Madhya Pradesh High Court
Neelesh Tiwari vs Central Board Of Secondary Education ... on 15 May, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
WRIT PETITION No. 15757 of 2025
NEELESH TIWARI
Versus
CENTRAL BOARD OF SECONDARY EDUCATION AND OTHERS
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Appearance:
Shri Rakshit Gupta - Advocate for the petitioner.
Shri D.P. Singh - Advocate for the respondent no.1
Shri Somyadeep Dwivedi - Advocate for the respondents no.2 to 5.
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Whether approved for reporting: Yes/No.
Reserved for order on: 07/05/2025
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ORDER
(Passed on 15/05/2025)
The petitioner has invoked under Article 226 of the Constitution of
India challenging the order dated 07.04.2025 (Annexure P/1) whereby the
respondents have terminated the petitioner's service w.e.f. 08.05.2025
which covers one month advance notice period. From the order, it is
gathered that the petitioner was appointed on probation as TGT (Sankrit).
[2]. The petitioner has challenged the impugned order on various
grounds. However, before adverting to the merits of the case, the
preliminary objection raised by the respondents regarding maintainability
of this writ petition, needs to be considered.
[3]. The learned counsel for the respondents, on service of Humdust
notice, has appeared and raised a preliminary objection regarding
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maintainability of the instant writ petition on the ground that the
respondent, No.1 Air Force School, is a private unaided educational
institution being run by Indian Air Force Educational & Cultural Society,
which is a society registered under Societies Registration Act. He thus
submits that it, being purely a private unaided educational institution, is
not a State within the meaning of Article 12 of the Constitution of India, is
not amenable to writ jurisdiction of this Court under Article 226 of the
constitution of India. The learned counsel for the respondents placed
reliance upon the Apex Court judgment in the case of St. Mary's
Education Society and Another Vs. Rajendra Prasad Bhargava and
others reported in (2023) 4 SCC 498.
[4]. Responding to the aforesaid preliminary objection, learned counsel
for the petitioner, even though could not dispute that the respondent
school is a private unaided educational institution being run by the
aforesaid Society, submitted that since the school is engaged in imparting
education, which is a public duty, therefore, writ petition under Article 226
of the Constitution of India is maintainable. He placed reliance upon the
judgment of Indore Bench of this Court in the case of Vinita Nair & Ors.
Vs. Union of India & Ors. (W.P. No. 11165 of 2021) wherein, the
Coordinate Bench has distinguished the judgment of Apex Court in the
case of St. Mary's Education Society (supra) and has held that the writ
petition touching the service dispute of a teacher of a private unaided
school, is maintainable. He further referred to the Division Bench
judgment in the case of Laurels School International thr. its Authorized
Representative Vs. Union of India & Ors. (W.A. No.1619 of 2022)
wherein, the aforesaid order passed by learned Single Judge has been
affirmed. The learned counsel for the petitioner also placed reliance upon
the judgment passed by Coordinate Bench at Gwalior in the case of
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Mritunjaya Shukla Vs. Central Board of Secondary Education & Ors.
(W.P. No. 5202 of 2016) wherein, also the writ petition was held to be
maintainable.
[5]. Considered the arguments and perused the record.
[6]. Considering the aforesaid arguments of the counsel for the parties,
the issue crops up for consideration of this Court is:
"Whether a service dispute of a teacher
involving a private educational institution can
be adjudicated in a writ petition filed under
Article 226 of the Constitution of India?"
[7]. Before discussing the judgments passed by this Court, which are
relied upon by learned counsel for the petitioner, it is profitable to refer to
the judgment passed by the Apex Court in the case of St. Mary's
Education Society (supra). After discussing various previous judgments,
the Apex Court summed up its conclusion in paragraph - 75 as under;
"75. We may sum up our final conclusions as
under:
75.1. An application under Article 226 of the
Constitution is maintainable against a person or
a body discharging public duties or public
functions. The public duty cast may be either
statutory or otherwise and where it is
otherwise, the body or the person must be
shown to owe that duty or obligation to the
public involving the public law element.
