1

AFR

RESERVED

Case :- WRIT - A No. - 63708 of 2014

Petitioner :- Roychan Abraham

Respondent :- State Of U.P. And 3 Ors

Counsel for Petitioner :- Ashish Kaushik,Ravi Chandra Srivastava

Counsel for Respondent :- C.S.C.,Pratik J. Nagar

Hon'ble Govind Mathur, CJ.

Hon'ble Suneet Kumar,J.

Hon'ble Dr. Y.K. Srivastava,J.

( Per Suneet Kumar,J.)

1.The matter came to be referred to the Larger Bench by the learned

Single Judge on being confronted with the judgment rendered by the

Supreme Court in Ramesh Ahluwalia vs. State of Punjab and others

1

(Ramesh Ahluwalia case), wherein, the Court held that a private

educational body performing public duty or discharging public function

would be amenable to the jurisdiction of the High Court under Article 226

of the Constitution of India, consequently, in the opinion of the referring

Court, the Full Bench judgment of this Court in M.K. Gandhi and others

v. Director of Education (Secondary) U.P. and others

2

(M.K. Gandhi

case) and Division Bench decision rendered in Anjani Kumar

Srivastava Vs State of U.P. and others

3

(Anjani Kumar Srivastava

case) needs to be revisited. Relevant portion of the referring order reads

thus:

“In my opinion, since the judgment of Ramesh Ahluwalia (supra)

clearly stipulates that even a purely private body where the State

has no control over its internal affairs would be amenable to the

jurisdiction of the High Court under Article 226 of the Constitution

if it discharges a public function or public duty, the judgment of the

Full Bench of this Court in M.K. Gandhi as well as the Division

Bench judgment in Anjani Kumar Srivastava needs to be revisited.

1. 2012 (12) SCC 331

2. 2006(62) ALR 27

3. 2017 (7) ADJ 112 (DB)

2

It is, therefore, directed that the records of this case be placed

before the Hon'ble Chief Justice for referring the matter to the

Larger Bench in the light of the judgment of the Supreme Court in

the case of Ramesh Ahluwalia.”

2.We have carefully gone through the pleadings of the writ petition

with the assistance of learned counsel for the parties and the referring

order. In our opinion the following questions require to be answered:

(i) whether private institutions imparting education perform public

duty, a State function, making them amenable to judicial

review under Article 226 of the Constitution of India;

(ii) whether the Full Bench decision rendered in M.K. Gandhi and

Division Bench judgment in Anjani Kumar Srivastava

requires to be revisited in view of the Supreme Court decision

rendered in Ramesh Ahluwalia.

Facts:

(I) Saint Francis School, a Christian Minority Institution founded and

run by Shamli Franciscan Education Society, a religious and charitable

organization, registered under the Societies Registration Act, 1860, is

affiliated to the Council for the Indian School Certificate Examinations,

New Delhi.

(II) Petitioner, an assistant teacher of junior section of the school, was

placed under suspension, thereafter, his services came to be terminated on

07 March 2014 with immediate effect. The writ petition was filed

assailing the order of termination being arbitrary and in violation of the

service conditions of the institution.

(III) A preliminary objection was raised that the writ petition is not

maintainable before the High Court under Article 226 of the Constitution

against private educational institution in view of the Full Bench decision

rendered in M.K. Gandhi. The Full Bench, in that case, held that Delhi

Public School was not the 'State' within the meaning of Article 12 of the

Constitution, but the affiliating body i.e. the Central Board of Secondary

3

Education (CBSE) is the 'State' within the meaning of the Article. The

Full Bench also held that the bylaws framed by the CBSE Board for

affiliation shall be deemed to have been adopted by a school in case

service conditions have not been framed by the institution and the CBSE

Board would be liable to take action under its bylaws to disaffiliate the

school in the event of breach.

(IV) The judgment of the Full Bench of this Court was carried in

appeal

4

, the Supreme Court while disposing of the appeal vide judgment

dated 14 August 2007 observed as follows:

“'That all the respondents were teachers in DPS School,

Ghaziabad. Their services were terminated. Therefore, they

approach the High Court of Allahabad for setting aside the

termination order. The learned Single Judge referred the matter to

a larger Bench on the question as to whether the writ petition is

maintainable against the private school or not, as there was

conflict of opinion of that High Court. Subsequently, the matter was

referred to the larger Bench and the larger Bench after hearing the

parties, held that no writ will lie against the private school as it is

not a 'State' within the meaning of Article 12 of the Constitution of

India. Having held that the writ petition is not maintainable

against the private body, still, they directed the CBSE to take

action, as mentioned above. With great respect to the Full Bench of

the High Court, we fail to understand the direction given by the

Allahabad High Court. In our opinion, the direction given by the

Allahabad High Court to the CBSE to totally misconceived and

uncalled for. When the Allahabad High Court has already held that

the DPS School is within the meaning of Article 12 of the

Constitution of India and the writ petition is not maintainable,

there was no necessity for giving a direction to the CBSE which

virtually amounts to granting a declaration in favour of those

teachers whose services have been terminated. We fail to

appreciate the view taken by the Allahabad High Court by

unnecessarily complicating the issue by involving the CBSE for a

private dispute between the teachers and the DPS. The Allahabad

High Court should have stop short of holding that the said DPS is

a private body and the writ is not maintainable. Hence, we are of

the view that no writ is maintainable against a private school as it

4. Civil Appeal No. 339 of 2007

4

is not a 'State' within the meaning of Article 12 of the

Constitution of India and no direction could have been given by

the High Court to the CBSE for interfering with the functioning

of the teachers. The proper remedy for the teachers was to file a

civil suit for damages, if there was any. Subsequently, we allow

this appeal and set aside the order passed by the Allahabad High

Court to the extant of giving a direction to the Board.....”

