Vatsal Gupta Thru His Father vs State Of U.P. Thru ...
2015 Latest Caselaw 3291 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Judgment Reserved:04.09.2015. 
 
Judgment Delivered:16.10.2015
 
Court No. - 10
 

 
Case :- MISC. SINGLE No. - 4229 of 2015
 

 
Petitioner :- Vatsal Gupta Thru His Father
 
Respondent :- State Of U.P. Thru Prin.Secy.Secondary Edu.Govt.Of Up & Ors.
 
Counsel for Petitioner :- Ramesh Pandey,Manushresth Misra,Pankaj Kumar Shukla
 
Counsel for Respondent :- C.S.C.,Altaf Mansoor,H A B Sinha,Kirti Srivastava,Pratik J. Nagar
 

 
Hon'ble Rajan Roy,J.

This writ petition has been filed by a student through his father aged about 17 years, being aggrieved by the action of opposite party no.9 i.e. Principal La Martiniere College, Lucknow declining him admission in standard XI. By means of this petition the petitioner has sought a writ of certiorari quashing the reply dated 21.06.2015 submitted by the Principal to the District inspector of Schools Anglo India Schools, Lucknow and has also sought a writ of mandamus commanding the respondents to admit him in standard XI (Science-Biology stream) of La Martiniere College, Lucknow for the academic session 2015-16 and specifically to the District Magistrate, Lucknow for taking necessary action in the matter in accordance with law.

The petitioner herein indisputably has studied for the last 13 years in the La Martiniere College Lucknow i.e. from Nursery to standard X. When admissions to standard XI were being made, the case of the petitioner was also considered on submission of requisite admission form and ultimately the same was declined as is borne out from the counter affidavit and from the submissions made at the Bar. The admission was declined on account of reservations of the father of the student with regard to his participation in certain activities of the school which form part of the extra curricular activities and according to the college were necessary for over all development of the child.

During the course of argument Sri Jai Deep Narain Mathur, learned Senior Advocate assisted by Sri Altaf Mansoor submitted that all along the father of the petitioner did not get along with the teachers of the school who are veritably perturbed by his attitude towards them, it was also said that some complaint had also been made by him to the District Magistrate in the year 2008 with regard to certain activities in the institution. Considering all this, the Principal of the College undertook a consultative process with the teachers for admission of the students in class XI and it was ultimately decided not to give admission to the petitioner-student.

The school has fairly stated that they do not have any grievance as regards the conduct, behaviour and studies of the concerned student but the problem was with the father.

The contention of Sri Ramesh Pandey learned counsel for petitioner is that having studied in the school for last 13 years and having secured about 89% marks in standard X there was no justifiable reason for the school for not granting admission to the petitioner in class XI. Not taking admission of the petitioner in standard XI is an act of high handedness and arbitrariness. The father of the petitioner approached the District Magistrate who ordered an enquiry into the matter wherein it was found that the Principal had acted in a high handed and arbitrary manner, therefore, an explanation was called from the School and directions were also issued to admit the student but the Principal of the school had adopted an intransigent attitude and declined to admit the student citing the minority status of the school and stating that admission to standard XI was not a matter of automatic promotion and it was the discretion of the Principal to admit or deny admission to a student in standard XI which according to petitioner was arbitrary in nature and hit by Article 14 of the Constitution. The direction of District Authorities had also been ignored by the Principal. Sri Pandey relied upon various decisions in support of his case; namely, Ramesh Ahluwalia vs State of Punjab and others reported in (2012) 12 SCC 331, K. Krishnamacharyulu and others vs. Sri Venkateswara Hindu College of Engineering and another reported in (1997) 3 SCC 571, Board of Control for Cricket in India vs. Cricket Association of Bihar and others reported in (2015) 3 SCC 251, Zee Telefilms Ltd. And another vs. Union of India and others reported in (2005) 4 SCC 649, Islamic Academy of Education and another vs State of Karnataka and others reported in (2003)6 SCC 697 and T.M.A. Pai Foundation and others vs. State of Karnataka and others reported in (2002) 8 SCC 481.

