 8(vi)(a) of the ‘College Code’ had
the force of law apart from the contract and conferred rights
on the appellant there, here the terms and conditions mentioned
in Statute 151 have no efficacy, unless they are incorporated
in a contract. Therefore, appellant cannot found a cause of
H action on any breach of the law but only on the breach of the
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 333
BHARGAVA [J. B. PARDIWALA, J.]
contract. As already indicated, Statute 151 does not lay down A
any procedure for removal of a teacher to be incorporated in
the contract. So, Clause 5 of the contract can, in no event,
have even statutory flavour and for its breach, the appellant’s
remedy lay elsewhere.
13. Besides, in order that the third exception to the general B
rule that no writ will lie to quash an order terminating a
contract 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 of
a statutory body acting in breach of a mandatory obligation
imposed by a statute. The college, or the Managing Committee C
in question, is not a statutory body and so the argument of
Mr. Setalvad that the case in hand will fall under the third
exception cannot be accepted. The contention of counsel that
this Court has sub-silentio sanctioned the issue of a writ under
Article 226 to quash an order terminating services of a teacher D
passed by a college similarly situate in Prabhakar
Ramakrishna Jodh (supra), and, therefore, the fact that the
college or the Managing Committee was not a statutory body
was no hindrance to the High Court issuing the writ prayed
for by the appellant has no merit as this Court expressly stated
in the judgment that no such contention was raised in the E
High Court and so it cannot be allowed to be raised in this
Court.”
49. In the case on hand, the facts are similar. Rule 26(1) of the
Affiliation Byelaws, framed by the CBSE, provides that each school
affiliated with the Board shall frame Service Rules. Sub-rule (2) of it F
provides that a service contract will be entered with each employee as
per the provision in the Education Act of the State/U.T. or as given in
the Appendix III, if not obligatory as per the State Education Act. These
rules also provide procedures for appointments, probation, confirmation,
recruitment, attendance representations, grant of leave, code of conduct, G
disciplinary procedure, penalties, etc. The model form of contract of
service, to be executed by an employee, given in Appendix III, lays
down that the service, under this agreement, will be liable to disciplinary
action in accordance with the Rules and Regulations framed by the school
from time to time. Only in case where the post is abolished or an employee
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334 SUPREME COURT REPORTS [2022] 8 S.C.R.
A intends 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 particular
procedure for dismissal or removal of a teacher for being incorporated
in the contract. Nor does the model form of contract given in the Appendix
III lays down any particular procedure for that purpose. On the contrary,
the disciplinary action is to be taken in accordance with the Rules and
B
Regulations framed by the school from time to time.
50. On a plain reading of these provisions, it becomes clear that
the terms and conditions mentioned in the Affiliation Byelaws may be
incorporated in the contract to be entered into between the school and
the employee concerned. It does not say that the terms and conditions
C have 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 in
the Chapter VII of the Affiliation Byelaws have no force of law. They
become terms and conditions of service only by virtue of their being
incorporated in the contract. Without the contract they have no vitality
D and can confer no legal rights. The terms and conditions mentioned in
the Affiliation Byelaws have no efficacy, unless they are incorporated in
a contract. In the absence of any statutory provisions governing the
services of the employees of the school, the service of the respondent
no. 1 was purely contractual. A contract of personal service cannot be
enforced specifically. Therefore, the respondent no. 1 cannot find a cause
E of 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 the
writ is maintainable.
51. Thus, the aforesaid order passed by this Court makes it very
clear that in a case of retirement and in case of termination, no public
F law element is involved. This Court has held that a writ under Article
226 of the Constitution against a private educational institution shall be
maintainable only if a public law element is involved and if there is no
public law element is involved, no writ lies.
52. In T.M.A. Pai Foundation v. State of Karnataka, (2002) 8
G SCC 481, an eleven-Judge Bench of this Court formulated certain points
in fact to reconsider its earlier decision in the case of Ahmedabad St.