(V) The issue of maintainability of such a writ petition has also been

considered in Ramesh Ahluwalia. In that case, an order removing a

administrative officer of a school affiliated with CBSE was challenged

before the High Court which dismissed the writ petition on the ground

that it was not maintainable under Article 226 of the Constitution. The

Supreme Court adverted to the earlier decision in Shri Anadi Mukta

Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav

Sampark Trust v. V.R. Rudani

5

(Anadi Mukta case), holding that the

expression “any person or authority” used in Article 226 of the

Constitution is not only to be confined to statutory authorities and

instrumentalities of the State and would cover any other person or body

performing public duty. The Supreme Court also relied upon the decisions

in Unni Krishnan, J.P. and others v. State of Andhra Pradesh and

others

6

(Unni Krishnan case) and Zee Telefilms Ltd. and another v.

Union of India and others

7

(Zee Telefilms case).

3.In the aforesaid backdrop, the learned Single Judge was of the

opinion that M.K. Gandhi and Anjani Kumar Srivastava requires

reconsideration.

Article 12 of the Constitution.

4.The party before it seeks to invoke Part-III rights against an

authority, it will have to satisfy that the authority is 'State' within the

meaning of Article 12 of the Constitution, failing which, Part-III rights

cannot be invoked against the said authority. Thus, the importance of the

5. (1989) 2 SCC 691

6. 1993 SCC (1) 645

7. (2005) 4 SCC 649

5

concept and understanding of what is 'State' within the meaning of Article

12 of the Constitution.

5.Article 12 of the Constitution reads thus:

“12. Definition-In this part, unless the context otherwise requires,

the State includes: Government and Parliament of India.

Government and the Legislature of each of the States. All local or

other authorities within the territory of India or under the control

of the Government of India”.

6.A perusal of the above Article shows that the definition of 'State' in

the said Article includes the Government of India, Parliament of India,

Government of the State, Legislatures of the States, local authorities as

also 'other authorities'.

7.The importance of 'State' as contemplated under Article 12, is

confined to the restrictions placed in Part-III of the Constitution upon the

'State' as against rights conferred by the said Part. Part III deals with the

fundamental rights. The Article 13 prohibits the 'State' in taking away or

abridging by law any fundamental right and any such law would be

void.

8.Part-IV 'Directive Principle of State Policy' as envisaged under the

Constitution, 'State' has been ascribed the same meaning as for the

purposes of Part III (Article 36 of the Constitution of India). Thus, seen

'State' as contemplated under Article 12 of the Constitution, has

significant role so far as rights conferred by Part III are concerned. The

remedy for enforcement of Part-III rights itself has been made a

fundamental right under Article 32 conferring jurisdiction on the Supreme

Court. The jurisdiction of the Supreme Court under Article 32 could be

invoked only in respect of rights conferred by Part-III in relation to 'State'

actions. To invoke the constitutional remedy, the infringement

complained must essentially be against 'State'. Thus, the Supreme Court

would decline relief and petition under Article 32 upon finding that the

infringing authority is not a 'State', in that event writ petition under Article

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32 would not be maintainable.

9.The scope and ambit of Article 12 came up for consideration before

a seven Judge Bench in Smt. Ujjam Bai vs State Of Uttar Pradesh

8

.

The objection was that the authority under the provisions of U.P. Sales

Tax Act did not include judicial authorities under Article 12 of the

Constitution. It is in this perspective the question of interpretation of

Article 12 arose. The Court held that the expression “other authority” in

Article 12 could not be read ejusdem generis with Government,

Parliament of India, Legislature of State and local authorities as there was

no common genus. In other words the definition is inclusive and there

might be other instrumentalities of State action which might be

comprehended within the expression 'State'. The Court held as follows:

“152. In the first place, it has to be pointed out that the definition is

only inclusive, which itself is apt to indicate that besides the

Government and the Legislature there might be other

instrumentalities of State action which might be comprehended

within the expression “State”. That this expression 'includes' is

used in this sense and not in that in which it is very occasionally

used as meaning 'means' and 'includes' could be gathered not

merely from other provisions of Part-III but also from Art. 12

itself...... There is no characterization of the nature of the

“authority” in this residuary clause and consequently it must

include every type of authority set up under a Statute for the

purpose of administering laws enacted by the Parliament or by the

State including those vested with the duty to make decisions in

order to implement those laws.”

10.Thus, quasi judicial statutory authorities acting under statutes was

held to be 'State'.

11.In Rajasthan State Electricity Board vs Mohan Lal

9

Constitution

Bench held that the expression 'other authority' is wide enough to include

within it every authority created by a statute, on which powers are

conferred to carry out governmental or quasi-governmental functions

8. 1962 AIR 1621

9. 1967 AIR 1857:1967 SCR (3) 377

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and functioning within the territory of India or under the control of the

Government of India, a departure from the restricted view taken earlier

that statutory bodies like universities, were not 'other authorities' for the

purpose of Article 12.

12.Within a decade, thereafter, the concept of 'State' had undergone

drastic changes; with the State entering commercial space, acting through

corporations, thus, making it an agency or instrumentality of the State.

The public corporation, therefore, became a third arm of the Government

which were often of a specialised and highly technical character. The

employees of public corporation are not civil servants. In so far as public

corporations fulfil public tasks on behalf of government they are public

authorities and were subject to control by the Government. The public

corporation being a creation of the State is subject to the constitutional

limitation as the 'State' itself. In Sukhdev Singh and others v.

