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 minority educational institution – The respondent no.1 was an employee of appellant – The appellant issued a show cause noticecum-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 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 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 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 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 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,
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 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 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 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 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 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 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, cannot be recognised as 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 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 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 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 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; 347A-E] Marwari Balika Vidhyalaya v. Asha Shrivastaga, (2020)
14 SCC 449 : [2019] 2 SCR 722 – distinguished.
Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC
331 : [2012] 12 SCR 315; Executive Committee 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 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 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
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
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., (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 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. State of A.P., (1993) 4 SCC 111 : 1993 (3) SCALE 248;, 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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