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

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5789 OF 2022

(Arising out of S.L.P. (Civil) No. 1118 of 2022)

ST. MARY’S EDUCATION SOCIETY & ANR. ……APPELLANTS

VERSUS

RAJENDRA PRASAD BHARGAVA & ORS. ......RESPONDENTS

J U D G M E N T

J.B. PARDIWALA, J. :

1. Leave granted.

2. This appeal is at the instance of a private unaided

minority 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 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:

(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 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?

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. 1Society runs a private unaided

educational institution. The appellant No. 2 is the disciplinary

committee constituted by the appellant No. 1Society for the

purpose of its internal management. 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 noticecumsuspension order dated 08.09.2014 was issued by the

appellant No. 1 herein to the respondent No.1 for the various

alleged misconduct in 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 IThat, you refused to receive and deposit the PTA fund

from the lady teachers of the school on 4th 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 misconduct and dereliction of your duty

and act subversive of discipline.

ChargeIIThat, you are in habit of writing unwarranted letters to

different authorities against the Principal of the school

using very disrespectful, derogatory and offensive

language, making false accusation which is spoiling the

image and reputation of this school.

ChargeIIIThat, 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 from 1st to

th September and 9th to 30th 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).

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.

ChargeIVThat 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 namely: (1) Sr. Lalita (Letter dated

17.04.2009) and (2) Sr. Flavia.

ChargeVThat, you were threatening the institution by writing to

the President of our country that if something happens to

you 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.

ChargeVIThat, 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 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 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.

8. In view of the aforesaid, the respondent No. 1 invoked the

writ 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

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)

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 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.

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 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 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 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 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

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 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 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 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 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. The Division

Bench, while allowing the appeal filed by the respondent 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 (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

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. 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.”

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.

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 allgirls 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 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

NonTeaching Staff. The appellant No. 1Society 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. CBSEi AFFILIATION BYELAWS

Chapter I

1. Short Title and Definitions:

1. These Byelaws shall be called Central Board of

Secondary Education – International Affiliation Byelaws.

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 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:

(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.

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

appropriate Government or a local authority;

(ii) an aided school receiving aid or grants to meet whole

or 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 local authority.

Chapter6

23. Powers and functions of the School Managing

Committee:

(xi) It shall exercise powers to take disciplinary action

against 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.

Chapter 7

Service Rules for Employees:

26. Short Title:

(1) Each school affiliated/ to be affiliated with the Board

shall 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 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:

(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

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 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:

(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, 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;

(ii) Head of the School;

(iii) an educationist, nominated by the managing

committee; and

(iv) a subject expert

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;

(iii) Manager/ Correspondent of the School

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

staff/ housekeeping staff:

(i) Head of the school;

(ii) A nominee of School Managing Committee.

(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

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

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 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 Chapter7 prescribes that every

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:

Suspension

1. The School Managing Committee may place an

employee under suspension where:

a. The disciplinary proceedings against her are

contemplated or pending.

b. A case against her in respect of any criminal offence is

under investigation or trial;

c. She is charged with embezzlement;

d. She is charged with cruelty / physical punishment or

mental harassment towards any student or any employee of

the school.

e. She is charged with misbehavior towards any parent,

guardian student or employee of the school;

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

Conduct.

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:

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 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 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 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:

(i) furnish to the employee a copy of the report of the

enquiry 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 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

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 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 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.

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:

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.

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

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

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 AppendixIV

reads 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 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.”

(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. 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 intracourt appeal ought not to have taken the view that

the writ petition under Article 226 of the Constitution at the

instance of the respondent No. 1 herein was maintainable

before the learned single Judge.

18. Mr. Pai would submit that the Division Bench of the High

Court misdirected itself by relying upon the two decisions of

this Court rendered in the cases of Ramesh Ahluwalia (supra)

and Marwari Balika Vidhyalaya (supra).

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;

(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

sought relief only against the two orders of

termination and both of which have been

passed 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 NO. 1

21. The respondent No. 1 herein appeared virtually inperson. 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 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 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, 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:

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.”

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 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 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.

Kindly read page No. 76 and 77 of Reply to the SLP

(Annexure R2 Ramesh Ahluwalia case reported in

(2012) 12 SCC 331).

2. Kindly read Para 20 on page No. 89, Para 21 on

page No. 8990 and Para 22 on page No. 90 of Reply to

the SLP (Annexure R3 Andi Mukta case reported in

1989 AIR 1607) (1989) 2 SCC 691

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

Kindly read Para 15 on page No. 97, 98 and 99 of Reply

to the SLP (Annexure R4 Marwari Balika Vidhyalya

Case reported in (2020) 14 SCC 449.

