Fundamental Right to Education and the counsel for the vs Building byelaws were not followed by most of the

1. Heard the learned counsel for the petitioners and the learned Standing Counsel who appears on behalf of the State-respondent no.2. Shri Surya Prakash, Advocate has filed his Memo of Appearance on behalf of the Central Government which is taken on record.

2. We have gone through the array of the respondents, the Respondent nos.3 to 9 are the Seventh- Day Adventist Senior Secondary School through its Principal and its Manager and etc. Secretary and Others i.e. all Officers who are in some way In-charge of running Seventh-Day Adventist, Senior Secondary School.

3. This petition has been filed by the petitioner for the following main prayers:- "i) A writ, order or direction in the nature of Mandamus commanding the Opposite parties to pay the due salaries, funds, gratuity, PF, other Bonus and Gifts incentives, Worker allowances, head of family allowances and other allowances etc. to the parents of petitioners till the date of termination order since 01.09.2021 to 10.12.2024 of 39 months and the petitioners be allowed to join the studies in the school. ii) The 10% of salary deduction forcibly from the petitioner's parents (Father and Mother) from 01.06.2004 to till date that money also be paid with interest to the petitioner's parents within three weeks or so. iii) Any order or direction that this Hon'ble Court may deem just and proper in the facts and circumstances of the case. iv) Allow the writ petition exemplary costs."

4. Learned Standing Counsel has raised a preliminary objection regarding the maintainability of the petition.

5. It is the case of the petitioners' that the petitioners' are students of Seventh-Day Adventist, Senior Secondary School and they have a right to free education. The father of the petitioners' was appointed as Cashier in the same school in the year 2005 and regularized in 2007. The mother was primary teacher in the said School since 2004. She was suspended in 2019 and later on, again suspended on 01.09.2021 and she was later on transferred to a remote place. The petitioners parents have again been transferred this time to West Bengal in the mid-semester of an academic year. The petitioners studies have been affected in this manner. The parents did not go to join in West Bengal and sent a request letter to the Employer to consider their grievance but the Employers have rejected the request. The parents of the petitioners have been harassed by them. 10% of their salary was also deducted by the Respondents. The money that was due to the petitioners parents was not paid to them by the private-respondents. The parents of the petitioners have filed writ petition namely Writ-A No.31423 of 2021, wherein this Court has disposed of the petition saying that the respondents should consider and decide the Representation of the parents of the petitioners. Since the petitioners' study was suffering by want of money and the services of parents of the petitioners have also been terminated on 10.12.2024 and then their service dues have not been paid to them, the petitioners have approached this Court by filing the writ petition with the aforesaid prayers.

6. It has been submitted that the petitioners have a Fundamental Right to Education and the counsel for the petitioners has placed reliance upon order dated 13.04.2019 rendered by the Supreme Court in the Writ Petition (Civil) No.483 of 2004 [Avinash Mehrotra Vs. Union of India and Others] wherein the Supreme Court in a Public Interest Litigation relating to a fire that occurred in a School in District Kumbakonam in the City of Madras/ Chennai, Tamilnadu had noted that the Building byelaws were not followed by most of the Schools in the country causing serious hazards for the children. The existing safety guidelines were modified and additional Rules were framed to strengthen the infrastructure to protect children studying in such schools. The National Building Code of India, 2005, was also referred to by the Supreme Court and affidavits were called for from the Central Government, the 27 States and Union Territories and thereafter certain observations by referring to education as a fundamental right of children and dereliction in duty by any of the Officers involved in non-implementation of the National Building Code and the additional guidelines by the Supreme Court were to be dealt with by taking strict disciplinary actions against such Officers. The Education Secretaries of each of the States and Union Territories were directed to file affidavits of compliance and the Court directed the matter to be listed again on 07.12.2009 for ensuring compliance of its order.

7. The counsel for the petitioners has also referred to Mohini Jain Vs. State of Karnataka and Others reported in AIR 1992 SC 1858, decided on 30.07.1992 where the Supreme Court had observed that the Right to Education is a part of right to life under Article 21 of the Constitution of India. He has also referred to Army Welfare Education Society, New Delhi Vs. Sunil Kumar Sharma & Others, Civil Appeal No.7256-7259 of 2024 decided on 09.07.2024, where the Supreme Court was considering an Appeal filed by Army Welfare Education Society which runs about 139 Schools all over the country. The Supreme Court observed that if the rights are purely of a private character no mandamus can be issued. If the management of the college is purely a private body with no public duty mandamus will not lie.