Sri Jai Deep Narain Mathur learned Senior Advocate appearing for opposite parties 8 and 9 submitted that the school was a private minority unaided institution. The admissions upto standard X were as a matter of right as they were in the nature of promotion from lower standard to the higher standard. As far as the admission to standard XI was concerned, it was not as a matter of right as it was not a promotion but was a fresh admission and fresh admission forms were required to be submitted. While taking a decision regarding admission in standard XI the Principal of the school undertook a consultative process with the teachers wherein the conduct, behaviour and assessment of record of the student as also their guardians was considered. In the case of the petitioner it was found that the teachers were unwilling rather adamant not to have to do anything with the father of the student who had been causing enormous problem not on one or two occasions but regularly . He had problems with the ethos of the College and was not able to come to terms with it. He did not want his ward to participate in extra curricular activities which were necessary for the over all development of the student.

Learned counsel also submitted that it was not the petitioner alone but several students who had passed standard X from the institution and had been studying for long who had been denied admission to standard XI. One of the students had secured 97% marks, yet he was denied admission.

Initially Sri Mathur had asserted the minority status of the school as one of the grounds of defence. Subsequently on certain queries being put as regards the establishment of the school and its management and after filing the rejoinder affidavit by the petitioner wherein he did not join issue on this point, Sri Mathur made a statement at Bar that irrespective of the stand taken in the counter affidavit and in the impugned letter as regards the minority status of the institution, he would not like to have an adjudication on the said issue in these proceedings, as, according to him the status of the school as a private un-aided institution itself was sufficient to defend the impugned action. On the question of minority status of the college there was much to be debated considering the manner in which the school was established and its existing management, however in deference to the statement made by Sri Mathur, this Court desists from considering the said issue, leaving it open for consideration in some other case.

In support of his contention especially on the question of the maintainability of the petition. Sri Mathur placed reliance on various decisions reported in the case of M.K. Gandhi and others vs. Director of Education (Secondary), U.P. Lucknow and others reported in (2005) 3 UPLBEC 2187, Andi Mukta Satguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others vs. V.R. Rudani and others reported in 1989 2 SCC 691 and K.K. Saxena vs. International Commission on Irrigation and drainage reported in (2015) 1 SCC 369. He also relied upon certain other decisions on the issue of minority status, however, as he let go the said defence, therefore, it is not necessary to refer to the same.

The first and foremost question which arises for consideration in this case is regarding maintainability of writ petition seeking a writ of certiorari as also a writ of mandamus against a private un-aided institution, under Article 226 of the Constitution.

It is not disputed that the school in question is a private un-aided institution. The question of maintainability of a writ petition against such institution came up for consideration before the Supreme Court in the case of Andi Mukta(supra). Paragraphs 14,15,20 and 22 of the said pronouncement are relevant for the purpose, which are being reproduced below:-

"14. But here the facts are quite different and, therefore, we need not go thus far. There is no plea for specific performance of contractual service. The respondents are not seeking a declaration that they be continued in service. They are not asking for mandamus to put them back into the college. They are claiming only the terminal benefits and arrears of salary payable to them. The question is whether the trust can be compelled to pay by a writ of mandamus?"

"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. But once these are absent and when the party has no other equality convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants-trust was managing the affiliated college to which public money is paid as government aid. Public money paid as government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super aided protection by University decisions creating a legal right duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.

"20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owned by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.

"22. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: "to be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by character, common law, custom or even contract." We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. 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. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition."

From a perusal of the aforesaid judgment it is evident that the college was an aided institution. This fact is mentioned in paragraph 15 thereof.

The aforesaid pronouncement of Supreme court came up for consideration before the full Bench of this Court in the case of M.K. Gandhi (supra) wherein the question of maintainability of writ petition under Article 226 of the Constitution against a private school i.e. Delhi Public School, was considered and their Lordships opined as under:-

"36. Is a writ petition maintainable for:

.    violation of the bye-laws that do not have statutory force?
 
.    enforcement of a private contract between the school and teacher?
 
We are afraid, our answer has to be in the negative. The Full Bench of our Court in Aley Ahmad Abidi vs. District Inspector of Schools, AIR 1977 Allahabad 539 (The Aley Abidi Case), has held that 
 
"The Committee of Management of an intermediate College is not a statutory body. Nevertheless, a writ petition filed against it is maintainable if such petition is for enforcement of performance of any legal obligations or duties imposed on such committee by a statue."
 

"37. The Committee of Management of the DPS School is recognized by the Board But it is neither a statutory body nor a State with the meaning of Article 12. The legal obligation or duty on the DPS School is neither imposed by any statute nor by any statutory provision; it has been imposed by the affiliation bye-laws and agreement which is a contract between the parties and non-statutory. In view of this the writ petition is not maintainable against the DPS School for violation of the affiliation of bye-laws.

