On 01.06.2021 the Calcutta High Court in its bench consisting of Justice Shekhar B. Sharaf, in the case of Bineeta Patnaik Padhi Vs. Union of India & Ors. held that one Army Public School, Panagarh, is held to be a State under Article 12 of the Constitution as it was discharging public duty.  It further stated that if the petitioner has felt that she stands violated of her precious fundamental right or any legal right for that matter, it is this Court‘s bounden duty to inspect the propriety of the same.

Facts of the case:

The present Writ petition under Article 226 of the Constitution has been filed by the petitioner claiming that while she was discharging her duties as the Principal of Army Public School at Panagarh and whilst serving in her tenure as an extended probationer, she was terminated by the chairman of the same school from such post in violation of both her fundamental rights as well as certain statutory rights.

Arguments on behalf of the Petitioner:

Ms. Sonal Sinha, learned counsel appearing on behalf of the petitioner argued on the following grounds:

  1. It was contended that based on various decisions of the Supreme Court the Right to Education is a fundamental right under Article 21 of the constitution and therefore a denial of the same would result in the violation of one’s fundamental right.
  2. Reliance was also placed upon the decision of the Apex Court while examining the issue of termination of an Assistant Teacher in a private unaided institution, where it was held that a writ application is indeed maintainable in such cases even as against the private unaided educational institutions.
  3. It was submitted that that private institutions imparting education to students from the age of six years and onwards, including higher education perform a public duty and thus falls under the purview of Article 12.
  4. It was emphasised that even if the relationship between the petitioner and the respondent was considered to have emanated out of a contract, it would not shut the doors of this Court in invoking the writ jurisdiction under Article 226 of the Constitution.
  5. The counsel while concluding prayed before the court to invoke the writ of mandamus to enforce service conditions of teachers serving in private unaided educational institutions.

Arguments on behalf of the Respondents:

Mr. Y.J. Dastoor, learned Additional Solicitor General, appearing on behalf of the contesting Respondents argued on the following grounds:

  1. It was argued that such writ application was not maintainable for the reason that the said school is a private unaided educational institution operated by the Army Welfare Education Society.
  2. Mr. Dastoor also argued that since the said school was a private unaided school and the AWES which is managing it, is not a public body, in view of the mandate of Article 12 of the Constitution of India therefore the affairs of the said school would be amenable to the writ jurisdiction of this Court.
  3. He also submitted that there is neither a violation of any statutory right nor any fundamental right guaranteed under Part III of the Constitution of India, as alleged by the petitioner.
  4. It was also contended that the jurisdiction under Article 226 could only be exercised by a constitutional court only if, an element of public law is involved which is the sine qua non for the invocation of this Court‘s powers under Article 226 of the Constitution and such power is not to be trifled with merely to enforce private contracts of service/ or service related contracts entered into between two conscious and competent parties.
  5. It was further submitted that the fact that the petitioner was serving under a period of extended probation and it was legally permissible for both the AWES or the said school to evaluate the petitioner‘s performance by virtue of her status as a probationer, making her eligible for either a confirmation or a discharge from such service and in the event of a discharge, such contract could not be enforced through writ application under Article 226 of the Constitution of India.

 

 

Observation and Judgement of the case:

The following observation has been made by the Hon’ble bench of Calcutta High Court:

  1. In the case of Article 226, in addition to the enforcement of a fundamental right, a petitioner can also seek the enforcement of any legal right.
  2. If the petitioner has felt that she stands violated of her precious fundamental right or any legal right for that matter, it is this Court‘s bounden duty to inspect the propriety of the same.
  3. A writ of mandamus can be issued to a private body/authority which discharges ‘public function’ under Article 226 of the Constitution of India.
  4. The said school which is run by AWES had come to discharge a public duty which stand imposed in terms of both Article 21A of the Constitution of India as well as the RTE Act which gave effect to the fundamental right in unequivocal terms.

On considering the above the objection on the ground of maintainability of the petition was rejected. Further the said school, Army Public School, Panagarh, is held to be a State‘ under Article 12 of the Constitution since it was discharging public duty.

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