8. On behalf of the Army Welfare Education Society, it was submitted that the teaching and non-teaching staff were employees of one School by the name of St. Gabriel's Academy and since the erstwhile management had ceased to conduct the school. AWES started managing the school and erstwhile staff would have no claim with regard to service benefits to be given by the later management. Under the judgment of the High Court, AWES would be obligated to provide service conditions at par with the teaching and non-teaching staff which was recruited by the erstwhile management which would involve an outlay which the Army Public School will not be in a financial position to meet. The Supreme Court referred to the questions of law which fell for its consideration in Paragraph-6 of the judgment as follows:- "6. The following two questions of law fall for our consideration:- a. Whether the appellant Army Welfare Education Society is a "State" within Article 12 of the Constitution of India so as to make a writ petition under Article 226 of the Constitution maintainable against it? In other words, whether a service dispute in the private realm involving a private educational institution and its employees can be adjudicated upon in a writ petition filed under Article 226 of the Constitution? b. Even if it is assumed that the appellant Army Welfare Education Society is a body performing public duty amenable to writ jurisdiction, whether all its decisions are subject to judicial review or only those decisions which have public law element therein can be judicially reviewed under the writ jurisdiction?"

9. After recording the submissions made on behalf of the petitioners and the Respondents, the Supreme Court observed that the respondents had placed reliance upon a judgment rendered in Ramesh Ahluwalia Vs. State of Punjab reported in (2012) 12 SCC 331, and Marwari Balika Vidyalaya V. Asha Srivastava and Others reported in 2019 SCC Online SC 408. In Ramesh Ahluwalia, the appellant therein was working as an Administrative Officer in a privately run educational Institution and by way of Disciplinary proceedings, was removed from service by the Management Committee of the said Educational Institution. The writ petition was dismissed by the High Court and the Appeal was also dismissed thereafter SLP was filed before the Supreme Court and the argument made the basis of the judgment has been referred to by the Supreme Court in Paragraph 59 of its order which is being quoted hereinbelow:- "59. The principal argument before this Court was in regard to the maintainability of the writ petition against a private educational institution. It was argued on the behalf of the appellant therein that although a private educational institution may not fall within the definition of "State" or "other authorities/ instrumentalities" of the State under Article 12 of the Constitution, yet a writ petition would be maintainable as the said educational institution could be said to be discharging public functions by imparting education. However, the learned counsel for the educational institution therein took a plea before this Court that while considering whether a body falling within the definition of "State", it is necessary to consider whether such body is financially, functionally and administratively dominated by or under the control of the Government. It was further argued that if the control is merely regulatory either under a statute or otherwise, it would not ipso facto make the body "State" within Article 12 of the Constitution. On the conspectus of the peculiar facts of the case and the submissions advanced, this Court held that a writ petition would be maintainable if a private educational institution discharges public functions, more particularly imparting education. Even by holding so, this Court declined to extend any benefits to the teacher as the case involved disputed questions of fact. The Supreme Court however observed in Paragraph-60 that in Ramesh Ahluwalia Vs. State of Punjab reported in (2012) 12 SCC 331, the attention of the Hon'ble Judges was not drawn to earlier decision of the Supreme Court in K. Krishnamacharyulu V. Sri Venkateswara Hindu College of Engineering reported in (1997) 3 SCC 571, Federal Bank Ltd. V. Sagar Thomas reported in (2003) 10 SCC 733, Sushmita Basu Vs. Ballygunge Siksha Samity reported in (2006) 7 SCC 680, and Delhi Public School Vs. M.K. Gandhi reported in (2015) 17 SCC 353. In Marwari Balika Vidyalaya (Supra), the Supreme Court followed the judgment rendered in Ramesh Ahluwalia and the Supreme Court thereafter observed in Paragraphs-62 to 66 in Army Welfare Education Society V. Sunil Kumar Sharma reported in (2024) SCC Online SC 1683 as follows:- "62. We may say without any hesitation that respondent 1 herein cannot press into service the dictum as laid down by this Court in Marwari Balika Vidyalaya (supra) as the said case is distinguishable. The most important distinguishing feature of Marwari Balika Vidyalaya (supra) is that in the said case the removal of the teacher from service was subject to the approval of the State Government. The State Government took a specific stance before this Court that its approval was required both for the appointment as well as removal of the teacher. In the case on hand, indisputably the Government or any other agency of the Government has no role to play in the termination of Respondent 1 herein.