Xavier’s College Society v. State of Gujarat, (1974) 1 SCC 717, and
also the case of Unnikrishnan P.J. v. State of A.P., reported in (1993)
4 SCC 111, regarding the “right of the minority institution including
H administration of the student and imparting education vis-à-vis the right
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 335
BHARGAVA [J. B. PARDIWALA, J.]
of administration of the non-minority student”. In the said case, very A
important points arose as follows:-
“5. (c) Whether the statutory provisions which regulate the
facets of administration like control over educational
agencies, control over governing bodies, conditions of
affiliation including recognition/withdrawal thereof, and B
appointment of staff, employees, teachers and principals
including 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 of
administration are concerned, in case of an unaided minority C
educational institution, the regulatory measure of control
should be minimal and the conditions of recognition as well
as conditions of affiliation to a university or board have to
be complied with, but in the matter of day-to-day management,
like appointment of staff, teaching and non-teaching and
administrative control over them, the management should have D
the freedom and there should not be any external controlling
agency. However, a rational procedure for selection of
teaching staff and for taking disciplinary action has to be
evolved by the management itself. For redressing the
grievances of such employees who are subjected to punishment E
or termination from service, a mechanism will have to be
evolved and in our opinion, appropriate tribunals could be
constituted, and till then, such tribunal could be presided over
by a judicial officer of the rank of District Judge. The State
or other controlling authorities, however, can always prescribe
the minimum qualifications, salaries, experience and other F
conditions bearing on the merit of an individual for being
appointed as a teacher of an educational institution.
Regulations can be framed governing service conditions for
teaching and other staff for whom aid is provided by the State
without interfering with overall administrative control of G
management over the staff, government/ university
representative can be associated with the Selection Committee
and the guidelines for selection can be laid down. In regard
to unaided minority educational institutions such regulations,
which will ensure a check over unfair practices and general
welfare of teachers could be framed.” H
336 SUPREME COURT REPORTS [2022] 8 S.C.R.
A 53. We now procced to look into the two decisions of this Court in
the cases of Ramesh Ahluwalia (supra) and Marwari Balika
Vidhyalaya (supra) resply.
54. In Ramesh Ahluwalia (supra), the appellant therein was
working as an administrative officer in a privately run educational
B institution and by way of disciplinary proceedings, was removed from
service by the managing committee of the said educational institution. A
writ petition was filed before the learned single Judge of the High Court
challenging the order of the disciplinary authority wherein he was removed
from service. The writ petition was ordered to be dismissed in limine
holding that the said educational institution being an unaided and a private
C school managed by the society cannot be said to be an instrument of the
State. The appeal before the Division Bench also came to be dismissed.
The matter travelled to this Court. The principal argument before this
Court was in regard to the maintainability of the writ petition against a
private educational institution. It was argued on the behalf of the appellant
D therein that although a private educational institution may not fall within
the definition of “State” or “other authorities/ instrumentalities” of the
State under Article 12 of the Constitution, yet a writ petition would be
maintainable as the said educational institution could be said to be
discharging public functions by imparting education. However, the learned
counsel for the educational institution therein took a plea before this
E Court that while considering whether a 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 of
the government. It was further argued that if the control is merely
regulatory either under a statute or otherwise, it would not ipso facto
F make the body “State” within Article 12 of the Constitution. On the
conspectus of the peculiar facts of the case and the submissions
advanced, this Court held that a writ petition would be maintainable if a
private educational institution discharges public functions, more
particularly imparting education. Even by holding so, this Court declined
to extend any benefits to the teacher as the case involved disputed
G questions 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 decisions
of this Court in K. Krishnamacharyulu (supra), Federal Bank (supra),
Sushmita Basu v. Ballygunge Siksha Samity, (2006) 7 SCC 680, and
H
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 337
BHARGAVA [J. B. PARDIWALA, J.]
Committee of Management, Delhi Public School v. M.K. Gandhi A
(supra).
56. In Marwari Balika Vidhyalaya (supra), this Court followed
Ramesh Ahluwalia (supra) referred to above.
