Narayana School vs Anisur Rahman & Ors
2022 Latest Caselaw 4856 Cal

                                                        MAT 1278/21 1 of 37


                     IN THE HIGH COURT AT CALCUTTA

                     CIVIL APPELLATE JURISDICTION

                             APPELLATE SIDE


Present:

THE HON'BLE JUSTICE HARISH TANDON
                   &
THE HON'BLE JUSTICE RABINDRANATH SAMANTA



                            MAT 1278 of 2021
                             CAN 1 of 2021

                     Narayana School, Barasat & Anr.

                                   Vs.

                           Anisur Rahman & Ors.



Appearance:

For the Appellants          :    Mr. Anjan Bhattacharya, Adv.

                                 Ms. Anita Shaw, Adv.

For the Respondent no. 1    :     Mr. Abhratosh Majumdar, Adv.

Mr. Abhra Majumdar, Adv.

For the Respondent Nos. 2 & 3: Mr. U.S. Menon, Adv.

Mr. Abhirup Chakraborty, Adv.

For the State               :     Mr. Supriya Chattopadhyay, Adv.

                                 Mr. Arindam Chattopadhyay, Adv.



Judgment On                 :    29.7.2022



Harish Tandon, J.:

The present appeal arises from an order dated 26.11.2021 passed by

the Single Bench in WPA 9402 of 2020 negetivating the claim of the MAT 1278/21 2 of 37

appellant that the writ petition is not maintainable as the enforceability is

sought to the private contracts and further directions were passed for

production of the documents and refusal to extend the time for filing the

affidavits.

The writ petition was filed by the respondent No.1 against the Central

Board of Secondary Education as well as the appellants assailing the action

of the appellants for reduction of the salary to the extent of 40 per cent and

the complete stoppage of the payment of salary since July, 2020 without any

Rules to have been followed.

The respondent No.1 herein was appointed to the post of English

teacher in Narayana School, Barasat, the appellant No.1 herein, with effect

from March 07, 2017. The employment contract was handed over to the

respondent No.1 and was duly executed though it is stated that it contains

certain blank informations therein. Subsequently, grievance was raised over

the poor pay structure of the teachers and the lack of basic securities

relating to their service. Several representations were made by the teachers

of the said school but ultimately, the said appellant No.1 unilaterally

reduced the salary to the extent of 40 per cent without prior notice or a

consent taken from a respective teacher. The representations were made

when the said appellant No.1 decided to stop the salary of the respondent

No.1 and thereafter, the writ petition was filed alleging that the appellant

No.1 being the affiliated school with the Central Board of Secondary

Education discharges the public functions and are bound by the bye-laws of

affiliation which is a statutory document.

MAT 1278/21 3 of 37

It is not in dispute that the appellant was appointed at a fixed

remuneration indicating the probation period to be of one year from the date

of the joining. It is also not in dispute that despite the expiration of the

probation period, the petitioner continued to render services and the

document annexed in the instant appeal would reveal that the salary slip

was issued by the appellant No.1 till February, 2020. The appellant No.1

took a preliminary objection that the writ petition for enforcement of the

private contract is not maintainable against the said appellants and the

respondent No.1 has volunteered not to join the said school since last

several months. However, the Division Bench set aside the earlier order of

the Single Bench and directed the respondent No.1 to join and the remitted

the matter to the Single Bench to decide the same.

By the impugned order, the Single Bench recorded the event

happened before it when the school authority submitted that despite the

order, the respondent No.1 did not join the school and further raised a plea

of maintainability of the writ petition. While upholding the maintainability

point in favour of the respondent No.1, the Single Bench directed the

appellants to produce the biometric device before the Court to ascertain

whether the respondent No.1, in fact, went to join school or not.

In our opinion, the second point relating to joining or non-joining of

the respondent No.1 takes a back seat for the simple reason that the

moment it is found that the writ petition is not maintainable, the said

question would be mere academic. Even the counsel appearing for the

respective parties have restricted their arguments on the maintainability of MAT 1278/21 4 of 37

the writ petition and therefore, we feel that it would be an ardent duty to

decide the said point first.

Mr. Anjan Bhattacharya, the learned advocate appearing for the

appellant submits that the Single Bench has misinterpreted the judgment of

Ramakrishna Mission and Another vs. Kago Kunya and Others,

reported in (2019) 16 SCC 303 and culled out certain portions therefrom

without venturing to go into the ultimate findings made therein in upholding

the maintainability of the writ petition. He arduously submits that the

Single Bench has not considered the distinction between the discharge of

public duty and the involvement of public law elements which has been

succinctly laid down in the above report. Mr. Bhattacharya vehemently

submits that even a private institution/organization may discharge the

public duties but that itself cannot be a ground for maintainability of the

writ petition, more particularly, when the dispute raised in the writ petition

does not involve the public law elements. He further submits that the Single

Bench has miserably failed to take into consideration that the contract of

service is within the realm of a private law and even if the

institution/organization discharges public duties, yet enforceability of a

private law cannot be secured by filing the writ petition. He put more

emphasis on the fact that mere affiliation with the Central Board of

Secondary Education does not render the institution of public authority or

the other authority within the meaning of Article 226 of the Constitution of

India when there is no public element involved in discharge of such public

duty. He, thus, submits that the Single Bench ought to have held that the MAT 1278/21 5 of 37

writ petition is not maintainable to enforce the private contract and

therefore, the impugned order is required to be set aside.