"44. In the Anadi Trust case there was dispute between the teachers and the management regarding pay scales. This dispute was referred to the Chancellor. ?The Chancellor gave an award which was in favour of the teachers. This award was accepted by the State Government. The management refused to pay the higher pay scale and closed down the school. The teachers then, filed a writ for the salary of the period taught by them and post retirement benefit for the salary of the period that they had worked. This writ petition was not for the specific performance of the contract of service; it was for payment of salary for service already rendered. There was already a statutory order in favour of the teachers. It is in this light that the Supreme court held that the writ petition to be maintainable."

The Full Bench considered paragraphs 14 and 15 in Anadi Mukata (supra) case which have been been quoted in paragraph 44 and 45 of its judgment which need not be reproduced herein as the same have already been quoted hereinabove. Paragraph 46 of Anadi Mukta is reproduced as under:-

"46. However, the aforesaid observation in the Anadi Trust case are general and are made in the light of the fact that there were statutory rules, regulations and statutory order in favour of the petitioners. In the case here, there is no Government or statutory rule/regulation/order as was in the Krishnamacharyalu Case or the Anadi Trust case. The observations in these cases have to be confined to the facts of these cases and are not applicable here."

The Full Bench also considered the case of K. Krishnamacharyulu (supra) which has been relied upon by the petitioner herein. It also considered the case of T.M.A. Pai Foundation (supra) also relied by the petitioner herein and it further observed as under:-

"47. The Pai Foundation case started on the question relating to scope and right of the minorities to establish and administer educational institutions under article 29(2) and 30(1) of the Constitution of India. The case was referred to eleven judges' bench and eleven questions were framed. Some of the questions were answered by the eleven judges' bench and some were left to be decided by the regular bench. None of the questions related to

Whether the unaided schools are State within the meaning of Article 12 of the Constitution; or

whether the contract or service between the private managed school and the teachers are statutory; or

whether a writ petition is maintainable for enforcement of contract of persons service.

This case is not relevant for deciding the question that is before us".

The Full bench also referred to the earlier Full Bench in the case of Aley Ahmad Vs. DIOS reported in AIR 1977 Alld. 539. The Full Bench decision in the case of M.K. Gandhi (supra) was put to challenge before the Supreme court vide Civil Appeal No. 339 of 2007 and their Lordships while affirming the part of the Full Bench judgment holding the writ petition against Delhi Public School as not maintainable, set aside the other part holding the writ petition as maintainable against CBSE and made certain observations. It observed as under:

"The Allahabad High court should have stop short of holding that the said DPS is a private body and the writ is not maintainable. Hence, we are of the view 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 and no direction could have been given by the High Court to the CBSE for interfering with the termination of the teachers. The proper remedy for the teachers was to file a civil suit for damages, if there was any."

In Ramesh Ahluwalia (supra) their Lordships had again an occasion to consider the question of maintainability of a writ petition under Article 226 of the Constitution against a private society and the dispute therein arose out of employer and employee relationship and it was not related to admission to a private educational institution. Nevertheless their Lordships held that as imparting of education was a public function, writ petition under Article 226 was maintainable, though, after considering the facts of the case it opined that the writ petition was not the appropriate remedy and relegated the matter to the Educational Tribunal. It considered the earlier decision in the case of Anadi Mukta (supra) and Zee Telefilms Ltd., (supra) and certain other earlier decisions. In the Ramesh Ahluwalia's case the conditions of service were determined by Bye-laws framed by CBSE which were referred in paragraphs 12 and 14 of the said judgment. Paragraphs 12 and 14 are being reproduced as under:-

"12. We have considered the submissions made by the learned counsel for the parties. In our opinion, in view of the judgment rendered by this Court in Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust there can be no doubt that even a purely private body, where the State has no control over its internal affairs, would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution, for issuance of a writ of mandamus. Provided, of course, the private body is performing public functions which are normally expected to be performed by the State authorities."

"14. In view of the law laid down in the aforementioned judgment of this Court, the judgment of the learned Single Judge as also the Division Bench of the High Court cannot be sustained on the proposition that the writ petition would not be maintainable merely because the respondent institution is a purely unaided private educational institution. The appellant had specifically taken the plea that the respondents perform publish functions i.e. providing education to children in their institutions throughout India."