57. We may say without any hesitation that the respondent No. 1
herein cannot press into service the dictum as laid down by this Court in B
the case of Marwari Balika Vidhyalaya (supra) as the said case is
distinguishable. The most important distinguishing feature of the case of
Marwari Balika Vidhyalaya (supra) is that in the said case the removal
of the teacher from service was subject to the approval of the State
Government. The State Government took a specific stance before this C
Court that its approval was required both for the appointment as well as
removal of the teacher. In the case on hand, indisputably the government
or any other agency of the government has no role to play in the
termination of the respondent No. 1 herein.
58. In context with Marwari Balika Vidhyalaya (supra), we D
remind ourselves of the Byelaw 49(2) which provides that no order with
regard to the imposition of major penalty shall be made by the disciplinary
authority except after the receipt of the approval of the disciplinary
committee. Thus unlike Marwari Balika Vidhyalaya (supra) where
approval was required of the State Government, in the case on hand the
approval is to be obtained from the disciplinary committee of the institution. E
This distinguishing feature seems to have been overlooked by the High
Court while passing the impugned order.
59. In Marwari Balika Vidhyalaya (supra), the school was
receiving grant-in-aid to the extent of dearness allowance. The
appointment and the removal, as noted above, is required to be approved F
by the District Inspector of School (Primary Education) and, if any action
is taken dehors such mandatory provisions, the same would not come
within the realm of private element.
60. In Trigun Chand Thakur (supra), the appellant therein was
appointed as a Sanskrit teacher and a show cause notice was issued G
upon him on the ground that he was absent on the eve of the
Independence day and the Teachers day which resulted into a dismissal
order passed by the Managing Committee of the private school. The
challenge was made by filing a writ petition before the High Court which
was dismissed on the ground that the writ petition is not maintainable
H
338 SUPREME COURT REPORTS [2022] 8 S.C.R.
A against an order terminating the service by the Managing Committee of
the private school. This Court held that even if the private school was
receiving a financial aid from the Government, it does not make the said
Managing Committee of the school a “State” within the meaning of Article
12 of the Constitution of India.
B 61. Merely because a writ petition can be maintained against the
private individuals discharging the public duties and/or public functions,
the same should not be entertained if the enforcement is sought to be
secured under the realm of a private law. It would not be safe to say that
the moment the private institution is amenable to writ jurisdiction then
every dispute concerning the said private institution is amenable to writ
C jurisdiction. It largely depends upon the nature of the dispute and the
enforcement of the right by an individual against such institution. The
right which purely originates from a private law cannot be enforced
taking aid of the writ jurisdiction irrespective of the fact that such
institution is discharging the public duties and/or public functions. The
D scope of the mandamus is basically limited to an enforcement of the
public duty and, therefore, it is an ardent duty of the court to find out
whether the nature of the duty comes within the peripheral of the public
duty. There must be a public law element in any action.
62. Our present judgment would remain incomplete if we fail to
E refer to the decision of this Court in the case of Ramakrishnan Mission
v. Kago Kunya, (2019) 16 SCC 303. In the said case this Court
considered all its earlier judgments on the issue. The writ petition was
not found maintainable against the Mission merely for the reason that it
was found running a hospital, thus discharging public functions/public
duty. This Court considered the issue in reference to the element of
F public function which should be akin to the work performed by the State
in its sovereign capacity. This Court took the view that every public
function/public duty would not make a writ petition to be maintainable
against an “authority” or a “person” referred under Article 226 of the
Constitution of India unless the functions are such which are akin to the
G functions of the State or are sovereign in nature. Few relevant paragraphs
of the said judgment are quoted as under for ready reference:-
“17. The basic issue before this Court is whether the functions
performed by the hospital are public functions, on the basis
of which a writ of mandamus can lie under Article 226 of the
H Constitution.
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 339
BHARGAVA [J. B. PARDIWALA, J.]