Similarly, for ascertaining the discharge of
public function, it must be established that the
body or the person was seeking to achieve the
same for the collective benefit of the public or a
section of it and the authority to do so must be
accepted by the public.
75.2. Even if it be assumed that an
educational institution is imparting public
duty, the act complained of must have a
direct nexus with the discharge of public
duty. It is indisputably a public law action
which confers a right upon the aggrieved to
invoke the extraordinary writ jurisdiction under
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Article 226 for a prerogative writ. Individual
wrongs or breach of mutual contracts without
having any public element as its integral part
cannot be rectified through a writ petition under
Article 226. Wherever Courts have intervened
in their exercise of jurisdiction under Article
226, either the service conditions were
regulated by the statutory provisions or the
employer had the status of "State" within the
expansive definition under Article 12 or it was
found that the action complained of has public
law element.
75.3. It must be consequently held that while a
body may be discharging a public function
or performing a public duty and thus its
actions becoming amenable to judicial
review by a constitutional court, its
employees would not have the right to
invoke the powers of the High Court
conferred by Article 226 in respect of matter
relating to service where they are not
governed or controlled by the statutory
provisions. An educational institution may
perform myriad functions touching various
facets of public life and in the societal sphere.
While such of those functions as would fall
within the domain of a "public function" or
"public duty" be undisputedly open to
challenge and scrutiny under Article 226 of the
Constitution, the actions or decisions taken
solely within the confines of an ordinary
contract of service, having no statutory force
or backing, cannot be recognised as being
amenable to challenge under Article 226 of
the Constitution. In the absence of the service
conditions being controlled or governed by
statutory provisions, the matter would remain
in the realm of an ordinary contract of service.
75.4. Even if it be perceived that imparting
education by private unaided school is a public
duty within the expanded expression of the
term, an employee of a non-teaching staff
engaged by the school for the purpose of its
administration or internal management is only
an agency created by it. It is immaterial
whether "A" or "B" is employed by school to
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discharge that duty. In any case, the terms of
employment of contract between a school and
non-teaching staff cannot and should not be
construed to be an inseparable part of the
obligation to impart education. This is
particularly in respect to the disciplinary
proceedings that may be initiated against a
particular employee. It is only where the
removal of an employee of non-teaching staff is
regulated by some statutory provisions, its
violation by the employer in contravention of
law may be interfered with by the Court. But
such interference will be on the ground of
breach of law and not on the basis of
interference in discharge of public duty.
75.5. From the pleadings in the original writ
petition, it is apparent that no element of any
public law is agitated or otherwise made out. In
other words, the action challenged has no
public element and writ of mandamus cannot
be issued as the action was essentially of a
private character."
[8]. A perusal of aforesaid conclusions make it evident that a writ
petition under Article 226 of the Constitution of India can be maintained
by the High Court even against a body which is not a State or an Authority
or an Instrumentality of the State but there must be an element of public
duty involved in the action complained of. In other words, the action
impugned in the writ petition should be connected with the element of
public duty being discharged by such an Authority.
[9]. The Apex Court judgment in the case of St. Mary's Education
Society was considered by Indore Bench of this Court in the case of
Vinita Nair (supra). The Apex Court judgment was distinguished by this
Court holding that the employee before Apex Court was a non-teaching
staff. It is held that since the petitioners in Vinita Nair case are teachers
and are engaged in imparting education to the students, the same has a
direct nexus with the public duty being discharged by the educational
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institution. Therefore, the writ petition filed in respect of their service
dispute was held to be maintainable. The observation of this Court in para-
13 being relevant is reproduced hereunder:
"13. A bare perusal of the decision rendered by
the Supreme Court in the case of St. Mary's
Educational Society (supra), it is clear as noon
day that a distinction has been made between
the employees of an unaided educational
institution, viz., the ones who are directly
involved in the main object of the institution
i.e., to impart the education and then there are
others, other than the teachers, whose role is
secondary to the main purpose of the
institution. And, a teacher, undoubtedly is an
employee, who imparts education on behalf of
the unaided educational institution, has a direct
nexus to the main purpose of the educational
institution."