Bhagatram Sardar Singh Raghuvanshi and another

10

, the expression

'other authorities' was consequently expanded holding bodies like Oil and

Natural Gas Commission, Industrial Finance Corporation and Life

Insurance Corporation, created by statutes and having regard to the nature

of their activities come within Article 12. Even though in reality they were

constituted for commercial purposes. It was due to change in the socio-

economic policies of the Government that Supreme Court considered it

necessary by judicial interpretation to give a wider meaning to the term

'other authorities' which came about primarily with a view to prevent the

Government from by-passing its constitutional obligations by creating

companies, corporations etc. to perform its duties.

13.Thereafter, a seven Judge Bench of the Supreme Court in Pradeep

Kumar Biswas v. Indian Institute of Chemical Biology

11

, after

adverting to various authorities

12

laid down guidelines for a body to be

'State' under Article 12.

10. 1975 (3) SCR 619

11. (2002) 5 SCC 111

12. Ramana Dayaram Shetty v. International Airport Authority of India and others, (1979) 3 SCC 489,

Ajay Hasia (supra), Sukhdev Singh (supra), Sabhajit Tewary vs Union Of India and others, 1975 AIR

1329

8

“(1) Principles laid down in Ajay Hasia are not a rigid set of

principles so that if a body falls within any one of them it must ex

hypothesi, be considered to be a State within the meaning of Article

12.

(2) The Question in each case will have to be considered on

the bases of facts available as to whether in the light of the

cumulative facts as established, the body is financially,

functionally, administratively dominated, by or under the

control of the Government.

(3) Such control must be particular to the body in question

and must be pervasive.”

14.A body which is financially, functionally, administratively

dominated, by or under the control of the Government on established facts

alone would be 'State' under Article 12.

Article 226 of the Constitution:

15.The power of the High Court to issue writ begins with a non-

obstante clause. The power and jurisdiction of the High Court is much

wider. The jurisdiction extends to enforcement against infringement of

Part III rights, against 'State' and also against 'any person or authority' and

'for any other purpose'. The limitation of action against the 'State'

alone is not there under Article 226 of the Constitution. Thus, there is

distinction between the powers to issue writs as between the Supreme

Court and the High Court. The power to issue writ conferred upon the

Supreme Court by Article 32 is for enforcement of Part III rights, but the

power to issue writs as conferred under Article 226 upon the High Court

is for enforcement of fundamental rights as against 'State' and non

fundamental rights as against any 'other person or authority' or 'for any

other purpose'. Thus, is the distinction between writ jurisdiction of the

Supreme Court and the High Court, that even where the Supreme Court

declines a Article 32 writ petition on the ground that the offending

party/authority is not 'State' yet the High Court can interfere and issue writ

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under Article 226 in appropriate cases.

16.The term 'authority' used in Article 226, must receive a liberal

meaning unlike the term 'authority' in Article 12. The words "any person

or authority” used in Article 226 are, therefore, not to be confined only to

statutory authorities and instrumentalities of the State. They may cover

any other person or body performing public duty. The form of the body

concerned is not very much relevant. What is relevant is the nature of the

duty imposed on the body. The duty must be judged in the light of

positive obligation owed by the 'person or authority' to the affected party.

No matter by what means the duty is imposed, if a positive obligation

exists mandamus cannot be denied.

17.The Supreme Court in Anadi Mukta upon examining the scope

and ambit of the expression 'authority' used in Article 12 and in Article

226 of the Constitution was of the opinion that the expression “any person

or authority” used in Article 226 are, therefore, not to be confined only to

statutory authorities and instrumentalities of the State. They may cover

any other person or body performing public duty. The form of the body

concerned is not very much relevant. What is relevant and determinative

element is the nature of the duty imposed on the body. This is a striking

departure from the English law.

“The term “authority” used in Article 226, in the context, must

receive a liberal meaning unlike the term in Article 12. Article 12 is

relevant only for the purpose of enforcement of fundamental rights

under Article 32. Article 226 confers power on the High Courts to

issue writs for enforcement of the fundamental rights as well as

non-fundamental rights. The words “any person or authority” used

inArticle 226 are, therefore, not to be confined only to statutory

authorities and instrumentalities of the State. They may cover any

other person or body performing public duty. The form of the body

concerned is not very much relevant. What is relevant is the nature

of the duty imposed on the body. The duty must be judged in the

light of positive obligation owed by the person or authority to the

affected party. No matter by what means the duty is imposed, if a

positive obligation exists mandamus cannot be denied.” (Para No.

10

82 at page 2208)

18.The words 'any other purpose' makes the jurisdiction of the High

Court to issue writ more extensive than that of Supreme Court. 'Any other

purpose' means a purpose for which any of the writs could, according to

well established principles issue and not otherwise. In short the words

means 'enforcement of legal right' and the performance of any legal duty.

(Refer: State of Orissa vs. Madangopal Rungta,

13

; Fertilizer Corporation

Kamgar Union vs. Union of India

14

; Calcutta Gas Corporation vs. State of

West Bengal

15

)

19.Though the jurisdiction of the High Court is not confined to issuing

prerogative writs, there is consensus of opinion, the Court will not permit

this extraordinary jurisdiction to be converted into a suit. A declaration

that a contract of service with the employer still subsisted will not be

made in the sphere of an ordinary relationship of master and servant or

contract of service, not protected by any statutory or constitutional

provisions, because of the principle that Courts do not grant specific

performance of contract of service. (Refer: Bool Chand vs. Kurukshetra

University

16

; Praga Tools Corporation vs. C.A. Immanuel

17

; S.R. Tiwari

vs. District Board, Agra

18

)

20.Judicial Review forms the basic structure of the Constitution. It is

inalienable. Public law remedy by way of judicial review is available

under Articles 32 and 226 of the Constitution. They do not operate in

different fields. Article 226 operates only on a broader horizon to cover

any other person or body performing public duty and not confined only to

statutory authorities and instrumentalities of the State.