18. The hospital is a branch of the Ramakrishna Mission and A
is subject to its control. The Mission was established by Swami
Vivekanand, the foremost disciple of Shri Ramakrishna
Paramhansa. Service to humanity is for the organisation co-
equal with service to God as is reflected in the motto “Atmano
Mokshartham Jagad Hitaya Cha”. The main object of the
B
Ramakrishna Mission is to impart knowledge in and promote
the study of Vedanta and its principles propounded by Shri.
Ramakrishna Paramahansa and practically illustrated by his
own life and of comparative theology in its widest form. Its
objects include, inter alia to establish, maintain, carry on
and assist schools, colleges, universities, research institutions, C
libraries, hospitals and take up development and general
welfare activities for the benefit of the underprivileged/
backward/tribal people of society without any discrimination.
These activities are voluntary, charitable and non-profit
making in nature. The activities undertaken by the Mission, a
D
non-profit entity are not closely related to those performed
by the State in its sovereign capacity nor do they partake of
the nature of a public duty.
19. The Governing Body of the Mission is constituted by
members of the Board of Trustees of Ramakrishna Math and
is vested with the power and authority to manage the E
organisation. The properties and funds of the Mission and its
management vest in the Governing Body. Any person can
become a member of the Mission if elected by the Governing
Body. Members on roll form the quorum of the annual general
meetings. The Managing Committee comprises of members F
appointed by the Governing Body for managing the affairs
of the Mission. Under the Memorandum of Association and
Rules and Regulations of the Mission, there is no governmental
control in the functioning, administration and day to day
management of the Mission. The conditions of service of the
employees of the hospital are governed by service rules which G
are framed by the Mission without the intervention of any
governmental body.
20. In coming to the conclusion that the appellants fell within
the description of an authority under Article 226, the High
H
340 SUPREME COURT REPORTS [2022] 8 S.C.R.
A Court placed a considerable degree of reliance on the
judgment of a two-Judge Bench of this Court in Andi Mukta
[Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna
Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC
691]. Andi Mukta [Andi Mukta Sadguru Shree Muktajee
Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v.
B
V.R. Rudani, (1989) 2 SCC 691] was a case where a public
trust was running a college which was affiliated to Gujarat
University, a body governed by the State legislation. The
teachers of the University and all its affiliated colleges were
governed, insofar as their pay scales were concerned, by the
C recommendations of the University Grants Commission. A
dispute over pay scales raised by the association representing
the teachers of the University had been the subject-matter of
an award of the Chancellor, which was accepted by the
government as well as by the University. The management of
the college, in question, decided to close it down without prior
D
approval. A writ petition was instituted before the High Court
for the enforcement of the right of the teachers to receive
their salaries and terminal benefits in accordance with the
governing provisions. In that context, this Court dealt with
the issue as to whether the management of the college was
E amenable to the writ jurisdiction. A number of circumstances
weighed in the ultimate decision of this Court, including the
following:
20.1. The trust was managing an affiliated college.
20.2. The college was in receipt of government aid.
F
20.3. The aid of the government played a major role in the
control, management and work of the educational
institution.
20.4. Aided institutions, in a similar manner as government
G institutions, discharge a public function of imparting
education to students.
20.5. All aided institutions are governed by the rules and
regulations of the affiliating University.
20.6. Their activities are closely supervised by the
H University.
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 341
BHARGAVA [J. B. PARDIWALA, J.]
20.7. Employment in such institutions is hence, not devoid A
of a public character and is governed by the decisions
taken by the University which are binding on the
management.
21. It was in the above circumstances that this Court came to
the conclusion that the service conditions of the academic B
staff do not partake of a private character, but are governed
by a right-duty relationship between the staff and the
management. A breach of the duty, it was held, would be
amenable to the remedy of a writ of mandamus. While the
Court recognised that “the fast expanding maze of bodies
affecting rights of people cannot be put into watertight C
compartments”, it laid down two exceptions where the remedy
of mandamus would not be available : (SCC p. 698, para 15)
“15. If the rights are purely of a private character no
mandamus can issue. If the management of the college is
purely a private body with no public duty mandamus will D
not lie. These are two exceptions to mandamus.”
