[Private Unaided Schools] Service cases arising from contracts sans statutory force cannot be subject to Article 226 review: Supreme Court

Only those decisions having a public element can be reviewed by High Courts in exercise of its writ jurisdiction under Article 226 of the Constitution, the Supreme Court recently held [St. Mary’s Education Society v Rajendra Prasad Bhargava]..Hence, decisions of educational institutions taken under the service contracts having no statutory force, cannot be challenged under Article 226, the Court said.A division bench of Justices Aniruddha Bose and JB Pardiwala, therefore, upheld a decision of the division bench of Madhya Pradesh High Court which had held that writ filed by an employee of a private educational institution challenging his termination from service was not maintainable in law..In the 69-page judgment authored by Justice Pardiwala, the Court held that even if a body performing public duty is amenable to the writ jurisdiction, all its decisions are not subject to judicial review.“Only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction. If the action challenged does not have the public element, a writ of mandamus cannot be issued as the action could be said to be essentially of a private character,” the Bench stated..What the Court held.The Court arrived at the following conclusions:- 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.- 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 public or a section of it and the authority to do so must be accepted by the public;- 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. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226;- It must be consequently held that 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 perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a "public function" or "public duty" be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, 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.- Even if it be perceived that imparting education by private unaided 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.- In any case, the terms of employment of contract between a school and nonteaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education. This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of nonteaching 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..Background and judgment.By way of background, the respondent was served a show cause notice cum suspension in September 2014 by the appellant-private unaided educational institution for various alleged misconduct in service.After a departmental enquiry, his service came to be terminated in May 2015.An appeal against this termination was filed before the Disciplinary Committee and that was dismissed.Aggrieved, the petitioner approached the High Court which set aside the order of the disciplinary committee was set aside.The school challenged the maintainability of the writ petition before the single judge who did not intervene. However, the division bench reserved the judgment and held that the writ filed by the petitioner against his termination was maintainable..The issue before the Supreme Court was to decide whether a service dispute involving a private educational institution and its employee could be adjudicated in writ jurisdiction..The petitioner laid emphasis on the fact that at the time of his appointment, the school was affiliated to the Madhya Pradesh State Board and later, it came to be affiliated to the CBSE.Therefore, it was argued that the school fell within the ambit of “state” under Article 12 of the Constitution, and that it could be said to have been performing public duty.In response to this, the Court clarified that the CBSE was only a society registered under the Societies Registration Act, and the school was not a creature of the statute and, hence, not a statutory body..The top court further found that while a body may be discharging a 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.“An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a "public function" or "public duty" be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, 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”, the Court held.In other words, the court said, the action challenged had no public element and a writ of mandamus could not be issued as the action was essentially of a private character..The bench noted that even on assuming that an educational institution was imparting a public duty, the act complained of must have a direct nexus with the discharge of public duty."Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226."It was also highlighted that wherever courts had intervened under writ jurisdiction, either the service conditions were regulated by the statutory provisions, the employer had the status of “state” under Article 12, or it was found that the action complained of had a public law element..Before parting with the judgment, the Court also clarified that it shall be open to the petitioner to take up the issue with the CBSE, the State or through any other legal remedy available to him..[Read judgment]

[Private Unaided Schools] Service cases arising from contracts sans statutory force cannot be subject to Article 226 review: Supreme Court

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