Public duty/public function:

21.The concept of public law function is yet to be crystallized.

Concededly, however, the power of judicial review can be exercised by

13. AIR 1952 SC 12

14. AIR 1981 SC 344

15. AIR 1962 SC 1044

16. AIR 1968 SC 292 (296)

17. AIR 1969 SC 1306

18. AIR 1964 SC 1680

11

the Supreme Court under Article 32 and by the High Courts under Article

226 of the Constitution of India only in a case where the dispute involves

a public law element as contradistinguished from a private law dispute.

(See: Dwarka Prasad Agarwal (D) by LRs. And Another Vs. B.D. Agarwal

and Others

19

).

22.General view, however, is that whenever a State or an

instrumentality of a State is involved, it will be regarded as an issue within

the meaning of public law but where individuals are at loggerheads, the

remedy therefor has to be resorted in private law field. Situation, however,

changes with the advancement of the State function particularly when it

enters in the fields of commerce, industry and business as a result thereof

either private bodies takeup public functions and duties or they are

allowed to do so which primarily is a State function. The distinction has

narrowed down but again concededly such a distinction still exists.

Drawing inspiration from the decisions of the Supreme Court as also other

courts, it may be safely inferred that when essential governmental

functions are placed or allowed to be performed by a private body they

must be held to have undertaken a public duty or public function.

23.When the 'State' merely authorizes a given 'private' action that

action cannot automatically become one taken under 'state authority'.

Private action would not be a public function. Which authorizations

would have that Constitution triggering effect will necessarily turn on the

character of the decision-making responsibility placed in private hands.

However described, there must exist a category of responsibilities

regarded at any given time as so 'public' or 'governmental' that their

discharge by private persons, pursuant to state authorization even though

not necessarily in accord with state direction, is subject to the

constitutional norms that would apply to pubic officials discharging those

same responsibilities.

24.Governmental functions are multifacial. There cannot be a single

test for defining public functions. Such functions are performed by a

19. (2003) 6 SCC 230 at page 242

12

variety of means. Furthermore, even when public duties are expressly

conferred by statute, the powers and duties do not thereunder limit the

ambit of a statute, as there are instances when the conferment of powers

involves the imposition of duty to exercise it, or to perform some other

incidental act, such as obedience to the principles of natural justice. Many

public duties are implied by the courts rather than commanded by the

legislature; some can even be said to be assumed voluntarily. There are,

however, public duties which arise from sources other than a statute.

25.In Assembrook Exports Ltd. & another. v. Export Credit

Guarantee Corpn. of India Ltd. and others

20

, it has been held that

public law remedy would be available when determination of a dispute

involving public law character is necessary. The said decision has been

affirmed by the Supreme Court in ABL International Ltd. & Anr. Vs.

Export Credit Guarantee Corporation of India Limited and others

21

.

[See: Tata Cellular vs. Union of India

22

and State of U.P. and Another vs.

Johri Mal

23

.

26.In the case of General Manager, Kisan Sahkari Chini Mills Ltd.

v. Satrughan Nishad and others

24

, in a writ application filed by

terminated workman of Sugarmills Co-operative Society, Supreme Court

again considered the maintainability of the writ petition under Article 226

and held as under:

“9. Learned counsel appearing …..............................

…................................................................................

that it is only in the circumstances when the authority or the person

performs a public function or discharges a public duty that Article

226 of the Constitution can be invoked.”

27.In Binny Ltd. and anr. v. V. Sadasivan and other

25

, the Supreme

Court observed that private companies and corporation could come within

20. AIR 1998 Cal 1

21. [JT 2003 (10) SC 300]

22. AIR 1996 SC 11

23. [(2004) 4 SCC 714]

24. (2003) IIILLJ1108SC

25. (2005) IIILLJ738SC

13

the sweep of judicial review provided are discharging public functions,

but it is difficult to draw a line between public functions and private

functions. The Court observed as follows:

“.............It is difficult to draw a line between public functions and

private functions when they are being discharged by a purely

private authority. A body is performing a 'public function' when it

seeks to achieve some collective benefit for the public or a section

of the public and is accepted by the public or that section of the

public as having authority to do so. Bodies therefore exercise

public functions when they intervene or participate in social or

economic affairs in the public interest.”

28.The Court further cautioned that though a writ could be issued

against a private body or person, specially in view of the

words/expression used in Article 226 of the Constitution. However, the

scope of mandamus is limited to enforcement of public duty. The scope of

mandamus is determined by the nature of the duty to be enforced, rather

than the identity of the authority against whom it is sought. The Court in

Binny Ltd. (supra) observed as follows:

“29. ............If the private body is discharging a public duty

imposed on such body, then public law remedy can be enforced.

The duty cast on the public body may be either statutory or

otherwise and the source of such power is immaterial, but

nevertheless, there must be the public law element in such action.

Sometimes, it is difficult to distinguish between public law and

private law.”

29.The Supreme Court finally in para 32 held that though the private

body need not be a 'State' within the meaning of Article 12, such body

would be amenable to writ jurisdiction of the High Court under Article

226 provided there must be public law element in such action.

“32. Applying these principles, it can very well be said that a writ

of mandamus can be issued against a private body which is not

'State' within the meaning of Article 12 of the Constitution and such

body is amenable to the jurisdiction under Article 226 of the

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Constitution and the High Court under Article 226 of the

Constitution can exercise judicial review of the action challenged

by a party. But there must be a public law element and it cannot be

exercised to enforce purely private contracts entered into between

the parties.”