22. Following the decision in Andi Mukta [Andi Mukta
Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti
Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691],
this Court has had the occasion to re-visit the underlying E
principles in successive decisions. This has led to the evolution
of principles to determine what constitutes a “public duty”
and “public function” and whether the writ of mandamus
would be available to an individual who seeks to enforce her
right. F
25. A similar view was taken in Ramesh Ahluwalia v. State of
Punjab [Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC
331 : (2013) 3 SCC (L&S) 456 : 4 SCEC 715], where a two-
Judge Bench of this Court held that a private body can be
held to be amenable to the jurisdiction of the High Court G
under Article 226 when it performs public functions which
are normally expected to be performed by the State or its
authorities.
26. In Federal Bank Ltd. v. Sagar Thomas [Federal Bank
Ltd. v. Sagar Thomas, (2003) 10 SCC 733], this Court
H
342 SUPREME COURT REPORTS [2022] 8 S.C.R.
A analysed the earlier judgments of this Court and provided a
classification of entities against whom a writ petition may be
maintainable : (SCC p. 748, para 18)
“18. From the decisions referred to above, the position
that emerges is that a writ petition under Article 226 of the
B Constitution of India may be maintainable against (i) the
State (Government); (ii) an authority; (iii) a statutory body;
(iv) an instrumentality or agency of the State; (v) a company
which is financed and owned by the State; (vi) a private
body run substantially on State funding; (vii) a private body
discharging public duty or positive obligation of public
C nature; and (viii) a person or a body under liability to
discharge any function under any statute, to compel it to
perform such a statutory function.”
63. The aforesaid decision of this Court in Ramakrishnan Mission
(supra) came to be considered exhaustively by a Full Bench of the High
D Court 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 called
upon to answer the following question:-
“(i) Whether the element of public function and public duty
inherent in the enterprise that an educational institution
E undertakes, conditions of service of teachers, whose functions
are a sine qua non to the discharge of that public function or
duty, can be regarded as governed by the private law of
contract and with no remedy available under Article 226 of
the Constitution?”
F 64. The Full Bench proceeded to answer the aforesaid question
as under:-
“16. The substance of the discussion made above is that a
writ petition would be maintainable against the authority or
the person which may be a private body, if it discharges public
G function/public duty, which is otherwise primary function of
the State referred in the judgment of the Apex Court in the
case of Ramakrishnan Mission (supra) and the issue under
public law is involved. The aforesaid twin test has to be
satisfied for entertaining writ petition under Article 226 of
the Constitution of India.
H
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 343
BHARGAVA [J. B. PARDIWALA, J.]
17. From the discussion aforesaid and in the light of the A
judgments referred above, a writ petition under Article 226 of
the Constitution would be maintainable against (i) the
Government; (ii) an authority; (iii) a statutory body; (iv) an
instrumentality or agency of the State; (v) a company which
is financed and owned by the State; (vi) a private body run
B
substantially on State funding; (vii) a private body
discharging public duty or positive obligation of public nature;
and (viii) a person or a body under liability to discharge any
function under any statute, to compel it to perform such a
statutory function.
18. There is thin line between “public functions” and “private C
functions” discharged by a person or a private body/authority.
The writ petition would be maintainable only after determining
the nature of the duty to be enforced by the body or authority
rather than identifying the authority against whom it is sought.
19. It is also that even if a person or authority is discharging D
public function or public duty, the writ petition would be
maintainable under Article 226 of the Constitution, if Court
is satisfied that action under challenge falls in the domain of
public law, as distinguished from private law. The twin tests
for maintainability of writ are as follows : E
1. The person or authority is discharging public duty/public
functions.
2. Their action under challenge falls in domain of public
law and not under common law.
F
20. The writ petition would not be maintainable against an
authority or a person merely for the reason that it has been
created under the statute or is to governed by regulatory
provisions. It would not even in a case where aid is received
unless it is substantial in nature. The control of the State is
another issue to hold a writ petition to be maintainable against G
an authority or a person.”
