Private Unaided Education Institutions Discharge Public Duty Of Imparting Education; Amenable To Writ Jurisdiction: Calcutta High Court

"Such a public duty stands imposed, in my opinion, 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," a Single Bench of Justice Shekhar B Saraf observed.

Reliance was placed on Marwari Balika Vidyalaya v. Asha Srivastava whereby the Supreme Court held as maintainable, a writ petition filed by a teacher against a private unaided educational institution, challenging the termination of her services.

The Court's attention was also drawn to a Full Bench decision rendered by the Allahabad High Court in Roychan Abraham v. State of UP, AIR 2019 All 96, where it was held that private institutions imparting education to students from the age of six years and onwards, including higher education perform a public duty; accordingly, such institutions become amenable to the writ jurisdiction.

Significantly, it has been clarified in the judgment that even if an authority is deemed to be a 'State' under Article 12 of the Constitution, the constitutional courts before issuing any writ, particularly that of mandamus, must satisfy that such impugned action of the authority concerned which is under challenge, forms a part of the public law as opposed to private law. (Reliance was placed on KK Saksena v. International Commission on Irrigation & Drainage, (2015) 4 SCC 670)

The development comes in a writ petition filed by Bineeta Patnaik Padhi, an educationist by profession, against termination of her services as the Principal of Army Public School at Panagarh whilst serving in her tenure as an extended probationer.

The school is operated by the Army Welfare Education Society and it was the argument of YJ Dastoor 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, neither the said school nor the society overseeing the affairs of the said school would be amenable to the writ jurisdiction of this Court.

Advocate Sonal Sinha, representing the Petitioner, argued that such termination was in violation of both her fundamental rights as well as certain statutory rights.

She stated that right to education is a fundamental right, thus all schools are discharge a public duty and consequently, are amenable to writ jurisdiction.

Reliance was placed on VR Rudani where the Supreme Court ruled that a writ of mandamus could lie to any person or authority performing a public duty and owing a positive obligation to the affected party, wherein such a duty need not be imposed by statute.

"While it is an admitted fact that the AWES operates all Army Public Schools across the country; the individual schools, as the said school in this case, have to conform to the statutory compliances of the RTE Act, WBRTE Rules…" she argued.

She also relied on Supreme Court's decision in DS Grewal v. Vimmi Joshi, (2009) 2 SCC 210, to stress that Army Public School is a public enterprise.

Based on the above submissions, the Single Bench ruled,

"what follows is the fact that even if AWES was considered to be a private body/authority, a writ of mandamus under Article 226 of the Constitution could be issued to the same if it were proved that it is performing a public duty and it owed a positive obligation to an affected party. The reason for such permissibility is the phraseology of Article 226 itself."

It added,

"A bare perusal of the schematics of the RTE Act, exhibits that the legislative intent of the Parliament was to ensure that teachers were not left in the lurch in situations and their grievances in school disputes, would have to be addressed satisfactorily. Specific provisions of the RTE Act lay down with utmost clarity, that compliance with the principles of natural justice are a must while specific grievance redressal mechanisms would be laid down by the 'appropriate government' as defined in the RTE Act."