[10]. Thus, this Court distinguished St. Mary's judgment on the ground
that the employee in the case of St. Mary's (supra) was engaged for a
non-teaching work which had no direct connection with the element of
public duty. On the other hand, the employees before the Indore Bench
were imparting education to the students and, therefore, they were found
to be directly connected with the public duty being discharged by the
educational institution and, therefore, the petition under Article 226 of
Constitution was held to be maintainable. The judgment of learned Single
Judge in the case of Vinita Nair case, was affirmed by the Division Bench
in the case of Laurels Scholl International (supra).
[11]. Likewise the learned Single Judge at Gwalior Bench in the case of
Mritunjaya Shukla (supra) has also held a writ petition to be
maintainable.
[12]. Thus, as per the view taken by this Court, if the petitioners before
the High Court are the teachers, the writ petition is maintainable as they
are directly connected to public duty being discharged by educational
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institution. On the other hand, if the employees are engaged in non-
teaching work, the writ petition is held to be not maintainable.
[13]. The petitioner, in the case in hand, is also a teacher and, therefore, if
the aforesaid judgments in the case of Vinita Nair and Mrityunjaya
Shukla, are to hold the field, this petition is to be held maintainable.
However, Recently, the Apex Court has again considered the similar issue
in the case of Army Welfare Education Society New Delhi Vs. Sunil
Kumar Sharma & Ors. reported in 2024 SCC Online SC 1683. In the
case before the Apex Court, the employees were the persons engaged in
teaching as well as non-teaching work. After considering various previous
judgments, including the judgment rendered in the case of St. Mary's
Education Society (supra), the Apex Court in para-19 held as under:
"19. Thus, the error is in para 27 when the
learned single Judge says that since the school
imparts education, the public element should be
kept in mind. Undoubtedly, any institution
imparting education discharges public duty and,
therefore, public element may be involved.
However, the learned single Judge
overlooked the fact that the dispute between
the school and the teachers and also the non-
teaching staff is relating to their service
conditions. In such circumstances, public
element will not come into play."
[14]. Thus, in view of the observations made by the Apex Court in para-
19, it is evident that the distinguishing feature pointed-out by this Court in
Vinita Nair's case is impliedly disapproved. In other words, the Apex
Court has not accepted the distinction between the teaching and non-
teaching staff working in a private unaided institution. It has been held
that there is no public element involved in the service dispute of
employees of private educational institution- that may be teaching or non-
teaching staff. After exhaustively referring to various judgments, the Apex
Court, in the case of Army Welfare Education Society, has recorded in
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paragraph-42 as under:
"42. In the penultimate para, this Court ruled as
under: (Binny case SCC p.674, para 32)
"32. Applying these principles, it can
very well be said that a writ of
mandamus can be issued against a
private body which is not a "State"
within the meaning of Article 12 of the
Constitution and such body is amenable
to the jurisdiction under Article 226 of
the Constitution and the High Court
under Article 226 of the Constitution can
exercise judicial review of the action
challenged by a party. But there must be
a public law element and it cannot be
exercised to enforce purely private
contracts entered into between the
parties. (Emphasis supplied)."
[15]. The issue as to whether the teachers of private unaided institution
are involved in public duty or not, was directly under consideration of
Apex Court in the case of S.K. Varshney Vs. Our Lady of Fatima
Higher Secondary School reported in (2023) 4 SCC 539. The Apex
Court held as under:
"1. In these appeals same questions of law and
facts are involved and they are disposed of by
this short common order. The appellants were
teachers employed by unaided minority
private institutes.
*** *** ***
6. The counsel for the appellant relied on a
decision rendered by this Court in K.
Krishnamacharyulu v. Sri Venkateswara Hindu
College of Engg. [K. Krishnamacharyulu v. Sri
Venkateswara Hindu College of Engg., (1997) 3
SCC 571 : 1997 SCC (L&S) 841] He
particularly relied on the observation made by
this Court in para 4 of the order that when an
element of public interest is created and the
institution is catering to that element, the
teacher, being the arm of the institution, is also
entitled to avail of the remedy provided under
Article 226.
