The Supreme Court has held that a writ petition raising service disputes against private educational institutions are not maintainable, if they are not governed or controlled by the statutory provisions.

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 the Bench observed.

The Bench comprising of Anirudhha Bose & JB Pardiwala, JJ held that while private unaided minority institution might be touching the spheres of public function or performing a public duty, 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.

The Supreme Court was dealing with the case relating to a private unaided minority educational institution and its disciplinary committee, wherein, the Madhya Pradesh High Court had held that a writ petition filed by an employee of a private unaided minority educational institution seeking to challenge his termination from service was maintainable in law.

In Civil Appeal No. 5789 of 2022 before the Supreme Court, the educational institution St, Mary's Education Society raised the following issues:

1. Whether a writ petition under Article 226 of the Constitution of India is maintainable against a private unaided minority institution?
2. Whether a service dispute in the private realm involving a private educational institution and its employee can be adjudicated in a writ petition filed under Article 226 of the Constitution? In other words, even if a body performing public duty is amenable to writ jurisdiction, are all its decisions subject to judicial review or only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction?

Analysis

1. Whether A Writ Petition Under Article 226 Of The Constitution Of India Is Maintainable Against A Private Unaided Minority Institution?
   The CBSE is only a Society registered under the Societies Registration Act, 1860 and the school affiliated to it is not a creature of the statute and hence not a statutory body. The school is affiliated to the CBSE for the sake of convenience, namely, for the purpose of recognition and syllabus or the courses of study and the provisions of the Act 2009 and the rules framed thereunder.
   
   In [Km. Regina Vs St. Aloysins High Elementary School, & Anr, (1972) 4 SCC 188 : AIR 1971 SC 1920], Supreme Court held that the mere fact that an institution is recognised by an authority, does not itself create an enforceable right to an aggrieved party against the Management by a teacher on the ground of breach or non­compliance of any of the Rules which was part of terms of the recognition. It was observed as under:
   
   "The Rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce these rules upon the management. But the enforcement of such rules is a matter between the Government and the management, and a third party, such as teacher aggrieved by some order of the management cannot derive from the rules any enforceable right against the management on the ground of breach or non-compliance of any of the rules."
   
   In [Km. Anita Verma Vs D. A. V. College Management Committee, Unchahar, Rai Bareilly, (1992) 1 UPLBEC 30]:
   ....30 where the services of a teacher were terminated, the Court held that the writ petition under Article 226 is not maintainable as the institution cannot be treated as the instrumentality of the State.
   
   The matter was considered in detail in M/S Habans Kaur Vs. Committee of Management, Guru Teghahadur Public School, Meerut and Anr., 1992 Labour and Industrial Cases 2070 (All), wherein the services of the petitioner were terminated by the Managing Committee of the institution recognised by the C.B.S.E. It was held that the Affiliation Bye­laws framed by the C.B.S.E. has no statutory force.
   
   The Court under Article 226 of the Constitution of India can enforce compliance of statutory provision against a Committee of Management as held in a Full Bench decision of this Court in Aley Ahmad Abdi v. District Inspector of Schools, Allahabad and Ors., AIR 1977 All. 539. The Affiliation Bye­laws of C.B.S.E. having no statutory force, the only remedy against the aggrieved person is to approach C.B.S.E. putting his grievances in relation to the violation of the Affiliation Bye­laws by the institution.
   
   The Supreme Court noted that the appellant - School is a private unaided minority educational institution, which enjoys the protection guaranteed under Article 30 (1) of the Constitution of India and there is absolutely no Governmental control over the functioning and administration of the school.
   
   The school is presently affiliated to the Central Board of Secondary Education and is thus governed by its Rules and Byelaws, the Court noted.
   
   CBSE itself is not a statutory body nor the regulations framed by it has any statutory force. Secondly, the mere fact that the Board grants recognition to the institutions on certain terms and conditions itself does not confer any enforceable right on any person as against the Committee of Management, the Supreme Court observed.
    