A perusal of the said judgment leaves no doubt that the petitioner under Article 226 of the Constitution against a private unaided institution was held to be maintainable on the premise that such institution performs public function.

In K.K. Saksena (supra) their Lordships of the Supreme court had the occasion to consider the question of maintainability of writ petition under Article 226 of the Constitution against a private body.. Their Lordships also considered the earlier judgment in Andi Mukta (supra) and various other judgments. Relevant paragraphs of the said judgment i.e. 32, 33, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 49 and 51 are being reproduced below:-

" 32. If the authority/body can be treated as a 'State' within the meaning of Article 12 of the Constitution of India, indubitably writ petition under Article 226 would be maintainable against such an authority/body for enforcement of fundamental and other rights. Article 12 appears in Part III of the Constitution, which pertains to 'Fundamental Rights'. Therefore, the definition contained in Article 12 is for the purpose of application of the provisions contained in Part III. Article 226 of the Constitution, which deals with powers of High Courts to issue certain writs, inter alia, stipulates that every High Court has the power to issue directions, orders or writs to any person or authority, including, in appropriate cases, any Government, for the enforcement of any of the rights conferred by Part III and for any other purpose.

"33. In this context, when we scan through the provisions of Article 12 of the Constitution, as per the definition contained therein, the 'State' includes the Government and Parliament of India and the Government and Legislature of each State as well as "all local or other authorities within the territory of India or under the control of the Government of India". It is in this context the question as to which body would qualify as 'other authority' has come up for consideration before this Court ever since, and the test/principles which are to be applied for ascertaining as to whether a particular body can be treated as 'other authority' or not have already been noted above. If such an authority violates the fundamental right or other legal rights of any person or citizen (as the case may be), writ petition can be filed under Article 226 of the Constitution invoking the extraordinary jurisdiction of the High Court and seeking appropriate direction, order or writ. However, under Article 226 of the Constitution, the power of the High Court is not limited to the Government or authority which qualifies to be a 'State' under Article 12. Power is extended to issue directions, orders or writs "to any person or authority". Again, this power of issuing directions, orders or writs is not limited to enforcement of fundamental rights conferred by Part III, but also 'for any other purpose'. Thus, power of the High Court takes within its sweep more "authorities" than stipulated in Article 12 and the subject matter which can be dealt with under this Article is also wider in scope.

"34. In this context, the first question which arises is as to what meaning is to be assigned to the expression 'any person or authority'. By catena of judgments rendered by this Court, it now stands well grounded that the term 'authority' used in Article 226 has to receive wider meaning than the same very term used in Article 12 of the Constitution. This was so held in Shri Anadi Mukta Sadguru (supra). In that case, dispute arose between the Trust which was managing and running science college and teachers of the said college. It pertained to payment of certain employment related benefits like basic pay etc. Matter was referred to the Chancellor of the Gujarat University for his decision. The Chancellor passed an award, which was accepted by the University as well as the State Government and a direction was issued to all affiliated colleges to pay their teachers in terms of the said award. However, the aforesaid Trust running the science college did not implement the award. Teachers filed the writ petition seeking mandamus and direction to the trust to pay them their dues of salary, allowances, provident fund and gratuity in accordance therewith. It is in this context an issue arose as to whether writ petition under Article 226 of the Constitution was maintainable against the said Trust which was admittedly not a statutory body or authority under Article 12 of the Constitution as it was a private trust running an educational institution. The High Court held that the writ petition was maintainable and said view was upheld by this Court in the aforesaid judgment.

"36. In para 15 of Anadi Mukta Sadguru, the Court spelled out two exceptions to the writ of mandamus, viz. (i) if the rights are purely of a private character, no mandamus can issue; and (ii) if the management of the college is purely a private body "with no public duty", mandamus will not lie. The Court clarified that since the Trust in the said case was an aiding institution, because of this reason, it discharges public function, like Government institution, by way of imparting education to students, more particularly when rules and regulations of the affiliating University are applicable to such an institution, being an aided institution. In such a situation, held the Court, the service conditions of academic staff were not purely of a private character as the staff had super-aided protection by University's decision creating a legal right and duty relationship between the staff and the management.

