Writ Petition Maintainable Against Private Un-aided School Since It Discharges Public Function: Kerala HC [Read Judgment]

 The High Court of Kerala  has held that the conditions of service of teachers in private un-aided schools can be enforced by exercising writ jurisdiction under Article 226 of the Constitution of India. The ruling came in a batch of writ petitions filed by teachers in private un-aided schools. Their grievances varied from non-payment of fair wages, illegal termination without notice, and arbitrary disciplinary proceedings. The petitioners contended that since private schools were discharging a public function they were amenable to writ jurisdiction. Opposing this, the school management argued that writ jurisdiction can be invoked qua public function alone, and not to seek relief on contract of service, which in essence was a pure civil right.

In order to determine the vexed issue as to whether contract of service in a private educational institution could be enforced through writ jurisdiction, the Court appointed two advocates as amicus curie.

The conclusions of the Court were entirely premised on the Right of Children to Free and Compulsory Education Act 2009, and Article 21A of the Constitution. The Court found that after the enactment of the RTE Act, every school, whether it is aided or un-aided, had to get recognition under the said Act.  The Act contained provisions dealing with qualifications, conditions of service, duties of teachers and redressal system for grievances of teachers. The Rules framed under the Act by the Kerala Government also prescribe that the salary and allowances of teachers in recognized school should be as prescribed by Government from time to time. In this backdrop, the rights of teachers were not merely contractual, but are elevated to statutory rights. Hence, the Court can make interventions in exercise of writ jurisdiction, on finding infringement of such statutory rights. It was observed as follows :

It is, therefore abundantly clear that the recognition of unaided schools and the terms and conditions of service of teachers appointed thereto are now specifically matters which are governed by statutory provisions and modulated by rules formulated thereunder. The source of power for issuance of the RTE Act is the insertion of Article 21A in the Constitution by the Constitution (Eighty-sixth Amendment) Act, 2002. In the light of the above statutory provisions, the question whether a writ can be issued to enforce the service conditions of teachers of recognised unaided schools is no longer in issue which requires a detailed consideration. In the light of the provisions enumerated above, what is now sought for by the petitioners in the writ petition is only the enforcement of the statutory right of the teachers under the RTE Act and the Rules framed thereunder.

Read the Judgment Here