(Emphasis supplied)
65. We owe a duty to consider one relevant aspect of the matter.
Although this aspect which we want to take notice of has not been
H
344 SUPREME COURT REPORTS [2022] 8 S.C.R.
A highlighted by the respondent No.1, yet we must look into the same. We
have referred to the CBSE Affiliation Byelaws in the earlier part of our
judgment. Appendix-IV of the Affiliation Byelaws is with respect to the
minority institutions. Clause 6 of Appendix-IV is with respect to the
disciplinary control over the staff in a minority educational institution.
We take notice of the fact that in Clause 6, the State has the regulatory
B
power to safeguard the interests of their employees and their service
conditions including the procedure for punishment to be imposed. For
the sake of convenience and at the cost of repetition, we quote Clause 6
once again as under:
“6. Disciplinary Control over Staff in Minority Educational
C Institutions: While the managements should exercise the
disciplinary control over staff, it must be ensured that they
hold an inquiry and follow a fair procedure before punishment
is given. With a view to preventing the possible misuse of power
by the management of the Minority Educational Institutions,
D the State has the regulatory power to safeguard the interests
of their employees and their service conditions including
procedure for punishment to be imposed.”
(Emphasis supplied)
66. It could be argued that as the State has regulatory power to
E safeguard the interests of the employees serving with the minority
institutions, any action or decision taken by such institution is amenable
to writ jurisdiction under Article 226 of the Constitution.
67. In the aforesaid context, we may only say that merely because
the State Government has the regulatory power, the same, by itself,
F would not confer any such status upon the institution (school) nor put
any such obligations upon it which may be enforced through issue of a
Writ under Article 226 of the Constitution. In this regard, we may refer
to and rely upon the decision of this Court in the case of Federal Bank
(supra). While deciding whether a private bank that is regulated by the
G Banking Regulation Act, 1949 discharges any public function, this Court
held thus:-
“33. ... in our view, a private company carrying on banking
business as a scheduled bank, cannot be termed as an
institution or a company carrying on any statutory or public
duty. A private body or a person may be amenable to writ
H
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 345
BHARGAVA [J. B. PARDIWALA, J.]
jurisdiction only where it may become necessary to compel A
such body or association to enforce any statutory obligations
or such obligations of public nature casting positive
obligation upon it. We don’t find such conditions are fulfilled
in respect of a private company carrying on a commercial
activity of banking. Merely regulatory provisions to ensure
B
such activity carried on by private bodies work within a
discipline, do not confer any such status upon the company
nor put any such obligation upon it which may be enforced
through issue of a writ under Article 226 of the Constitution.
Present is a case of disciplinary action being taken against
its employee by the appellant Bank. The respondent’s service C
with the Bank stands terminated. The action of the Bank was
challenged by the respondent by filing a writ petition
under Article 226 of the Constitution of India. The respondent
is not trying to enforce any statutory duty on the part of the
Bank.”
D
34. Thus, contracts of a purely private nature would not be
subject to writ jurisdiction merely by reason of the fact that
they are structured by statutory provisions. The only exception
to this principle arises in a situation where the contract of
service is governed or regulated by a statutory provision.
Hence, for instance, in K.K. Saksena [K.K. Saksena v. E
International Commission on 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 a workman
governed by the Industrial Disputes Act, 1947, it constitutes
an exception to the general principle that a contract of F
personal service is not capable of being specifically enforced
or performed.
35. It is of relevance to note that the Act was enacted to provide
for the regulation and registration of clinical establishments
with a view to prescribe minimum standards of facilities and G
services. The Act, inter alia, stipulates conditions to be satisfied
by clinical establishments for registration. However, the Act
does not govern contracts of service entered into by the
hospital with respect to its employees. These fall within the
ambit of purely private contracts, against which writ
H
346 SUPREME COURT REPORTS [2022] 8 S.C.R.
A jurisdiction cannot lie. The sanctity of this distinction must
be preserved.”