Mr. Majumdar, the learned advocate appearing for the respondent

No.1 submits that writ petition is maintainable against the private

institution/organization if their primary function is to discharge the public

duties. He further submits that there is a catena of judgments wherein it is

held by the Supreme Court that even a private body is amenable to the

jurisdiction under Article 226 of the Constitution of India, if discharge the

public duties. The restrictive meaning given to an authority under Article 12

of the Constitution would undermine the basic structure of the Constitution

which engulfed the powers of the High Court under Articles 226 and 227

thereof. He further submits that the writ petition against the private body/

organization/institution is maintainable if there is a gross violation of the

principle of natural justice which is one of the fundamental rights enshrined

in the Constitution and relied upon the judgment of the Supreme Court in

case of State of Uttar Pradesh vs. Sudhir Kumar Singh & Ors. reported

in AIR 2020 SC 5215. Mr. Majumdar further submits that it is not a rigid

rule that the dispute pertaining to a contract cannot be enforced through

the writ remedies and therefore, it is to be decided on the basis of the facts

involved in the given case. It is further submitted that the appellant No.1

being a self-financed educational institution is affiliated with the Central

Board of Secondary Education which is an authority within the meaning of

Article 12 of the Constitution and therefore, the bye-laws relating to

affiliation assume the statutory character and any violation thereof is MAT 1278/21 6 of 37

capable of being redressed through a writ mechanism. He, thus, submits

that there is no infirmity and/or illegality in the order of the Single Bench in

upholding the maintainability in favour of his client.

Mr. Menon, learned advocate appearing for the Central Board of

Secondary Education submits that the respondent no.1 is affiliated with the

said authority and therefore, the bye-laws have a binding force. He further

submits that the said board is otherwise competent to frame bye-laws

relating to affiliation and therefore, the affiliated school cannot violate the

clauses of the said bye-laws. However, he candidly submits that such bye-

laws are applicable only for the purpose of an affiliation and the board does

not have, either direct or pervasive control, over the functioning of the

private educational institution administratively or economically. He, thus,

submits that the board does not have any control over the appointment of

the teachers being neither an appointing nor a disciplinary authority but

certainly retains control in relation to the curriculum examination and the

issuance of the certificates to the students of the said institution.

On the conspectus of the aforesaid facts and the submissions

advanced before us, the seminal point in the instant appeal is whether the

writ petition is maintainable against the appellants' institution being a self-

financed private school though discharging the public duties for

enforcement of the conditions of services of the teachers having involvement

of a public law element.

MAT 1278/21 7 of 37

Before we proceed to return our finding on the various decision cited

before us as well as the argument so advanced it would be apposite to

assimilate the ratio of law laid down therein.

In case of K. Krishnamacharyulu & Ors. vs. Sri Venkateswara

Hindu College of Engineering & Anr. reported in (1997) 3 SCC 571, the

two Judge Bench of the Supreme Court considered a case where the seven

persons who were appointed on daily wages to the post of Laboratory

Assistant as non-teaching staff in purely private educational institutions

moved a writ petition seeking equal pay for equal work at par with the

Government employee. An executive instruction was issued by the

appropriate Government to extend the benefit of pay scale at par with the

Government employee and the question that fell for consideration was

whether the educational institution who is not receiving any grant from the

Government is amenable to the jurisdiction of the High Court under Article

226 of the Constitution in absence of any statutory Rule. The Apex Court

held that once the interest is created by the Government into the institution

to impart education which is recognised as a fundamental right of a citizen,

the teachers who are imparting education shall get an element of the public

interest in performing his duties and, therefore, it is imperative to regulate

the condition of service at par with the Government employees. It was

further held that it is a primary obligation of the State to provide the

infrastructure, facilities and the opportunities to the people to avail the right

of education and once such obligations are foisted upon the private

institutions, the teachers appointed therein shall not be deprived to seek MAT 1278/21 8 of 37

enforcement of the orders passed by the Government and, therefore, the

duties and functions discharged by the private educational institutions has

a public element and, therefore, amenable to the jurisdiction of the High

Court under Article 226 of the Constitution. However, it was further held

that it would be totally different when the remedy lies within the realm of

the private law in these words:

"4. It is not in dispute that executive instructions issued by the

Government have given them the right to claim the pay scales so as to

be on a par with the government employees. The question is when

there are no statutory rules issued in that behalf, and the institution,

at the relevant time, being not in receipt of any grant-in-aid; whether

the writ petition under Article 226 of the Constitution is not

maintainable? In view of the long line of decisions of this Court

holding that 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 the education get an element of

public interest in the performance of their duties. As a consequence,

the element of public interest requires regulation of the conditions of

service of those employees on a par with government employees. In

consequence, are they also not entitled to the parity of the pay scales

as per the executive instructions of the Government? It is not also in

dispute that all the persons who filed the writ petition along with the

appellant had later withdrawn from the writ petition and thereafter

the respondent-Management paid the salaries on a par with the MAT 1278/21 9 of 37