4. Kindly read page No. 49 of SLP (Annexure P5

Yogendra Singh Dhakad versus Delhi Public School

Society, 2014 SCC Online MP 162: AIR 2014 (NOC

580) 211.”

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 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 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.

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.”

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 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 be set aside;

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;

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 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 GrantinAid from the State 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.

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 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 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 single Judge was maintainable and should

have been entertained on its own merits.

ANALYSIS

26. Having heard the learned counsel appearing for the

appellants and the respondent No. 1 inperson and also having

considered the materials on record, we now proceed to answer

the two pivotal issues 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 grantinaid from 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 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 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.

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 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 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 fountainhead

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

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 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 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 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 not itself create an enforceable

right to an aggrieved party against the Management by a

teacher on the ground of breach or noncompliance 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 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 of breach or noncompliance of any of the rules."

32. In Km. Anita Verma v. D.A.V. College Management

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 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 Byelaws

framed by the C.B.S.E. has no statutory 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 Affiliation Byelaws 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 Byelaws by the institution.”

33. Thus, where a teacher or nonteaching staff challenges

action 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

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 [(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 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, 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, 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 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 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, 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

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;

(ii) when such an employee is employed by an

authority/ body 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 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 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 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

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 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 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:

"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 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 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 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 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 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 preeminently a public

law remedy and is not generally available as a

remedy against private 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 writ could also be issued

against any private body or person, 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 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, it is difficult to distinguish

between public law and private law remedies.”

(Emphasis supplied)

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

“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 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)

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.

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 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.

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

& 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.

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

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:

“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

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 under Article 12 or it was

found that the action complained 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. 87838784 of 2003

dated July 19, 2007, in which 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 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 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 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.

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 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 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)

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 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 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 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 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 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

action on any breach of the law but only on the breach

of the contract. As already indicated, Statute 151 does

not lay down 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 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 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 subsilentio sanctioned the

issue of a writ under Article 226 to quash an order

terminating services of a teacher 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 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. Subrule (2) of it 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, 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 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

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 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 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 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 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 SCC 481, an elevenJudge 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 administration of the student and imparting

education visàvis the right of administration of the nonminority student”. In the said case, very 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

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 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 daytoday management, like appointment of

staff, teaching and nonteaching and administrative

control over them, the management should have 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 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 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 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.”

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 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 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 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 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 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

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 Committee of

Management, Delhi Public School v. M.K. Gandhi (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 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 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

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. 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 grantinaid to the extent of dearness allowance. The

appointment and the removal, as noted above, is required to be

approved 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 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 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.

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 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

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 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 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

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 Constitution.

18. The hospital is a branch of the Ramakrishna Mission

and 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 coequal with service to God as is

reflected in the motto “Atmano Mokshartham Jagad

Hitaya Cha”. The main object of the 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, 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 nonprofit making in nature.

The activities undertaken by the Mission, a nonprofit

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 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 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 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 Court placed a considerable degree of reliance

on the judgment of a twoJudge 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. 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 recommendations of the

University Grants Commission. A dispute over pay

scales raised by the association representing the

teachers of the University had been the subjectmatter 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 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

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.

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 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 University.

20.7. Employment in such institutions is hence,

not devoid 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 staff do not partake of a private

character, but are governed by a rightduty

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

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 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 revisit

the underlying 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.

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 twoJudge Bench of this Court held that a

private body can be held to be amenable to the

jurisdiction of the High Court 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

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 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 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 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 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?”

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 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.

17. From the discussion aforesaid and in the light of the

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 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 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 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 :

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.

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 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 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. AppendixIV of the

Affiliation Byelaws is with respect to the minority institutions.

Clause 6 of AppendixIV 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 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 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,

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 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, 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

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 jurisdiction only where it may

become necessary to compel 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 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 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."

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. 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

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 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

jurisdiction cannot lie. The sanctity of this distinction

must be preserved." (Emphasis supplied)

68. We may sum up our final conclusions 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

nonteaching 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 nonteaching 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 nonteaching 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.

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 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 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.

71. There shall be no order as to costs.

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

………………………………………..J.

(ANIRUDDHA BOSE)

………………………………………..J.

(J.B. PARDIWALA)

NEW DELHI;

AUGUST 24, 2022

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