"37. Further, the Court explained in para 20 in Anadi Mukta Sadguru case that the term 'authority' used in Article 226, in the context, would receive a liberal meaning unlike the term in Article 12, inasmuch as Article 12 was relevant only for the purpose of enforcement of fundamental rights under Article 31, whereas Article 226 confers power on the High Courts to issue writs not only for enforcement of fundamental rights but also non-fundamental rights. What is relevant is the dicta of the Court that the term 'authority' appearing in Article 226 of the Constitution would cover any other person or body performing public duty. The guiding factor, therefore, is the nature of duty imposed on such a body, namely, public duty to make it exigible to Article 226.

"38. In K. Krishnamacharyulu & Ors. v. Sri Venkateswara Hindu College of Engineering & Anr. this Court again emphasized that: (SCC P-572, para-4).

4. ...when there is an interest created by the Government in an institution to impart education, which is a fundamental right of the citizens, the teachers who impart education get an element of public interest in performance of their duties. In such a situation, remedy provided under Article 226 would be available to the teachers. The aforesaid two cases pertain to educational institutions and the function of imparting education was treated as the performance of public duty, that too by those bodies where the aided institutions were discharging the said functions like Government institutions and the interest was created by the Government in such institutions to impart education.

" 39. In G. Bassi Reddy v. International Crops Research Institute & Anr, the Court was concerned with the nature of function performed by a research institute. The Court was to examine if the function performed by such research institute would be public function or public duty. Answering the question in the negative in the said case, the Court made the following pertinent observations: (SCC.p 337, Para 28).

"28. .....Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. The primary activity of ICRISAT is to conduct research and training programmes in the sphere of agriculture purely on a voluntary basis. A service voluntarily undertaken cannot be said to be a public duty. Besides ICRISAT has a role which extends beyond the territorial boundaries of India and its activities are designed to benefit people from all over the world. While the Indian public may be the beneficiary of the activities of the institute, it certainly cannot be said that the ICRISAT owes a duty to the Indian public to provide research and training facilities.

Merely because the activity of the said research institute ensure to the benefit of the Indian public, it cannot be a guiding factor to determine the character of the Institute and bring the same within the sweep of 'public function or public duty'. The Court pointed out: (G. Bassi Reddy Case).

In Praga Tools Corporation v. C.V. Imanual, this Court construed Art. 226 to hold that the High Court could issue a writ of mandamus" to secure the performance of the duty or statutory duty" in the performance of which the one who applies for it has a sufficient legal interest". The Court also held that: (SCC p.589, para-6).

"...an application for mandamus will not lie for an order of reinstatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute. (See Sohan Lal v. Union of India,"

"40. Somewhat more pointed and lucid discussion can be found in the case of Federal Bank Ltd. v. Sagar Thomas & Ors.[8], inasmuch as in that case the Court culled out the categories of body/ persons who would be amenable to writ jurisdiction of the High Court. This can be found in para 18 of the said judgment, specifying eight categories, as follows:

"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."

"41. In Binny Ltd. & Anr. v. V. Sadasivan & Ors. the Court clarified that though writ can be issued against any private body or person, the scope of mandamus is limited to enforcement of public duty. It is the nature of duty performed by such person/body which is the determinative factor as the Court is to enforce the said duty and the identity of authority against whom the right is sought is not relevant. Such duty, the Court clarified, can either be statutory or even otherwise, but, there has to be public law element in the action of that body.

"42. Reading of the categorization given in Federal Bank Ltd. (supra), one can find that three types of private bodies can still be amenable to writ jurisdiction under Article 226 of the Constitution, which are mentioned at serial numbers (vi) to (viii) in para 18 of the judgment extracted above.

"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.

"44. Within a couple of years of the framing of the Constitution, this Court remarked in Election Commission of India v. Saka Venkata Subba Rao that administrative law in India has been shaped in the English mould. Power to issue writ or any order of direction for 'any other purpose' has been held to be included in Article 226 of the Constitution 'with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of the King's Bench in England. It is for this reason ordinary 'private law remedies' are not enforceable through extraordinary writ jurisdiction, even though brought against public authorities (See - Administrative Law; 8th Edition; H.W.R. Wade & C.F. Forsyth, page 656). In a number of decisions, this Court ha held that contractual and commercial obligations are enforceable only by ordinary action and not by judicial review.

"45. On the other hand, even if a person or authority does not come within the sweep of Article 12 of the Constitution, but is performing public duty, writ petition can lie and writ of mandamus or appropriate writ can be issued. However, as noted in Federal Bank Ltd. (supra), such a private body should either run substantially on State funding or discharge public duty/positive obligation of public nature or is under liability to discharge any function under any statute, to compel it to perform such a statutory function.