government employees. Since the appellants are insisting upon

enforcement of their right through the judicial pressure, they need

and seek the protection of law. We are of the view that the State has

obligation to provide facilities and opportunities to the people to avail

of the right to education. The private institutions cater to the need of

providing educational opportunities. The teacher duly appointed to a

post in the private institution also is entitled to seek enforcement of

the orders issued by the Government. The question is as to which

forum one should approach. The High Court has held that the remedy

is available under the Industrial Disputes Act. 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; the jurisdiction

part is very wide. It would be a different position, if the remedy is a

private law remedy. So, they cannot be denied the same benefit which

is available to others. Accordingly, we hold that the writ petition is

maintainable. They are entitled to equal pay so as to be on a par with

government employees under Article 39 (d) of the Constitution."

The Division Bench in case of The Governing body, Durgapur

Institute of Advance Technology and Management & Ors. vs.

Subhangshuman De & Ors. reported in 2015 SCC Online Cal 6561 was

considering a case where Respondent no. 1 who was issued an appointment

letter could not join on or before the period provided therein because of

having met with an accident and admitted in the hospital and later on was MAT 1278/21 10 of 37

refused by the authorities to join his duty after his recovery. The Writ

Petition was filed before this Court and an order was passed by the Single

Bench directing the appellant therein to permit the Respondent no. 1 to join

his duty. The said order was assailed before the Appellate Court and a plea

was taken that since the said educational institution is not a "State" within

the meaning of Article 12 of the Constitution of India neither the Writ

Petition is maintainable nor any order of such nature could be passed by the

Single Bench. In the backdrop of the aforesaid facts, the Division Bench

held:

"11. In Paragraph 2 the petitioner had stated that the Institute

was a recognized institution under the All India Council for Technical

Education which was a statutory body under the Govt. of India

recognized by the U.G.C and it was affiliated to the West Bengal

University of Technology. The Respondents did not deny this part of

the statement of the Petitioner to the effect that it was a recognized

Institution of the All India Council For Technical Education, a

statutory body under the Govt. of India recognized by the U.G.C and

affiliated to the West Bengal University of Technology. All that they

said was they denied and disputed everything except what were

matters of record. They have, however, not stated anything with

regard to the aforementioned statement of the Petitioner. In a

Judgment of the Hon'ble the Supreme Court passed in the case of

Ramesh Ahluwalia v. State of Punjab reported in (2012) 12 SCC 331 it

has inter-alia been held that if a Respondent performs public MAT 1278/21 11 of 37

functions and provides education to children in their institutions,

then the issuance of a Writ cannot be withheld merely because the

Respondent is a purely unaided private educational institution. In the

instant case the institution imparts education for purposes of

fostering technical education after being recognized by a statutory

body being the All India Council for Technical Education. That being

the position, the Appellants cannot escape by saying that the Writ

Petition is not maintainable. Moreover, in the facts and circumstances

of this case, we cannot ignore that under Article 226 of the

Constitution of India, wide powers have been conferred upon the High

Courts to issue high prerogative writs to correct errors and/or

injustice meted out to citizens of India and for the enforcement of

their fundamental rights. On the basis of the aforementioned analogy,

we are not inclined to accept the submissions of the learned Counsel

for the Appellant that the Writ Petition itself was not maintainable."

In Ramesh Ahluwalia vs. State of Punjab & Ors. reported in

(2012) 12 SCC 331, the facts involved in the said case are somehow similar

to the facts of the instant case. The appellant therein was working as

Administrative Officer in the privately runned educational institution and

was removed from service in a disciplinary proceedings initiated against him

by the managing committee of the said educational institution. The writ

petition was filed before the Single Bench of the High Court challenging the

order of the disciplinary authority wherein he was removed from service

which was dismissed in limine holding that the said educational institution MAT 1278/21 12 of 37

being an unaided and private school managed by the society is not an

instrumental of the State. The appeal before the Division Bench was further

dismissed and the matter travelled to the Supreme Court. The seminal point

which was urged before the Supreme Court pertains to the maintainability

of the writ petition against the private educational institution. An argument

was advanced on behalf of the appellant that even though the private

educational institutions may not fall within the definition of a State or other

authorities/instrumentalities of the State under Article 12 of the

Constitution yet the writ petition would be maintainable as the Said private

educational institution discharges the very important public functions by

imparting education throughout the country. However, the Council for the

educational institution took a plea that in order to constitute a body falling

within the definition of the State it is important 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 does not ipso facto

make the body a State within the meaning of the said Article. On the

conspectus of the aforesaid facts and the submissions advanced it has been

held that the writ petition would be maintainable if the private educational

institution discharges the public functions, more particularly, providing

education throughout the country. Interestingly, the court refused to extend

any benefits to the teacher as the case involves the disputed question of

facts and directed the matter to be decided by appropriate tribunal/court in

the following:

MAT 1278/21 13 of 37

"14. In view of the law laid down in the aforementioned

judgments 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 public functions i.e. providing education

to children in their institutions throughout India.