(Emphasis supplied)
68. We may sum up our final conclusions as under:-
B (a) An application under Article 226 of the Constitution is
maintainable against a person or a body discharging public duties or
public functions. The public duty cast may be either statutory or otherwise
and where it is otherwise, the body or the person must be shown to owe
that duty or obligation to the public involving the public law element.
Similarly, for ascertaining the discharge of public function, it must be
C established that the body or the person was seeking to achieve the same
for the collective benefit of the public or a section of it and the authority
to do so must be accepted by the public.
(b) Even if it be assumed that an educational institution is imparting
public duty, the act complained of must have a direct nexus with the
D discharge of public duty. It is indisputably a public law action which
confers a right upon the aggrieved to invoke the extraordinary writ
jurisdiction under Article 226 for a prerogative writ. Individual wrongs
or breach of mutual contracts without having any public element as its
integral part cannot be rectified through a writ petition under Article
E 226. Wherever Courts have intervened in their exercise of jurisdiction
under Article 226, either the service conditions were regulated by the
statutory provisions or the employer had the status of “State” within the
expansive definition under Article 12 or it was found that the action
complained of has public law element.
F (c) It must be consequently held that while a body may be
discharging a public function or performing a public duty and thus its
actions becoming amenable to judicial review by a Constitutional Court,
its employees would not have the right to invoke the powers of the High
Court conferred by Article 226 in respect of matter relating to service
where they are not governed or controlled by the statutory provisions.
G An educational institution may perform myriad functions touching various
facets of public life and in the societal sphere. While such of those
functions as would fall within the domain of a “public function” or “public
duty” be undisputedly open to challenge and scrutiny under Article 226 of
the Constitution, the actions or decisions taken solely within the confines
of an ordinary contract of service, having no statutory force or backing,
H
ST. MARY’S EDUCATION SOCIETY v. RAJENDRA PRASAD 347
BHARGAVA [J. B. PARDIWALA, J.]
cannot be recognised as being amenable to challenge under Article 226 of A
the Constitution. In the absence of the service conditions being controlled
or governed by statutory provisions, the matter would remain in the realm
of an ordinary contract of service.
(d) Even if it be perceived that imparting education by private
unaided the school is a public duty within the expanded expression of the B
term, an employee of a non-teaching staff engaged by the school for the
purpose of its administration or internal management is only an agency
created by it. It is immaterial whether “A” or “B” is employed by school
to discharge that duty. In any case, the terms of employment of contract
between a school and non-teaching staff cannot and should not be
construed to be an inseparable part of the obligation to impart education. C
This is particularly in respect to the disciplinary proceedings that may be
initiated against a particular employee. It is only where the removal of
an employee of non-teaching staff is regulated by some statutory
provisions, its violation by the employer in contravention of law may be
interfered by the court. But such interference will be on the ground of D
breach of law and not on the basis of interference in discharge of public
duty.
(e) From the pleadings in the original writ petition, it is apparent
that no element of any public law is agitated or otherwise made out. In
other words, the action challenged has no public element and writ of E
mandamus cannot be issued as the action was essentially of a private
character.
69. In view of the aforesaid discussion, we hold that the learned
single Judge of the High Court was justified in taking the view that the
original writ application filed by the respondent No. 1 herein under Article F
226 of the Constitution is not maintainable. The Appeal Court could be
said to have committed an error in taking a contrary view.
70. In view of the aforesaid, this appeal succeeds and is hereby
allowed. The impugned judgment and order passed by the Division Bench
of the High Court in the Writ Appeal No. 485 of 2017 is set aside. The G
writ application accordingly stands rejected on the ground of its
maintainability. It is needless to clarify that it shall be open to the
respondent No. 1 herein to take up the issue with the CBSE itself or the
State or may avail any other legal remedy available to him in accordance
with law. We clarify that we have otherwise not expressed any opinion
on the merits of the case. H
348 SUPREME COURT REPORTS [2022] 8 S.C.R.
A 71. There shall be no order as to costs.
72. Pending application, if any, also stands disposed of.
Ankit Gyan Appeal allowed.
(Assisted by : Aarsh Choudhary, LCRA)
B
C
D
E
F
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