" 46. In the present case, since ICID is not funded by the Government nor it is discharging any function under any statute, the only question is as to whether it is discharging public duty or positive obligation of public nature.

" 47. It is clear from the reading of the impugned judgment, the High Court was fully conscious of the principles laid down in the aforesaid judgments, cognizance whereof is duly taken by the High Court. Applying the test in the case at hand, namely that of ICID, the High Court opined that it was not discharging any public function or public duty, which would make it amenable to the writ jurisdiction of the High Court under Article 226. The discussion of the High Court is contained in paras 33 to 35 and we reproduce the same for the purpose of our appreciation:

"34. On a perusal of the preamble and the objects, it is clear as crystal that the respondent has been established as a Scientific, Technical, Professional and Voluntary Non-Governmental International Organization, dedicated to enhance the world-wide supply of food and fibre for all people by improving water and land management and the productivity of irrigated and drained lands so that the appropriate management of water, environment and the application of irrigation, drainage and flood control techniques. It is required to consider certain kind of objects which are basically a facilitation process. It cannot be said that the functions that are carried out by ICID are anyway similar to or closely related to those performable by the State in its sovereign capacity. It is fundamentally in the realm of collection of data, research, holding of seminars and organizing studies, promotion of the development and systematic management of sustained irrigation and drainage systems, publication of newsletter, pamphlets and bulletins and its role extends beyond the territorial boundaries of India. The memberships extend to participating countries and sometimes, as by-law would reveal, ICID encourages the participation of interested national and non-member countries on certain conditions.

35. As has been held in the case of Federal Bank Ltd. (supra), solely because a private company carries on banking business, it cannot be said that it would be amenable to the writ jurisdiction. The Apex Court has opined that the provisions of Banking Regulation Act and other statutes have the regulatory measure to play. The activities undertaken by the respondent-society, a non-governmental organization, do not actually partake the nature of public duty or state actions. There is absence of public element as has been stated in V.R. Rudani and others (supra) and Sri Venkateswara Hindu College of Engineering and another (supra). It also does not discharge duties having a positive application of public nature. It carries on voluntary activities which many a non-governmental organizations perform. The said activities cannot be stated to be remotely connected with the activities of the State. On a scrutiny of the constitution and by-laws, it is difficult to hold that the respondent- society has obligation to discharge certain activities which are statutory or of public character. The concept of public duty cannot be construed in a vacuum. A private society, in certain cases, may be amenable to the writ jurisdiction if the writ court is satisfied that it is necessary to compel such society or association to enforce any statutory obligation or such obligations of public nature casting positive public obligation upon it.

36. As we perceive, the only object of the ICID is for promoting the development and application of certain aspects, which have been voluntarily undertaken but the said activities cannot be said that ICID carries on public duties to make itself amenable to the writ jurisdiction under Article 226 of the Constitution."

"48. We are in agreement with the aforesaid analysis by the High Court and it answers all the arguments raised by the learned senior counsel appearing for the appellant. The learned counsel argued that once the society is registered in India it cannot be treated as international body. This argument is hardly of any relevance in determining the character of ICID. The focus has to be on the function discharged by ICID, namely, whether it is discharging any public duties. Though much mileage was sought to be drawn from the function incorporated in the MOA of ICID, namely, to encourage progress in design, construction, maintenance and operation of large and small irrigation works and canals etc., that by itself would not make it a public duty cast on ICID. We cannot lose sight of the fact that ICID is a private body which has no State funding. Further, no liability under any statute is cast upon ICID to discharge the aforesaid function. The High Court is right in its observation that even when object of ICID is to promote the development and application of certain aspects, the same are voluntarily undertaken and there is no obligation to discharge certain activities which are statutory or of public character.

"49. There is yet another very significant aspect which needs to be highlighted at this juncture. Even if a body performing public duty is amenable to writ jurisdiction, all its decisions are not subject to judicial review, as already pointed out above. Only those decisions which have public element therein can be judicially reviewed under writ jurisdiction. In The Praga Tools Corporation v. Shri C.A. Imanual & Ors.[11], as already discussed above, this Court held that the action challenged did not have public element and writ of mandamus could not be issued as the action was essentially of a private character. That was a case where the concerned employee was seeking reinstatement to an office.