2. Whether a service dispute in the private realm involving a private educational institution and its employee can be adjudicated in a writ petition filed under Article 226 of the Constitution? In other words, even if a body performing public duty is amenable to writ jurisdiction, are all its decisions subject to judicial review or only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction?
   In the case of [Committee of Management, Delhi Public School & Anr. Vs. M. K. Gandhi, (2015) 17 SCC 353], Supreme Court held that no writ is maintainable against a private school as it is not a "State" within the meaning of Article 12 of the Constitution of India.
   
   In the case of [Trigun Chand Thakur Vs. State of Bihar & Ors., (2019) 7 SCC 513], Supreme Court upheld the view of a Division Bench of the Patna High Court which held that a teacher of privately managed school, even though financially aided by the State Government or the Board, cannot maintain a writ petition against an order of termination from service passed by the Management.
   
   In case of [Satimbla Sharma Vs. St. Pauls Senior Secondary School (2011) 13 SCC 760], Supreme Court held that the unaided private minority schools over which the Government has no administrative control because of their autonomy under Article 30 (1) of the Constitution of India are not State within the meaning of Article 12 of the Constitution of India. As the right to equality under Article 14 of the Constitution is available against the State, it cannot be claimed against unaided private minority private schools.
   
   The Full Bench of the Allahabad High Court in the case of [Roychan Abraham Vs State of U. P, AIR 2019 All 96], after taking into consideration various decisions of Supreme Court, held as under:
   38. Even if it be assumed that an educational institution is imparting public duty, the act complained of must have direct nexus with the discharge of public duty. It is undisputedly a public law action which confers a right upon the aggrieved to invoke extraordinary writ jurisdiction under 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 petition under Article 226.
   
   Wherever Courts have intervened in exercise of jurisdiction under Article 226 , either the service conditions were 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.

The teacher of a school affiliated to CBSE is neither a public servant working under the Union of India or State nor an employee employed by a body which is a State within Article 12 of the Constitution of India. The teacher is also not a 'workman' as defined in the Industrial Disputes Act, 1947 who alone can invoke the machinery under the said Act challenging termination of his service.

The contract of personal service cannot be enforced in other circumstances even against an authority discharging public function under Article 226 of the Constitution of India. The very issue is concluded by [Sophiamma Vs Council for the Indian School & Anr., [2008(2) KLT 589] and [Toji Joseph & Anr. Vs. State of Kerala & Ors, [ILR 2009 (3) Ker. 54]. The disciplinary actions right from the order of suspension to the order of termination from service challenged under Article 226 of the Constitution of India are beyond judicial review.

The terms and conditions mentioned in the Affiliation Byelaws may be incorporated in the contract to be entered into between the school and the employee concerned. It does not say that the terms and conditions have any legal force, until and unless they are embodied in an agreement. To put it in other words, the terms and conditions of service mentioned in the Chapter VII of the Affiliation Byelaws have no force of law.

They become terms and conditions of service only by virtue of their being incorporated in the contract. Without the contract they have no vitality and can confer no legal rights. The terms and conditions mentioned in the Affiliation Byelaws have no efficacy, unless they are incorporated in a contract.

In the absence of any statutory provisions governing the services of the employees of the school, the service was purely contractual. Merely because the State Government has the regulatory power, the same, by itself, would not confer any such status upon the institution (school) nor put any such obligations upon it which may be enforced through issue of a Writ under Article 226 of the Constitution of India.

Conclusion

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 64 public or a section of it and the authority to do so must be accepted by the public.
    
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 Article 226 for a prerogative writ. 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.
    
3. 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 fall within the domain of a public function or public duty be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, however, 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.
    
4. Even if it be perceived that imparting education by private unaided the 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 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 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.
    

Written By: Damini Singh Chauhan - B. A LL. B [Law School, University of Jammu], LL. M [O. P. Jindal Global University.
E-mail: [email protected]

Also read:

• Rights And Remedies Of Private School Teachers