How Does An Unaided Private Educational Institution Come Within Ambit Of Article 226 Of Constitution? Madhya Pradesh High Court Explains

The bench comprising of Justice M.R. Phadke observed that the Institution was parting education, which involves the element of public law, thereby enabling the scope of the Court to exercise its power under Article 226 of the Constitution-

The Courts intervenes in exercise of jurisdiction under Article 226, whenever the service conditions are regulated by statutory provisions or the employer had the status of 'State' within the expansive definition under Article 12 or it was found that the action complained of has public law element. Thus, to sum up, a public duty, to be enforceable by writ of mandamus, does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.

Facts of the case were that the Petitioner was appointed as the Principal of the Respondent Institution, but his services were later terminated, rather abruptly. He made representations to the Institution to issue him the relieving letter and to clear his terminal dues, but to no anvil. He then approached the District Collector, but he could not get the desired results. Aggrieved, he moved the Court by filing a writ petition under Article 226 of the Constitution.

Supporting the maintainability of his petition, the Petitioner submitted before the Court that clause 19(2)(a)(i) of the Rules of Central Board of Secondary Education (Respondent No.1) empowers it to withdraw the affiliation of a school which is found guilty of not paying salaries and allowances to teachers and other employees. Thus, the CBSE cannot duck out from its liability.

Turning its attention to the Respondent Institution, the Petitioner argued that private institutions imparting education to students perform a public duty, which is in the nature of State function and accordingly, such institutions become amenable to the Court's writ jurisdiction under Article 226. Further, placing reliance on the legislative intent to make right to education a fundamental right, the Petitioner argued that the onus upon the Respondent Institution brought it squarely within the ambit of State under Article 12.

Per contra, the Respondent Institution argued that it did not fall within the purview of Article 12 since it was an autonomous body under the Ministry of Education, having its own bye-laws, rules and regulations. The Respondent Institution further pointed out that it was a privately funded institution and is not a recipient of any financial contribution from the Union Government or the State Government. It was also submitted that taking note of the functioning of the Respondent Institution, CBSE was not a necessary party. Thus, the Respondent Institution contended that the writ petition was not maintainable.

Examining the submissions of parties, documents on record and the jurisprudence laid down by the Apex Court in K.K. Saksena v. International Commission on Irrigation & Drainage and Ramakrishna Mission v. Kago Kunya, the Court summarised that in cases such as that of the Petitioner, two ingredients are required to be satisfied for the Court to invoke its jurisdiction under Article 226:

1. Character of public law involved in lis
2. Violation of fundamental/legal right of Petitioner

With regard to the hurdle of the Institution being an unaided school, the Court observed-

To impart education is a State function, it is the obligation of the welfare State to ensure that children are imparted education, which is one of the directive principles of State Policy enshrined in Article 41 of the Constitution of India. The State can, however, delegate its functions to the private sector educational institutions and while doing so, the State has created its limbs as it was in the case of companies and corporation to discharge its constitutional obligation of imparting education at all levels from primary to higher education.

Referring to the relevant provisions of the Right to Education Act, Right of Children to Free and Compulsory Education Rules, 2011 and CBSE Affiliation Bye-Laws, the Court concluded that their conjoint reading favours the case of the Petitioner-

…the organic inference that follows is that since the said school which is run by respondent No.2, being an unaided school, by virtue of the Section 2(n) of the RTE Act, coupled with Rules of 2011 and CBSC affiliation Bye-laws had come to discharge a public duty as was cast upon it by the said statutes. Such a public duty stands obligatory, in my opinion, in terms of both Article 21A of the Constitution of India as well as the RTE Act, Rules of 2011 and CBSC Affiliation Byelaws which gave effect to the fundamental right in unequivocal terms.

Therefore, I am of the informed opinion, that the quoted provisions of the RTE Act read with quoted provisions of the Rules of 2011 and CBSC Affiliation Byelaws, indeed regulates the contract of service of the petitioner, and this thereby falls within the exception as stated in K.K. Sakesna (supra) and Kago Kunya (supra).

The Court, thus, noted that there was patent manifestation of the violation of the Petitioner's rights, which makes it a fit case for judicial review under Article 226 of the Constitution of India.

The Court then dwelled upon the decision of a division bench of the Court in Bela Saxena v. State of Madhya Pradesh, wherein the Court had upheld the decision of the writ court in dismissing a petition filed against a private school by referring to the decision of the Supreme Court in Trigun Chand Thakur v. State of Bihar. Discussing the concepts of obiter dictum and ratio decidendi within the framework of Article 141 of the Constitution, the Court observed-

…in the light of the above discussion and the legal pronouncements, the Judgment of Supreme Court in the matter of Trigun Chand (supra) on which the order of Division Bench of this Court in the matter of Bela Saxena (supra) is based, is a decision which is not express and not founded on reasons nor it proceeds on consideration of issue seized therein, cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141.

With the abovementioned conclusions, the Court concurred with the contentions put forth by the Petitioner-

Agreeing with the arguments advanced on behalf of the petitioner, I am of the considered view that the present writ petition against respondents No 2 & 3 is maintainable. Respondents No.2 & 3 are therefore, directed to make the payment of all terminal dues due to the petitioner and also issue his relieving certificate. The entire exercise should be completed within a period of 1 month from the date of receiving of certified copy of this order, else amount due would carry interest at the rate of 6% from the date it fell due till its realization.

With the aforesaid observations, the Court held that the petition was maintainable and thus, the Respondent Institution was directed to clear the terminal dues that they owed to the Petitioner. Accordingly, the petition was allowed.

Representations

Ms. Smriti Sharma, Counsel for the Petitioner

Mr. D.P. Singh, Central Board of Secondary Education

Mr. Yogesh Chaturvedi, Counsel for Respondent No.2 and No.3

Case Title: MRITUNJAYA SHUKLA VERSUS CENTRAL BOARD OF SECONDARY EDUCATION AND ORS.

Citation: 2022 LiveLaw (MP) 199