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7. This Court in Sushmita Basu v. Ballygunge
Siksha Samity [Sushmita Basu v. Ballygunge
Siksha Samity, (2006) 7 SCC 680 : 2006 SCC
(L&S) 1741] in which one of us (Sema, J.) is a
party, after considering the aforesaid judgment
has distinguished the ratio by holding that the
writ under Article 226 of the Constitution
against a private educational institute would be
justified only if a public law element is
involved and if it is only a private law remedy
no writ petition would lie. In the present cases,
there is no question of public law element
involved inasmuch as the grievances of the
appellants are of personal nature."
[16]. Thus, in view of the aforesaid discussion, the law laid down by the
Apex Court in the case of Army Welfare Educational Society, New
Delhi (supra) as also in the case of S.K. Varshney (supra) is the binding
precedent and is binding on this Court. The contrary view taken by this
court in the case of Vinita Nair & Mrityunjay Shukla (supra) has been
impliedly disapproved.
[17]. At this stage, yet another judgment of Coordinate Bench of this
Court at Jabalpur has dealt with the similar issue in the case of Bhawna
Pant Vs. Indian Air Force Educational And Cultural Society & others
(W.P. No.27322 of 2025). After exhaustively referring to Apex Court
judgment in the case of St. Mary's Education Society (supra), Army
Welfare Educational Society New Delhi Vs. Sunil Kumar Sharma
(supra) and another judgment in the case of Union of India Vs. Dilip
Kumar Pandey (Civil Appeal No.1074 of 2010), the Court held the writ
petition to be not maintainable. The Court has also take into account the
judgment of this court in the case of Vinita Nair (supra) and is not
followed in view of Apex Court judgment in the case of Dilip Kumar
Pandey (supra).
[18]. The Coordinate Bench of this Court in the case of Mrityunjaya
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Shukla (supra) considered the provisions of Right to Education Act, 2009
and CBSE affiliation By-laws while holding the writ petition
maintainable. However, this view is also not approved by Apex Court in
St. Mary's case and it held as under:
"35. Thus, where a teacher or non-teaching staff
challenges action of Committee of Management
that it has violated the terms of contract or the
rules of the Affiliation Byelaws, the appropriate
remedy of such teacher or employee is to
approach the CBSE or to take such other legal
remedy available under law. It is open to the
CBSE to take appropriate action against the
Committee of Management of the institution
for withdrawal of recognition in case it finds
that the Committee of Management has not
performed its duties in accordance with the
Affiliation Bye-laws.
36. It needs no elaboration to state that a school
affiliated to the CBSE which is unaided is not a
State within Article 12 of the Constitution of
India [See : Satimbla Sharma v. St. Paul's
Senior Secondary School]. Nevertheless the
school discharges a public duty of imparting
education which is a fundamental right of the
citizen [See : K. Krishnamacharyulu v. Sri
Venkateshwara Hindu College of Engineering].
The school affiliated to the CBSE is therefore
an "authority" amenable to the jurisdiction
under Article 226 of the Constitution of India
[See : Binny Ltd. v. V. Sadasivan]. However, a
judicial review of the action challenged by a
party can be had by resort to the writ
jurisdiction only if there is a public law element
and not to enforce a contract of personal
service. A contract of personal service includes
all matters relating to the service of the
employee - confirmation, suspension, transfer,
termination, etc. [See : Apollo Tyres Ltd. v. C.P.
Sebastian]."
[19]. In view of consideration made above, it has to be held that the
petitioner, working as teacher in the respondent school which is a private
unaided school, is not entitled to invoke Article 226 of the Constitution of
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India for challenging the impugned order (Annexure P/1).
[20]. In view of the aforesaid, the instant writ petition is held to be not
maintainable and is accordingly, dismissed. However, the petitioner is at
liberty to avail its remedy before the appropriate forum.
(ASHISH SHROTI)
JUDGE
Vpn/-