15. We must, however, notice that the learned Single Judge has

dismissed the writ petition also on the ground that it involves

disputed questions of fact. Mr. Ray, learned counsel appearing on

behalf of the respondents has submitted that the appellant actually

has not been able to contradict any of the proven facts. According to

the learned counsel, the remedy of the appellant is to file a civil suit,

if so advised. Therefore, the writ petition has been rightly dismissed

by the High Court. Mr. Parikh, learned counsel for the appellant,

however, submits that the civil suit would not be an alternative

efficacious remedy in the facts of this case. In support of this

submission, he brought to our notice certain observations made by a

Constitution Bench of this Court in T.M.A Pai Foundation v. State of

Karnataka. The learned counsel pointed out that, in the aforesaid

case, this Court had directed that the Appellate Tribunal should be

set up in each district of each State to hear appeals over the decisions

taken by the disciplinary bodies of even purely private educational MAT 1278/21 14 of 37

institutions. It was emphasised that speedy resolution of the disputes

between the teachers and the management is in the interest of all i.e.

students, management as well as the teachers concerned. It appears

that at the time when the appeal of the appellant was heard, such a

tribunal had not been set up in the State of Punjab. The appeal filed

before the Disciplinary Committee was also not referred to the District

Judge by the Disciplinary Committee.

16. We are of the considered opinion that since the writ petition

clearly involves disputed questions of fact, it is appropriate that the

matter should be decided by an appropriate tribunal/court."

In case of Pramati Educational and Cultural Trust (Registered) &

Ors. vs. Union of India & Ors reported in (2014) 8 SCC 1 the five Judge

Constitution Bench of the Supreme Court was called upon to decide the

validity of Clause (5) of Article 15 of the Constitution inserted by the

Constitution (93rd Amendment) Act, 2005 with effect from 20th January,

2006 and on the validity of Article 21(A) of the Constitution inserted by the

Constitution (86th Amendment) Act, 2002 with effect from 1.4.2010 by the

three Judge Bench of the Apex Court in case of Society for Unaided

Private Schools of Rajasthan vs. Union of India reported in (2012) 6

SCC 102. The three Judge Bench noticed the earlier Constitution Bench

judgment of the Apex Court in Ashoka Kumar Thakur vs. Union of India

reported in (2008) 6 SCC 1 wherein the constitutional validity of Clause (5)

of Article 15 of the Constitution was validly held and does not violate the

basic structure of the Constitution relating to the State maintained MAT 1278/21 15 of 37

institutions and aided educational institutions. The three Judge Bench

found that whether the said Clause (5) of Article 15 of the Constitution can

be held to be constitutionally valid in relation to a private unaided

educational institution which was not decided by the earlier Constitution

Bench decision in Ashoka Kumar Thakur (Supra) and referred the matter

to five Judge Constitutional Bench. In pursuit of deciding aforesaid point of

reference, the Constitutional Bench noticed the language employed in Article

21(A) of the Constitution mandating the State to provide free and

compulsory education to all the children of the age of 6-14 years in such

manner as the State may, by law, determined. The word "State" was

interpreted to mean a State which can make law and not the private

unaided educational institutions who are not vested with the powers to

enact law. The Apex Court also did not find any conflict amongst Article

21A, regulating the right of private unaided school under Article 19 (1) (g)

and the right of minority schools under Article 30 (1) of the Constitution but

held that the law made under Article 21A may affect these rights under

Article 19 (1) (g) and 30 (1) of the Constitution. It is thus held that law

pertaining to free and compulsory education to the children between the age

of 6 and 14 does not abrogate the rights of the unaided private educational

schools under Article 19 (1) (g) and the minority schools aided or unaided

under Article 30 (1) of the Constitution. Ultimately it was held that the 2009

Act relating to free and compulsory education to the children between the

age of 6-14 as amended under Article 21A of the Constitution is aimed to

provide the free and compulsory education is consistent with the right under

Article 19 (1) (g) of the Constitution of the Constitution in order to achieve MAT 1278/21 16 of 37

the constitutional vision of providing equal opportunity to the children of the

weaker section and disadvantaged groups on the society and, therefore, does

not violate article 19 (1) (g) of the Constitution. It was ultimately held that

the members of the communities who, other than the minority community

which has established the school cannot be forced upon a minority

institution as it may destroy the minority character of the school, in the

following:

"53. When we examine the 2009 Act, we find that under Section

12 (1)(c) read with Section 2 (n)(iv) of the Act, an unaided school not

receiving any kind of aid or grants to meet its expenses from the

appropriate Government or the local authority is required to admit in

Class I, to the extent of at least twenty-give per cent strength of that

class, children belonging to weaker section and disadvantaged group

in the neighbourhood and provide free and compulsory elementary

education till its completion. We further find that Section 12(2) of the

2009 Act such a school shall be reimbursed expenditure so incurred

by it to the extent of per-child-expenditure incurred by the State, or

the actual amount charged from the child, whichever is less, in such

manner as may be prescribed. Thus, ultimately it is the State which is

funding the expenses of free and compulsory education of the children

belonging to weaker sections and several groups in the

neighbourhood, which are admitted to a private unaided school.