"50. We have also pointed out above that in Sata Venkata Subba Rao (supra) this Court had observed that administrative law in India has been shaped on the lines of English law. There are catena of judgments in English courts taking same view, namely, contractual and commercial obligations are enforceable only by ordinary action and not by judicial review. In Queen (on the application of Hopley) v Liverpool Health Authority & Ors. (unreported) (30 July 2002), Justice Pithford helpfully set out three things that had to be identified when considering whether a public body with statutory powers was exercising a public function amenable to judicial review or a private function. They are: (i) whether the defendant was a public body exercising statutory powers; (ii) whether the function being performed in the exercise of those powers was a public or a private one; and (iii) whether the defendant was performing a public duty owed to the claimant in the particular circumstances under consideration.

"51. Even in Anadi Mukta Sadguru (supra), which took a revolutionary turn and departure from the earlier views, this Court held that 'any other authority' mentioned in Article 226 is not confined to statutory authorities or instrumentality of the State defined under Article 12 of the Constitution, it also emphasized that if the rights are purely of a private character, no mandamus could issue."

From a reading of K.K. Saksena's case it is borne out that a writ petition under Article 226 of the Constitution can be issued not merely to a Government or authority which qualifies to be "State" under Article 12 of the Constitution but power is extended to issue direction, order, or writs, "to any person or authority". The power is not limited to enforcement of fundamental right conferred by Part III of the Constitution but also "for any other purpose". Thus power of High Court takes within its a sweep more "authorities" than stipulated in Article 12 and the subject matter which can be dealt with under this Article is also wider in scope. While considering the earlier decision in Anadi Mukta (supra) case it observed that the dispute in the said case arose between the trust which was managing and running a science college and teacher of the said college. It pertained to payment of certain emolument relating to the benefits in respect of which the matter had been referred to the Chancellor of Gujrat University for his decision who had passed an award which was accepted by the University as well as the State Government and a direction was issued to all affiliated college to pay their teachers in terms of the said award but the trust running the college did not implement the award thereupon the teachers filed a writ petition seeking a mandamus and direction to the trust to pay them the said benefits. It is in this context the issue arose as regards the maintainability of the writ petition under Article 226 of the Constitution against the said trust. However, the Court noticed the observation made in the case of Anadi Mukta (supra) in paragraph 15 thereof, wherein two exceptions to the writ of mandamus were spelled out (i) if the rights are of a purely private character no mandamus can be issued (ii) if the management of the college is a purely private body with no public functioning, mandamus will not lie. It noticed that the trust in the said case was aided institution and for this reason it was held to be discharging public function like Government institutions by way of imparting education to students, more particularly when rules and regulations of the affiliating University were applicable to such an institution. It observed that in such a situation the Court held that the service condition of the staff were not, of a purely private character as the staff had super aided protection of University's decision creating a legal right and duty relationship between the staff and the management of the college.

In para 37 of K.K. Saxena the Supreme court held that the guiding factor was the nature of duties imposed on such a body, namely, public duty to make it exigible to Article 226. The supreme Court considered the earlier decision of the case of K. Krishnamacharyulu (supra) and observed that this was also a case pertaining to an aided institution discharging public function.

In para 39 the Supreme Court considered the earlier decision in Ahmad Basi Reddy wherein it was observed that the public function and public duty though not easy to define, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereignty capacity. A service voluntarily undertaken cannot be said to be public duty.

The Court in the case of K.K. Saksena (supra) observed that merely because activity being carried on enures to the benefit of the Indian public, it cannot be a guiding factor to determine the character of the institute and bring the same within the sweep of 'Public function or Public duty'. It referred to the earlier decision in the case of Federal Bank vs. Sagar Thamas reported in (2003) 10 SCC 733, in para 40, wherein the Court had culled out the categories of body/persons who would be amenable to writ jurisdiction of the High Court. One such category was a private body discharging public duty or positive obligation of public nature.

In paragraph 41 of K.K. Saxena the Supreme Court considered its earlier decision in the case of Binny Ltd. vs. V. Sadasivam reported in (2005)6 SCC 657, wherein it was clarified that though writ can be issued against any private body or person, the scope of mandamus is limited to enforcement of public duty. It is the nature of the duty performed by such person/body, which is the determinative factor as the court is to enforce the said duty and the identity of the authority against whom the right is sought is not relevant. Such duty can either be statutory or even otherwise, but there has to be a public law element in the action of that body.