30.Whether a private company engaged in banking business performs

public function. In other words does banking business as a scheduled bank

involve public law element was considered by the Supreme Court in

Federal Bank Ltd. v. Sagar Thomas and other

26

, the Court held that a

private company carrying on banking business as a scheduled bank,

cannot be termed as an institution or company carrying on any statutory or

public function. A private body or a person may be amenable to writ

jurisdiction only where it may become necessary to compel such body or

association to enforce any statutory obligations or such obligations of

public nature casting positive obligation upon it. The statutory provisions

governing a private bank is merely regulatory. To put it differently a

company in banking business is not required to perform public function

nor essential governmental function is placed upon it.

31.The susceptibility to judicial review an approach solely, based on

source of the public authority's power came to be considered too

restrictive. The claim for judicial review has gradually shifted to “a

decision, action or failure to act in relation to the exercise of a public

function”. Supreme Court in Janet Jeyapaul Versus SRM University

and others

27

(SRM University case), quoted with approval following

extract from the decision of the English court in R. v. Panel on

Takeovers and Mergers, ex parte Datafin Plc and another (Norton

Opax Plc and another intervening

28

):

“In determining whether the decisions of a particular body were

subject to judicial review, the court was not confined to considering

the source of that body’s powers and duties but could also look to

26. (2003) 10 SCC 733

27. (2015) 16 SCC 530

28. (1987) 1 All ER 564

15

their nature. Accordingly, if the duty imposed on a body, whether

expressly or by implication, was a public duty and the body was

exercising public law functions the court had jurisdiction to

entertain an application for judicial review of that body’s

decisions…….”

32.In Andi Mukta, the question before the Supreme Court was as to

whether mandamus can be issued at the instance of an employee (teacher)

against a Trust registered under Bombay Public Trust Act, 1950 which

was running educational institutions. The main legal objection of the Trust

while opposing the writ petition of their employee was that since the Trust

is not statutory body and hence it cannot be subject of writ jurisdiction of

the High Court.

33.The Supreme Court on the question of maintainability of the writ

petition for mandamus as against the management of the college held as

under:

“15. If the rights are purely of a private character no mandamus

can issue. If the management of the college is purely a private

body with no public duty mandamus will not lie. These are two

exceptions to mandamus. But once these are absent and when the

party has no other equally convenient remedy, mandamus cannot

be denied. It has to be appreciated that the appellants trust was

managing the affiliated college to which public money is paid as

government aid. Public money paid as government aid plays a

major role in the control, maintenance and working of educational

institutions. The aided institutions like government institutions

discharge public function by way of imparting education to

students. They are subject to the rules and regulations of the

affiliating University. Their activities are closely supervised by the

University authorities. Employment in such institutions, therefore,

is not devoid of any public character. So are the service conditions

of the academic staff. When the University takes a decision

regarding their pay scales, it will be binding on the management.

The service conditions of the academic staff are, therefore, not

purely of a private character. It has super-added protection by

University decisions creating a legal right-duty relationship

between the staff and the management. When there is existence of

16

this relationship, mandamus cannot be refused to the aggrieved

party.

34.The issue as to whether a private body, though not 'State' within the

meaning of Article 12 of the Constitution, would be amenable to the writ

jurisdiction of the High Court under Article 226 was examined by the

Constitution Bench in Zee Telefilm Ltd. The question that fell for

consideration was whether Board of Control for Cricket in India (in short

“BCCI”) falls within the definition of 'State'. The ratio laid down in Andi

Mukta was approved, but on the facts of the case, Supreme Court, by

majority held that BCCI does not fall within the purview of the term

'State' but clarified that when a private body exercises public function

even if it is not a State, the aggrieved person has a remedy not only under

the ordinary law but also under the Constitution, by way of a writ petition

under Article 226. Para 31, 32 and 33 of Zee Telefilm reads thus:

“31. Be that as it may, it cannot be denied that the Board does

discharge some duties like the selection of an Indian cricket

team, controlling the activities of the players and others involved

in the game of cricket. These activities can be said to be akin to

public duties or State functions and if there is any violation of any

constitutional or statutory obligation or rights of other citizens, the

aggrieved party may not have a relief by way of a petition under

Article 32. But that does not mean that the violator of such right

would go scot-free merely because it or he is not a State. Under the

Indian jurisprudence there is always a just remedy for the violation

of a right of a citizen. Though the remedy under Article 32 is not

available, an aggrieved party can always seek a remedy under the

ordinary course of law or by way of a writ petition under Article

226 of the Constitution, which is much wider than Article 32.

33. Thus, it is clear that when a private body exercises its public

functions even if it is not a State, the aggrieved person has a

remedy not only under the ordinary law but also under the

Constitution, by way of a writ petition under Article 226……”

35.The ratio decidendi of Zee Telefilms is clear that: (i) BCCI a

private body is not 'State' within the meaning of Article 12; (ii) BCCI

17

discharges public functions; (iii) an aggrieved party can seek public law

remedy against the BCCI under Article 226 of the Constitution of India.

36.In G. Bassi Reddy Versus International Crops Research

Institute and other

29

, the Supreme Court observed that though it is not

easy to define what a public function or public duty is, it can reasonably

be said that such functions are similar to or closely related to those

performable by the State in its sovereign capacity. The Court accordingly

held that the primary activity of research and training voluntarily

undertaken by the respondent institution therein cannot be said to be a

public duty as the institution does not owes the duty to the Indian public

to provide research and training facilities.

37.In State of U.P. and another vs. Johri Mal

30

, the Supreme Court

held that for a public law remedy enforceable under Article 226, the

action of a person or the authority need to fall in the realm of public law.

The question is required to be determined in each case.