These provisions of the 2009 Act, in our view, are for the purpose of

providing free and compulsory education to children between the age MAT 1278/21 17 of 37

group of 6 to 14 years and are consistent with the right under Article

19 (1)(g) of the Constitution, as interpreted by this Court in T.M.A Pai

Foundation and are meant to achieve the constitutional goals of

equality of opportunity in elementary education to children of weaker

sections and disadvantaged groups in our society. We, therefore, do

not find any merit in the submissions made on behalf of the non-

minority private school that Article 21 - A of the Constitution and the

2009 Act violate their right under Article 19(1)(g) of the Constitution.

55. When we look at the 2009 Act, we find that Section 12(1)(b)

read with Section 2(n)(ii) provides that an aided school receiving aid

and grants, whole or part, of its expenses from the appropriate

Government or the local authority has to provide free and compulsory

education to such proportion of children admitted therein as its

annual recurring aid or grants so received bears to its annual

recurring expenses, subject to a minimum of twenty-five per cent.

Thus, a minority aided school is put under a legal obligation to

provide free and compulsory elementary education to children who

need not be children of members of the minority community which has

established the school. We also find that under Section 12(1)(c) read

with Section 2(n)(iv), an unaided school has to admit into twenty-five

percent of the strength of Class I children belonging to weaker

sections and disadvantaged groups in the neighbourhood. Hence,

unaided minority schools will have a legal obligation to admit

children belonging to weaker sections and disadvantaged groups in MAT 1278/21 18 of 37

the neighbourhood who need not be children of the members of the

minority community which has established the school. While

discussing the validity of clause (5) of Article 15 of the Constitution,

we have held that members of communities other than the minority

which has established the school cannot be forced upon a minority

institution because that may destroy the minority character of the

school. In our view, if the 2009 Act is made applicable to minority

schools, aided or unaided, the right of the minorities under Article

30(1) of the Constitution will be abrogated. Therefore, the 2009 Act

insofar it is made applicable to minority schools referred in clause (1)

of Article 30 of the Constitution is ultra vires the Constitution. We are

thus of the view that the majority judgment of this court in Society for

Unaided Private Schools of Rajasthan v. Union of India insofar as it

holds that the 2009 Act is applicable to aided minority schools is not

correct."

In Marwari Balika Vidyalaya vs. Asha Srivastava & Ors.

reported in (2020) 14 SCC 449, the point involved therein relates to the

maintainability of the writ petition against the private school receiving grant-

in-aid to the extent of Dearness Allowance. A writ petition was filed by a

teacher challenging a show cause notice issued by the Secretary of the

managing committee while the said teacher has moved the writ petition

impleading the District Inspector of Schools (Primary Education, Calcutta)

as party in the proceeding which originated on the inaction or delay on the

part of the said authority in not granting approval to such appointment MAT 1278/21 19 of 37

which was forwarded by the school authority. The said proceeding originated

on the show cause notice and culminated into an order of termination. The

Apex Court held that the writ petition is maintainable even against the

private unaided educational institution in view of the undisputed facts that

the moment the approval for appointment is sought from the Government

Authority the approval for removal and/or termination is also required and

in absence thereof such removal cannot be said to be proper.

The aforesaid case though it relates to the private school but the said

school was receiving a grant-in-aid to the extent of Dearness Allowance. The

appointment and the removal is required to be approved by the District

Inspector of School (Primary Education) and if any action is taken de hors

such mandatory provisions does not come within the realm of a private law

element.

In Jigya Yadav vs. Central Board of Secondary Education

reported in (2021) 7 SCC 535, the batch of 22 petitions for

corrections/change in the name, surname, date of birth or the name of their

parents in the certificate issued Central Board of Secondary Education were

taken into consideration. One of the questions framed therein relate to the

enforceability of CBSE Examination Bye-laws as a force of law. The Apex

Court held that by virtue of Government of India resolution dated 1.7.1929,

the CBSE came to be established to play a useful role in the field of the

secondary education and extended services to various educational

institutions within the country. One of the cardinal functions entrusted

upon a Board is to make regulations for giving effect to the aforesaid MAT 1278/21 20 of 37

resolutions which imbibe within itself the conditions for issuing certificate

for examination conducted by the Board. The Article 18 of the Constitution

of the Board empowers to make bye-laws in consistent with the regulations

and the resolution being the source of its existence but purely on a

procedural aspect which indubitably renders it not backed by the statute

and, therefore, cannot be characterised as statutory. However, the Apex

Court held that even the bye-laws is not statutory whether it has a force of

law in co-relation with Article 13 of the Constitution. The Apex Court held

that such bye-laws have a force of law and, therefore, the scrutiny cannot be

abridged by giving any artificial colour to it and held that the CBSE is

discharging the public function and its duties and obligations have a public

element and, therefore, comes within the ambit of the State under Article 12

of the Constitution in these words:

"105. Indubitably, the CBSE Board came to be established vide

Government of India Resolution dated 1-7-1929 with a view to "enable

it to play a useful role in the field of Secondary Education" and

"make the services of the Board available to various educational

institutions in the country, as stated in the Constitution of the Board.

