Private unaided education institution amenable to Article 226: Calcutta High Court

A private unaided education institution is amenable to the writ jurisdiction under Article 226 of the Constitution, the Calcutta High Court ruled on Tuesday, holding that a school operated by the Army Welfare Education Society comes within the meaning of State under Article 12 (Bineeta Patnaik Padhi v. Union of India & Ors.). .Single-judge Justice Shekhar B Saraf held that the school, even if unaided, discharges a public duty cast upon it by the Right to Education (RTE) Act and West Bengal Right to Education (WBRTE) Rules."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," the Court observed..The Court, therefore, held that the school operated by the Army Welfare Education Society comes within the meaning of State under Article 12. However, the Court clarified 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, satisfy that such action of the authority concerned which is under challenge, forms a part of the public law as opposed to private law. The order arose after a plea regarding maintainability was raised against a petition filed by Bineeta Patnaik Padhi, an educationist, challenging her termination from the post of Principal of Army Public School at Panagarh as extended probationer..She approached the Court contending that her termination was both a violation of fundamental rights as well as statutory rights.The school was admittedly operated by the Army Welfare Education Society (AWES)..Advocate Sonal Sinha, appearing for Padhi, submitted that schools under AWES had to comply with the provisions of RTE Act and WBRTE Rules and Affiliation bye-laws of the Central Bureau of Secondary Education.She submitted that Padhi's service was regulated under the RTE statute and was not merely a private contract of employment between the school and petitioner..Additional Solicitor General YJ Dastoor, representing the Central government, submitted that in this case there was neither violation of fundamental nor statutory rights. Dastoor contended that the schools under AWES were not recipients of any financial contribution from either Centre or State government; the society received funds from various units of the army.In view of this, Dastoor argued that the school could not be considered a 'State' under Article 12 of the Constitution of India. He added that the rules framed by the AWES cannot be classified as statutory‘ in nature.It was, therefore, his argument that the jurisdiction under Article 226 could only be exercised by a constitutional court only if public law was involved. .The second limb of argument was that in absence of statutory requirement, if contract of employment cannot ordinarily be enforced against an employer, the appropriate remedy is not to file a writ application. Instead, the affected party has to sue for damages in a civil court of appropriate jurisdiction, he said. .The Court observed that the legislative intent of the RTE Act was to ensure that teachers are not left in a lurch and their grievances in school disputes are addressed satisfactorily.Referring to specific grievance redressal mechanisms provided under Section 23 and 24 of the RTE Act as well as Rule 17 of the WBRTE, the Court concluded that these statutory provisions indeed regulated the contract of service of Padhi making this a fit case for judicial review.Further, since the West Bengal Administrative (Adjudication of School Disputes) Commission Act was not yet notified, the Court concluded that the only efficacious remedy available to Padhi to redress her grievance was to file a writ petition..On the aspect of whether the school would be State, the Court placed reliance on the Supreme Court decision in Marwari Balika Vidyalaya v. Asha Srivastava [(2020) 14 SCC 449].In that case, the Supreme Court was seized of a case in which an Assistant Teacher, working for gain in a private unaided educational institution, was terminated from such service by a stigmatic order and without either procuring the approval of pertinent authorities or holding a disciplinary enquiry.The Court in that case held that a writ application is maintainable in such a matter even against private unaided educational institutions.In light of the law laid down in Asha Srivastava the issue of a private unaided educational institute being amenable to the writ jurisdiction of this Court is no longer res integra, the Court ruled. "The law as laid down in Asha Srivastava now makes it binding upon all High Courts to give effect to it, in terms of Article 141 of the Constitution of India. Additionally, the Full Bench of the Allahabad High Court in Roychan Abraham, upon a reference made by a learned Single Judge, had also relied on Ramesh Ahluwalia to reach the conclusion that private institutions imparting education to students were discharging a public duty and accordingly, were amenable to the writ jurisdiction of the Court under Article 226 of the Constitution," the order said. .The Court noted that since the school, even if unaided, had come to discharge a public duty which was cast upon it by the Right to Education Act with effect from April 2010, it would be subject to Article 226 jurisdiction. The Court, therefore, rejected the preliminary objection raised on the grounds of maintainability of the writ application."In conclusion, the Respondent authorities are granted a period of four weeks to file their affidavits-in-opposition from date of this judgment. Affidavits-in-reply, if desired to be submitted by the writ petitioner, be submitted within a period of two weeks thereafter," it was ordered. .[Read Order]