“The legal right of an individual may be founded upon a

contract or a statute or an instrument having the force of law. For a

public law remedy enforceable under Article 226 of the

Constitution, the actions of the authority need to fall in the realm of

public law -be it a legislative act or the State, an executive act of

the State or an instrumentality or a person or authority imbued

with public law element. The question is required to be determined

in each case having regard to the nature of and extent of authority

vested in the State. However, it may not be possible to generalize

the nature of the action which would come either under public law

remedy or private law field nor is it desirable to give exhaustive list

of such actions.”

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 duly. 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

29. 2003 (4) SCC 225

30. 2004 (4) SCC 714

18

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.

39.We accordingly hold that a private body though not 'State', but

performing public duty is amenable to the writ jurisdiction under Article

226 of the Constitution. Whether a writ would lie at the behest of an

aggrieved party against the offending act of the private body performing

public duty would depend upon the facts and the nature of the offending

act complained against.

Educational Institution

40.Whether private educational institutions perform public duty?

41.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.

42.The State neither has the funds and resources to setup educational

institutions and in particular institutions imparting higher education.

Imparting education is not a State monopoly, though it is one of the most

important functions of the Indian State. The right to establish and

administer educational institution is guaranteed under the Constitution to

all citizens under Article 19(1)(g) and 26, and to the minorities

specifically under Article 30.

43. Private educational institutions are a necessity in the present day

19

context. Government is in no position to meet the demand of education at

all levels—from primary education to higher education. Private

educational institutions have a role to play.

"194. The hard reality that emerges is that private educational

institutions are a necessity in the present day context. It is not

possible to do without them because the Governments are in no

position to meet the demand - particularly in the sector of medical

and technical education which call for substantial outlays. While

education is one of the most important functions of the Indian State

it has no monopoly therein. Private educational institutions -

including minority educational institutions - too have a role to

play."

(Observed by Jeevan Reddy, J., in Unni Krishnan at

page 749, para 194)

The para has been quoted with approval in T.M.A. Pai.

44.In Unni Krishnan, the Constitution Bench held that private

educational institutions discharge public duties irrespective of the fact

they receive aid or not. The absence of aid does not detract from the

public nature of the duty. These institutions supplement the effort of the

State in educating the people which is the principal duty cast upon the

State under the constitutional scheme.

“83. The emphasis in this case is as to the nature of duty imposed

on the body. It requires to be observed that the meaning of

authority under Article 226 came to be laid down distinguishing the

same term from Article 12. In spite of it, if the emphasis is on the

nature of duty on the same principle it has to be held that these

educational institutions discharge public duties. Irrespective of the

educational institutions receiving aid it should be held that it is a

public duty. The absence of aid does not detract from the nature of

duty.”

45.A mere recognition from the State or affiliation by the

Board/University does not make the educational institution an

instrumentality of the State. But nevertheless educational institution

discharge public duty in supplementing the effort of the State in imparting

20

education, it is not an independent activity viz. banking and other

commercial activity. If, therefore, what is discharged by the educational

institution, is a public duty then that requires it to act fairly.

46.Unni Krishnan came to be partly overruled by the subsequent

eleven Judge Bench in T.M.A. Pai Foundation and others vs. State of

Karnataka and others

31

(T.M.A. Pai case), however, the ratio decidendi,

insofar educational institution discharging public function and it is the

duty of the State to provide education to children from the age of six to

fourteen years held to be fundamental right was affirmed.

47.The Supreme Court again got an opportunity to examine the issue

as to whether private institution imparting education in higher studies to

students is discharging 'public function' and whether, Deemed University

notified by the Central Government under Section 3 of the University

Grants Commission Act, 1956

32

which, inter alia, provides for effective

discharge of public function, namely, education for the benefit of public

is an authority within the meaning of Article 12 of the Constitution then as

a necessary consequence, it becomes amenable to writ jurisdiction of

High Court under Article 226 of the Constitution. The Court in SRM

University held that the institution engaged in/and imparting higher

studies to students is discharging 'public function' by imparting education.

“This we say for the reasons that firstly, respondent No. 1 is

engaged in imparting education in higher studies to students at

large. Secondly, it is discharging "public function" by way of

imparting education. Thirdly, it is notified as a "Deemed

University" by the Central Government under Section 3 of the UGC

Act. Fourthly, being a “Deemed University”, all the provisions of

the UGC Act are made applicable to respondent No. 1, which inter

alia provides for effective discharge of the public function - namely

education for the benefit of public. Fifthly, once respondent No. 1 is

declared as “Deemed University" whose all functions and activities

are governed by the UGC Act, alike other universities then it is an

"authority" within the meaning of Article 12 of the Constitution.

Lastly, once it is held to be an "authority" as provided in Article 12

31. (2002) 8 SCC 481

32. UGC Act

21

then as a necessary consequence, it becomes amenable to writ

jurisdiction of High Court under Article 226 of the Constitution.”

48.In Miss Raj Soni v. Air officer in charge Administration and

another

33

, a dispute arose regarding retirement age of the teachers.

Though the school was run by a registered society, however, all

recognized schools whether aided or otherwise were governed and

regulated by Delhi Education Act, 1973 and the Delhi Education Rules,

1973. While considering the question of maintainability of writ petition,

Supreme Court held that a private body cannot defy the mandate of a

statute on the pretext that it is not a 'State' under Article 12.

“The recognised private schools in Delhi whether aided or

otherwise are governed by the provisions of the Act and the Rules.

The respondent-management is under a statutory obligation to

uniformly apply the provisions of the Act and the Rules to the

teachers employe`e School. When any authority is required to act

in a particular manner under a statute it has no option but to

follow the statute. The authority cannot defy the statute on the

pretext that it is neither a State nor an 'authority' under Article 12

of the Constitution of India.”