Article 9 of the said Constitution deals with the "Powers and

Functions of the Board", which include to do all such things as may

be necessary for furthering the objectives of the Board. One of the

functions or so to say power of the Board is to make regulations for

giving effect to the aforestated resolution as predicated in Article 16

of the Constitution. Clause (2) thereof envisages that the Regulation so MAT 1278/21 21 of 37

framed may provide for conditions for issuing certificates for

examination conducted by the Board. We may also take note of Article

18 of the Constitution of the Board, which makes it amply clear that

the bye-laws to be framed by the Board ought to be consistent with

and subservient to the Regulations and the Resolution establishing

the Board. This Article also indicates that bye-laws may be made for

the purposes referred to in clauses (a) and (c) pertaining to procedural

aspects. Indisputably, the constitution/organisation or structure of

CBSE is not backed by a statute. It is, therefore, a misnomer to

characterise bye-laws framed by the Board as statutory.

115. CBSE is the only Central body for conducting examinations

in the country created by a resolution of the Central Government. All

the bodies constituted at various levels are working in the direction of

just educational governance. Article 41 of the Constitution, couched

as a directive, is the source behind the basic functioning of the CBSE

Board as it secures nothing but right to education. It is participating

in educational affairs which form an intrinsic part of social affairs.

The CBSE Board is a public authority functioning in public interest

for the performance of a public function.

120. As in the ultimate analysis, the bye-laws operate as law,

the scrutiny of this Court cannot be undermined by giving them an

artificial colour. For a student enrolled with the CBSE, there is no

other body of rules but the subject bye-laws for dealing with all

significant aspects of her education. By now it is an established tenet MAT 1278/21 22 of 37

that even body corporate, cooperative societies, registered societies,

etc. can be declared as instrumentalities of the State, for the only

reason that the outer form of organisation must not be allowed to

defeat the ultimate constitutional goal of protection of fundamental

rights as and when they suffer at the hands of the State, directly or

indirectly. The court ought to intervene with circumspection even

when the public body derives its authority from a government

resolution.

122. Arguendo, the examination Bye-laws are not "law" under

Article 13, it would not affect the power of the court to scrutinise

them in reference to Part III of the Constitution of India as CBSE is

"State" within the meaning of Article 12 and all its actions are

consequently subject to Part III."

In Ramakrishna Mission (supra), the plea as to maintainability of

the writ petition against the appellant therein being the State within the

meaning of Article 12 of the Constitution in a writ petition filed by the first

respondent therein as a general duty worker and later on promoted to the

substantive portion of nursing aid was made to retire upon completion of 35

years of service in terms of the sub-service rules applicable thereupon was

involved. The contention of the first respondent in this regard was that the

appellant therein who was running a hospital was availing the funds

towards the part of the expenditure in a 263 bedded hospital, was

discharging a public duty. It was brought to the notice of the Apex Court

that the portion of the income of the hospital is generated out of the grants MAT 1278/21 23 of 37

received from the State and the land over which such hospital was

constructed was granted by the Government on a concessional rate and

therefore, the appellant therein is a State within the meaning of Article 12 of

the Constitution of India having discharging the public functions. The Apex

Court took into consideration the various judgments rendered in this behalf

and held that though it is difficult to draw a line between the public

functions and the private functions more particularly, when it is discharged

by a purely private authority being somewhat blurred yet this scope of the

mandamus is required to be determined on the basis of the nature of the

duties to be enforced despite the fact that the said authority is discharging

the public function and such discharge of duty may be statutory or

otherwise as the source of power is immaterial and therefore, it is

obligatory on the part of the Court to consider whether the mandamus can

be issued against such private body discharging the public duties to enforce

the private law rights. It would be apposite and profitable to quote the

relevant excerpts from the said report which runs thus:

"26. In Federal Bank Ltd. V. Sagar Thomas, this Court analysed

the earlier judgements of this Court and provided a

classification of entities against whom a writ petition may be

maintainable.

"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;

MAT 1278/21 24 of 37

(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."

27. In Binny Ltd. v. V. Sadasivan, a two-Judge Bench of this

Court noted the distinction between public and private

functions. It held thus:

"11. ... It is difficult to draw a line between public

functions and private functions when they are 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."

28. The Bench elucidated on the scope of mandamus:

"29. ... However, the scope of mandamus is limited to

enforcement of public duty. The scope of mandamus is MAT 1278/21 25 of 37

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...... There cannot be

any general definition of public authority or public action.

The facts of each case decide the point."

29. More recently in K. K. Saksena v. International Commission

on Irrigation & Drainage, another two Judge Bench of this Court

held that a writ would not lie to enforce purely private law

rights. Consequently, even if a body is performing a public duty

and is amenable to the exercise of writ jurisdiction, all its

decisions would not be subject to judicial review. The Court held

thus:

"43. What follows from a minute and careful reading of

the aforesaid judgments of this Court is that if a person or

authority is '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 MAT 1278/21 26 of 37

private law rights. There are a 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. The reason is

obvious. 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, 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."

30. Thus, even if the body discharges a public function in a

wider sense, there is no public law element involved in the

enforcement of a private contract of service.

31. Having analysed the circumstances which were relied upon

by the State of Arunachal Pradesh, we are of the view that in

running the hospital, Ramakrishna Mission does not discharge a

public function. Undoubtedly, the hospital is in receipt of some

element of grant. The grants which are received by the hospital

cover only a part of the expenditure. The terms of the grant do

not indicate any form of governmental control in the

management or day to day functioning of the hospital. The MAT 1278/21 27 of 37

nature of the work which is rendered by Ramakrishna Mission,

in general, including in relation to its activities concerning the

hospital in question is purely voluntary."