After analyzing the earlier decisions, the Supreme Court observed in paragraph 43 that even in such cases when a writ petition is maintainable under Article 226 a writ would not lie to enforce private law rights. A 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 before issuing any writ particularly the writ of mandamus the court has to satisfy that the action of such an authority which is challenged is in the domain of public law as distinguished from private law.

Further in Paragraph 44 of K.K. Saksena case(supra) their Lordships observed that power to issue writ or any order or direction for "any other purpose" has been held to be included in Article 226 of the Constitution with a view apparently to place all the High Court in this country in somewhat the same position as the Court of the King's Bench in England. It is for this reason ordinary "private law remedies" are not enforceable through extraordinary writ jurisdiction, even though brought against public authorities.

In paragraph 49 of the said judgment the Supreme Court high lighted the aspect that even if a body performing public duty is amenable to writ jurisdiction, all its decisions are not subject to judicial review. Only those decisions which have public element therein can be judicially reviewed under writ jurisdiction.

In paragraph 51 of the said judgment the Supreme Court referred to Anadi Mukta (supra) case and observed that though it was held in the case that "any other authority" mentioned in Article 226 is not confined to statutory authorities or instrumentality of the State defined under Article 12 of the Constitution, it also emphasized that if the rights are purely of a private character, no mandamus could issue.

Based on the aforesaid discussion specially the pronouncement of Supreme court in Ramesh Ahluwalia (supra), wherein a writ petition under Article 226 against a private unaided educational institution was held to be maintainable on the ground of performance of public functions and the decision BCC case (supra), even if it is assumed that this writ petition at the behest of the petitioner against a private educational institution is maintainable, it would only be half the job done and the question would still remain whether in the facts of the present case there is any such statutory or positive obligation based on public law element or as stated in the Anadi Muta's case in para 22 thereof whether there is any such duty imposed upon the school for admitting the student in standard XI by Charter, Common law, Custom or Contract or not. The fact that a writ petition is maintainable under Article 226 of the Constitution does not ipso-facto lead to the issuance of a writ. A writ petition may be maintainable yet a writ or an order or direction in the nature of such a writ may not be liable to be issued. Assuming the maintainability of this petition it is the second question which requires consideration.

The counsel for the petitioner was not able to place before the Court any statutory rules imposing any statutory obligation on the opposite parties conferring a corresponding right in favour of the petitioner against the respondent institution. He was also not able to show any such obligation imposed by any Charter, Common law, Custom or Contact between the parties. As far as reference by the petitioner to the enquiries conducted by the State authorities and directions issued by them to the respondent institution are concerned, there is no statutory backing to justify such action on their part. The assertion that the action of respondent school being arbitrary was hit by Article 14 of the Constitution has been made only for being rejected. The Fundamental Right under Article 14 of the Constitution is available against a State and its authorities and not against a private body certainly not for maintaining a writ petition under Article 226 of the Constitution against such bodies. Arbitrary action, if any, may give cause for the aggrieved person to initiate civil action before the Civil Court but not a writ petition against a private educational institution. The opposite parties have been able to demonstrate that admission to standard XI is a fresh admission and not an automatic promotion, a stand supported by learned Senior Advocate Sri Nagar, who appeared and argued on behalf of Indian School Certificate Board and placed before the Court the relevant Regulations in this regard.

It is unfortunate that the institution has disowned its student of 13 years. It may or may not be having good reasons to support its action but there is no doubt that there was no statutory or other obligation as referred hereinabove on the part of the school which could attract the issuance of a writ as prayed for in the writ petition.

The first relief claimed in the writ petition is for issuance of a writ of certiorari quashing the letter dated 21.06.2015 written by the Principal of the School, which is a private unaided educational institution. Moreover the said letter is in response to some letter written by the District Inspector of Schools Anglo India Schools Lucknow. Issuance of a writ of certiorari for quashing a reply such as the one contained in the letter dated 21.06.2015 is unheard of. The claim for issuance of such a writ is not supported by any decision. A writ of certiorari cannot be issued to quash a letter/reply sent by the Head of the private Institution. The Indian School of Certificate Board to which the institution is affiliated, is, itself not a statutory authority nor any effort was made by the petitioner to prove that it was.

In view of the discussion made hereinabove it hardly needs to be emphasized that in the facts of the present case, no case is made out for issuance of a writ of certiorari or mandamus as prayed for in the writ petition.

In view of the above discussion, the writ petition fails and is hereby dismissed.

Order Date :- 16.10.2015

Vijay