49.In K. Krishnamacharyulu and others v. Sri Venkatesvara Hindu

College of Engineering and another

34

, the teachers/non-teaching staff of

private education institutions filed writ petition seeking parity of pay-

scale on the strength of executive instructions issued by the Government,

whereunder, employees of private college were entitled to pay-scale at par

with the Government employees. The Supreme Court while examining

the question of their locus to file petition under Article 226 of the

Constitution of India observed:

“We are of the view that the State has obligation to provide

facilities and opportunities to the people to avail of the right to

education. The private institutions cater to the needs of the

educational opportunities. The teacher duly appointed to a post in

33. 1990 (2) SCR 412

34. AIR 1998 SC 295

22

the private institution also is entitled to seek enforcement of the

orders issued by the Government. The question is as to which

forum one should approach. The High Court has held that the

remedy is available under the Industrial Disputes Act. When an

element of public interest is created and the institution is catering

to that element, the teacher, the arm of the institution is also

entitled to avail of the remedy provided under Article 226; the

jurisdiction part is very wide. It would be different position, if the

remedy is a private law remedy. So, they cannot be denied the same

benefit, which is available to others. Accordingly, we hold that the

writ petition is maintainable. They are entitled to equal pay so as to

be on par with Government employees under Article 39(d) of the

Constitution.”

50.The eleven Judge Bench in T.M.A. Pai while considering the

relationship between the management and the employees/teachers of

private technical and higher education though being contractual in nature

but, in the case of educational institutions, the Court was of the opinion

that requiring a teacher or a staff to go to civil court for the purposes of

seeking redress is not in the interest of education. Therefore, it would be

appropriate to setup Educational Tribunal by the State Government.

“.............In the case of a private institution the relationship

between the management and the employees is contractual in

nature. A teacher, if the contract so provides, can be proceeded

against, and appropriate disciplinary action can be taken if the

misconduct of the teacher is proved. Considering the nature of the

duties and keeping the principle of natural justice in mind for the

purposes of establishing misconduct and taking action thereon, it is

imperative that a fair domestic enquiry is conducted. It is only on

the basis of the result of the disciplinary enquiry that the

management will be entitled to take appropriate action. We see no

reason why the “.............In the case of a private institution the

relationship between the management and the employees is

contractual in nature. A teacher, if the contract so provides, can be

proceeded against, and appropriate disciplinary action can be

taken if the misconduct of the teacher is proved. Considering the

nature of the duties and keeping the principle of natural justice in

mind for the purposes of establishing misconduct and taking action

23

thereon, it is imperative that a fair domestic enquiry is

condumanagement of a private unaided educational institution

should seek the consent or approval of any governmental authority

before taking any such action. In the ordinary relationship of

master and servant, governed by the terms of a contract of

employment, anyone who is guilty of breach of the terms can be

proceeded against and appropriate relief can be sought. Normally,

the aggrieved party would approach a court of law and seek

redress. In the case of educational institutions, however, we are of

the opinion that requiring a teacher or a member of the staff to

go to a civil court for the purpose of seeking redress is not in the

interest of general education. Disputes between the management

and the staff of educational institutions must be decided speedily,

and without the excessive incurring of costs. It would, therefore,

be appropriate that an Educational Tribunal be set up in each

district in a State, to enable the aggrieved teacher to file an appeal,

unless there already exists such an Educational Tribunal in a State-

the object being that the teacher should not suffer through the

substantial costs that arise because of the location of the Tribunal;

….....The State Government shall determine, in consultation with

the High Court, the judicial forum in which an aggrieved teacher

can file an appeal against the decision of the management

concerning disciplinary action or termination of service.”

51.In compliance a number of States have set up Education Tribunal,

the Government of Uttar Pradesh, however, is yet to comply. We hope and

trust that Education Tribunal is setup in the State at the earliest being in

the interest of general education, teachers and staff.

52.The contention of the learned Senior Counsel appearing for the

respondent institution that minority institution imparting secular education

is not amenable to judicial review under Article 226 of Constitution is

untenable, accordingly rejected. The submission is on misreading of

Pramati Educational & Cultural Trust and others versus Union of

India and others

35

. The minority institutions were before the Supreme

Court assailing the validity of the parliamentary enactment.—The Right

35. (2014) 8 SCC 1

24

of Children to Free and Compulsory Education Act 2009

36

, providing free

and compulsory education to children from the age of six years to

fourteen years to enforce the fundamental right guaranteed under Article

21A. The Court upheld the vires of Act, 2009 but declared Act, 2009 ultra

vires of the Constitution, insofar, it was made applicable to institutions

established and administered by minorities. Paramati (supra) is not an

authority on the question whether educational institution established and

administered by the minorities perform public duty and whether are

amenable to judicial review under Article 226 of the Constitution.

53.Private educational institutions, both aided and unaided, or

established and administered by religious and linguistic minorities, as

well as by non-minorities provide education at three levels, viz., school,

college and professional level. The ultimate goal of a minority institution

imparting general secular education like any other private educational

institution is advancement of learning primarily a State function, therefore

are amenable to judicial review under Article 226 of the Constitution of

India.

54.One of the question in TMA Pai was with regard to the meaning of

'education' and 'educational institutions'. The question and answer to the

question reads thus:

“Q.11 What is the meaning of the expressions "Education" and

"Educational Institutions" in various provisions of the

Constitution? Is the right to establish and administer educational

institutions guaranteed under the Constitution?

A. The expression "education" in the Articles of the

Constitution means and includes education at all levels from

the primary school level upto the post-graduate level. It

includes professional education. The expression "educational

institutions" means institutions that impart education, where

"education" is as understood hereinabove.”