It has been succinctly laid down in the Ramakrishna (supra) that

even if the institution, body or the organization are bound to adhere the

various obligations imposed under the law but the very existence of the

organization, body or the institution does not emanate from the statute shall

not make such authority amenable under Article 226 of the Constitution of

India. It is further highlighted that every individuals or the organizations are

bound by the statutory requirements either in some or whole of the activities

yet it does not invite the Court to invoke Article 226 of the Constitution if

the right sought to be enforced is private in nature in the following:

"33. It has been submitted before us that the hospital is subject

to regulation by the Clinical Establishments (Registration and

Regulation) Act, 2010. Does the regulation of hospitals and

nursing homes by law render the hospital a statutory body?

Private individuals and organizations are subject to diverse

obligations under the law. The law is a ubiquitous phenomenon.

From the registration of birth to the reporting of death, law

imposes obligations on diverse aspects of individual lives. From

incorporation to dissolution, business has to act in compliance

with law. But that does not make every entity or activity an

authority under Article 226. Regulation by a statute does not

constitute the hospital as a body which is constituted under the MAT 1278/21 28 of 37

statute. Individuals and organisations are subject to statutory

requirements in a whole host of activities today. That by itself

cannot be conclusive of whether such an individual or

organisation discharges a public function. In Federal Bank,

while deciding whether a private bank that is regulated by the

Banking Regulation Act, 1949 discharges any public function,

the 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 MAT 1278/21 29 of 37

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 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."

The Single Bench of this Court in an unreported judgment delivered in

case of Mainak Mohan Das vs. The State of West Bengal & Ors. (WPA

4626 of 2018, decided on 09.12.2021) held that writ petition under

Article 226 of the Constitution would not lie to enforce the private law

contracts more particularly, when the action of the authority is not in the

realm of a public law. It was further held that the matter involving the

discharge of the teacher in a private self-financed educational institution is

within the domain of a private law and its enforcement cannot be secured;

in these words:

MAT 1278/21 30 of 37

"The question of the respondent College imparting education

cannot be the determining factor when the College admittedly a

private self-financing institution. This Court is unable to infer

any public element involved in the matter of discharge of a

teacher in a private college. It also cannot be said that the

petitioner has no other efficacious remedy since the petitioner

can file a civil suit for appropriate relief.

The authorities cited on behalf of the respondents including

Sonia Mahesawari vs. State of West Bengal & Ors.; (2018) 4 CAL

LT 510 (HC), Sushmita Basu & Ors. vs. Ballygunge Siksha

Samity & Ors.; (2006) 7 SCC 680 and K.K. Saksena vs.

International Commission on Irrigation and Drainage & Ors.;

(2015) 4 SCC 670 support the proposition that a writ under

Article 226 would not lie to enforce private law rights and that

the action of the authority must be in the domain of public law

as distinguished from private law. What is most important is

that the College is a Private Engineering College and the only

relief in the writ petition is against the concerned College."

Even in case of Sonia Maheswari vs. State of West Bengal & Ors.

(WP 18224 (w) of 2018 decided on 10.01.2019) the Single Bench held

that the dispute, concerning the demand for refund of salary allegedly paid

in excess being not in conformity with the extant rules in relation to a

private educational institution, is not maintainable in the following :

MAT 1278/21 31 of 37

"28. The grievance of the petitioner is that the respondent

institute is wrongfully demanding refund of salary allegedly paid

in excess since the appointment of the Petitioner as Assistant

Headmistress was allegedly not as per extant Rules and was

irregular. This grievance pertains to the service condition of the

petitioner and is in the domain of private law. It is not that the

petitioner is bereft of a remedy. An ordinary civil action is

available to her. I am of the considered opinion that in view of

the several judgments discussed above, a writ should not be

issued to enforce a private law right.

29. In view of the aforesaid, the preliminary point raised by Mr.

Bari, Learned Advocate, succeeds to the extent that even

assuming that the respondent institute is in principle amenable

to the writ jurisdiction of this Court giving a liberal construction

to the word 'Authority' in Art. 226 of the Constitution, no public

law element is involved and no public law right of the petitioner

is infringed. Hence, no writ should be issued. The writ petition

fails and is dismissed without, however, any order as to costs."

In Trigun Chand Thakur vs. State of Bihar & Ors. reported in

(2019) 7 SCC 513, the appellant therein was appointed as 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 the writ petition before the MAT 1278/21 32 of 37

High Court which were 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. The Apex 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.

The judgment rendered by the Supreme Court in case of State of

Uttar Pradesh (supra) relied upon by Mr. Majumdar does not appear to us

to have any bearing on the issue involved in the instant case. The tender

was issued by the UP State Warehousing Corporation for unloading/loading

of the foodgrains/fertilizer bags from/into railway wagons, tracks etc. from

the railway station to the godown and vice versa after awarding the contract

which subsisted for a period of 10 days and the said authority cancelled the

tender citing an administrative reason. Later on, it transpired that the said

cancellation was made as the authority thought it impractical to go ahead to

the said tender and the tender was reissued for the same work challenging

the said action and the plea of breach of audi alteram partem was taken by

the said successful tenderer. In the backdrop of the aforesaid fact it was

held that the breach of fundamental rights is a public law element as

opposed to a breach of contract and the damages flowing therefrom. The

writ petition is, thus, maintainable on the ground that it involves the public

law elements in the following:

"23. It may be added that every case in which a citizen/person

knocks at the doors of the writ court for breach of his or its MAT 1278/21 33 of 37

fundamental rights is a matter which contains a "public law

element", as opposed to a case which is concerned only with

breach of contract and damages flowing therefrom. Whenever a

plea of breach of natural justice is made against the State, the

said plea, if found sustainable, sounds in constitutional law as

arbitrary State action, which attracts the provisions of Article 14

of the Constitution of India- see Nawabkhan Abbaskhan v. State

of Gujarat (1974) 2 SCC 121: AIR 1974 SC 1471 at paragraph 7.

The present case is, therefore, a case which involves a "public law

element" in that the petitioner (Respondent No.1 before us) who

knocked at the doors of the writ court alleged breach of the audi

alteram partem rule, as the entire proceedings leading to

cancellation of the tender, together with the cancellation itself,

were done on an ex-parte appraisal of the facts behind his back.

24. The other judgments cited by Dr. Singhvi in his Written

Submissions are distinguishable on facts, as all of them deal with

either Public-Interest Litigations or tender applicants who have

been turned down, who approach the writ court under Article 226

and ask for stay orders against a proposed project, which may

then be considerably delayed and escalate cost, this being

contrary to public interest. It is in these situations that

observations have been made that before entertaining such writ

petitions and passing interim orders, the writ court must be very

careful to weigh conflicting public interests, and should intervene MAT 1278/21 34 of 37

only when there is an overwhelming public interest in

entertaining the writ petition. This is what was held in Raunaq

International Ltd. v. I.V.R. Construction Ltd. and Ors. (1999) 1

SCC 492: (AIR 1999 SC 393) at paragraphs 11 to 13, 24 and 25.

To similar effect is the judgment in Jagdish Mandal v. State of

Orissa and Ors. (2007) 14 SCC 517 at paragraph 22."

The law enunciated in the above reports leaves no ambiguity that the

writ petition is maintainable against the private institution provided it

discharges the public duties and most important public functions. Merely

because a writ petition can be maintained against the private individuals

discharging the public duties and/or public functions yet the writ petition is

not maintainable 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 yet 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.

MAT 1278/21 35 of 37

In the instant case, the dispute pertains to the action of the appellant

in reducing the salary to the extent of 40 per cent and the stoppage of salary

from the month of July 2020. Admittedly, the Respondent no. 1 was

appointed by the appellant initially for a probation period which was

extended from time to time. There is no rule governing such service nor such

appointment is required for the approval of the appropriate Government. It

is purely a contractual payment and, therefore, in absence of any rules

pertaining to such services framed by the appointment it assumes a pure

character of a private law and, therefore, the writ jurisdiction cannot be

invoked to enforce the private contract.

The plea of the Respondent no. 1 that the appellant is affiliated with

the Central Board of Secondary Education and guided and regulated by the

bye-laws framed by it does not appear to be correct. The Central Board of

Secondary Education though a statutory authority amenable under the writ

jurisdiction but, his horizon is restricted to regulating, guiding and

conducting the examinations and issuing certificates to the students. The

said statutory authority does not have any direct or pervasive control over

the private affairs of the institution except to the extent of affiliation nor the

appointment of the teachers are required to be approved by it . The said

Board has no control over the financial affairs of the institution nor over the

functioning of the said institution except to the extent of imparting

education in terms of the bye-laws. Even though one of the conditions of the

bye-laws appears to have some remotest nexus to the cause of action MAT 1278/21 36 of 37

pleaded in the writ but the same is within the circumference of the affiliation

and does not impinge upon the private contracts.

We, therefore, do not find that the decision of the Single Bench in this

regard can be sustained wherein it has been held that the appellant

discharging the public duties and/or functions are amenable to the

jurisdiction of the Writ Court and writ petition in this regard is

maintainable. We have already held that the Respondent no. 1 has sought to

enforce the rights emanating from the private law, even if the appellant

being the private unaided educational institution is discharging the public

duties/functions but the writ petition is not maintainable in relation to a

cause of action pleaded in the writ petition.

The point of the maintainability succeeds.

The order impugned is set aside. In the result, the appeal is allowed.

Urgent photostat certified copies of this judgment, if applied for, be

made available to the parties subject to compliance with requisite

formalities.

      I agree.                                           (Harish Tandon, J.)




(Rabindranath Samanta, J.)
                                                             MAT 1278/21 37 of 37




Later:

After the judgement is delivered in open Court, the learned Advocate

for the respondent/writ petitioner prays for stay of the impugned judgement.

After considering the submissions and the points, which are involved

in the instant writ petition, we do not think that it is a fit case where such

prayer can be allowed.

Accordingly, the prayer for stay is refused.

(Harish Tandon, J.)

(Rabindranath Samanta, J.)