55.Education should not be misunderstood to include

coaching/tuition/play-way establishment. These are private activity and,

36. Act, 2009

25

are not covered by the expression 'education' nor they perform public

duty.

56.Education at every level is fundamental and is a matter of public

importance; the country's future depends upon the same. Education is one

of the most important function of the Indian State and it has no monopoly

therein. The private educational institution aided/unaided, run and

managed by the minority or majority communities rendering education to

children/students from the age of six onwards cater to the obligation of the

State to provide opportunity in education to the people to avail education.

We accordingly hold that all these educational institutions are subject to

judicial review of the High Court under Article 226 of the Constitution of

India.

M.K. Gandhi/Anjani Kumar Srivastava case

57.The petitioners before the Full Bench were teachers in Delhi Public

School (D.P.S. School) duly affiliated with Central Board of Secondary

Education (CBSE). The services of the teachers came to be terminated

without conducting any enquiry or affording any opportunity to the

teachers. On notice to DPS School by the CBSE to show cause, stand was

taken that the services of the petitioners have been dispensed with in

accordance with the terms of their appointment. The Full Bench was

examining the scope and extent of protection available to the teachers

teaching in school affiliated to the CBSE.

58.In this backdrop, the Court formulated the following points for

determination:

“(i) Whether the D.P.S. School is a State within the meaning of

Article 12 of the Constitution.

(ii) Whether the Board is a State within the meaning of Article 12

of the Constitution of India.

(iii) Whether the 'Affiliation bye-laws' have statutory force.

(iv) In case the answer to the second question is in negative then,

whether the affiliation bye-laws are still binding on the

schools affiliated to the Board.

(v) Whether the Committee of Management of the School, while

26

dealing with the service matters of its employees or the

teachers, is performing public duty.

(vi) Whether a writ petition is maintainable against a privately

managed school for violation of the service rules.

(vii) Whether a writ petition is maintainable against the Board for

non-observance of its bye-laws.”

59.Answer to points (iii), (iv), (v), (vi) and (vii) turn on merits arising

from the facts of the case. Insofar, points (i) and (ii), the Court held that

D.P.S. School is not a 'State'; CBSE the affiliating body was held to be a

'State' within the meaning of Article 12 of the Constitution of India.

60.The question as to whether a private institution imparting education

is amenable to judicial review under Article 226 of the Constitution,

though not a 'State' within the meaning of Article 12 of the Constitution,

was not an issue in M.K. Gandhi. The Full Bench decision is confined to

the facts arising in the case and is not an authority on the question that we

are called upon to answer. The Full Bench for the reasons stated in para

36 and 37 declined to entertain writ petition against the private

educational institution.

“36. Is a writ petition maintainable for,

•violation of the bye-laws that do not have statutory force?

•enforcement of a private contract between the school and the

teacher?

We are afraid; our answer has to be in the negative. The Full

Bench of our Court in Aley Ahmad Abidi v. District Inspector of

Schools

37

, (The Aley Abidi Case) has held that:

“The Committee of Management of an Intermediate College

is not a statutory body. Nevertheless, a writ petition filed

against it is maintainable if such petition is for enforcement

of performance of any legal obligations or duties imposed on

such committee by a statute.”

37. The committee of management of the D.P.S. School is

recognised by the Board but it is neither a statutory body nor a

State within the meaning of Article 12. The legal obligation or duty

on the D.P.S. School is neither imposed by any statute nor by any

37. AIR 1977 All 539

27

statutory provision : it has been imposed by the affiliation bye-laws

and agreement which is a contract between the parties and non-

statutory. In view of this the writ petition is not maintainable

against the D.P.S. School for violation of the affiliation bye-laws.”

61.In Anjani Kumar Srivastava, the Division Bench though noticing

Ramesh Ahluwalia declined to interfere for the reason that private

contract of service between the master and servant was not enforceable in

writ jurisdiction. The case is confined to the facts obtaining therein.

62.In Ms. Geeta Pushp v. Union of India and others

38

, the petitioner

therein was a teacher in Army Public School managed by the Army

Welfare Education Society, registered under the Societies Registration

Act, 1860. The question for determination in the facts of the case was

whether a writ petition by an employee or teacher for enforcement of

service contract against the private institution was maintainable. It was

held that while retiring a teacher there was no public law element in the

action of the private body. The Court, therefore, declined to enforce the

service contract in writ jurisdiction. The cases herein above are not

reflective of the position of law that private educational institution render

public duty and are amenable to judicial review under Article 226 of the

Constitution of India. The Court in the given facts obtaining therein

declined the relief to the petitioner as in the opinion of the Court there was

no public law element in the offending act complained against the

educational institution.

Conclusion:

63.We accordingly proceed to answer the reference in the following

terms:

64.Question (i): Private Institutions imparting education to students

from the age of six years onwards, including higher education, perform

public duty primarily a State function, therefore are amenable to judicial

review of the High Court under Article 226 of the Constitution of India.

65.Question (ii): The broad principle of law which has been

38. 2018(2) ALJ 292

28

formulated in the judgement of the Full Bench in M.K. Gandhi and

Division Bench in Anjani Kr. Srivastava is confined to the facts

obtaining therein and is not an authority on the proposition of law that

private educational institutions do not render public function and,

therefore, are not amenable to judicial review of the High Court. The

judgements do not require to be revisited.

66.The reference to the Full Bench, shall accordingly stand answered.

The writ petition shall now be placed before the regular Bench according

to roster for disposal in light of the questions so answered.

Order Date:- 26.02.2019

K.K. Maurya/S.Prakash

(Govind Mathur,CJ.)

(Suneet Kumar,J.)

(Dr. Y.K. Srivastava,J.)