63. In context with Marwari Balika Vidyalaya (supra), we remind ourselves of Bye-law 49(2) which provides that no order with regard to the imposition of major penalty shall be made by the disciplinary authority except after the receipt of the approval of the Disciplinary Committee. Thus unlike Marwari Balika Vidyalaya (supra) where approval was required of the State Government, in the case on hand the approval is to be obtained from the Disciplinary Committee of This distinguishing feature seems to have been overlooked by the High Court while passing the impugned order. institution.

64. In Marwari Balika Vidyalaya (supra), the school was receiving grant-in-aid to the extent of dearness allowance. The appointment and the removal, as noted above, is required to be approved by the District Inspector of School (Primary Education) and, if any action is taken dehors such mandatory provisions, the same would not come within the realm of private element.

65. In Trigun Chand Thakur V. State of Bihar reported in (2019) 7 SCC 513, the appellant therein was appointed as a Sanskrit teacher and a show-cause notice was issued upon him on the ground that he was absent on the eve of Independence day and Teachers Day which resulted into a dismissal order passed by the Managing Committee of the private school. The challenge was made by filing a writ petition before the High Court which was dismissed on the ground that the writ petition is not maintainable against an order terminating the service by the Managing Committee of the private school. This Court held that even if the private school was receiving a financial aid from the Government, it does not make the said Managing Committee of the school a "State" within the meaning of Article 12 of the Constitution of India.

66. Merely because a writ petition can be maintained against the private individuals discharging the public duties and/or public functions, the same should not be entertained if the enforcement is sought to be secured under the realm of a private law. It would not be safe to say that the moment the private institution is amenable to writ jurisdiction then every dispute concerning the said private institution is amenable to writ jurisdiction. It largely depends upon the nature of the dispute and the enforcement of the right by an individual against such institution. The right which purely originates from a private law cannot be enforced taking aid of the writ jurisdiction irrespective of the fact that such institution is discharging the public duties and/or public functions. The scope of the mandamus is basically limited to an enforcement of the public duty and, therefore, it is an ardent duty of the court to find out whether the nature of the duty comes within the peripheral of the public duty. There must be a public law element in any action." The Supreme Court distinguished Andi Mukta 10. Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust Vs. V.R. Rudani reported in (1989) 2 SCC 691, and held that it was a case where a public trust was running a College affiliated to the Gujarat University established by State Legislation and the teachers of the University and its affiliated Colleges were governed, insofar as their pay scales were concerned, by the recommendations by University Grants Commission. "A number of circumstances weighed in the ultimate decision of this Court including the following:-

20.1. The trust was managing an affiliated college. 20.2. The college was in receipt of government aid. 20.3. The aid of the Government played a major role in the control, management and work of the educational institution. 20.4. Aided institutions, in a similar manner as government institutions, discharge a public function of imparting education to students. 20.5. All aided institutions are governed by the rules and regulations of the affiliating University. 20.6. Their activities are closely supervised by the University. 20.7. Employment in such institutions is hence, not devoid of a public character and is governed by the decisions taken by the University which are binding on the management. 21. It was in the above circumstances that this Court came to the conclusion that the service conditions of the academic staff do not partake of a private character, but are governed by a right-duty relationship between the staff and the management. A breach of the duty, it was held, would be amenable to the remedy of a writ of mandamus. While the Court recognized that "the fast expanding maze of bodies affecting rights of people cannot be put into watertight compartments", it laid down two exceptions where the remedy of mandamus would not be available:- (SCC p. 698, para 15) '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." The Supreme Court thereafter expressed its 11. considered opinion that merely because the State Government has regulatory power the same by itself, would not confer any such status upon the Institution (Schools) nor put any obligation upon it which may be enforced to it under Article 226 of the Constitution of India. It observed that an application under Article 226 of the Constitution is maintainable against a person or a body discharging public duty or positive obligation of public functions. The public duties 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 collective benefit of the public or section of it and the authority to do so must be accepted by the public. Even if it be assumed that an Educational Institution imparting public duty, the act complained of must have direct nexus with the discharge of public duty. “75. We may sum up our final conclusions as under:- 75.1. 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 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. 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.

75.3. 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. 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.

75.4. 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. It is immaterial whether “A” or “B” is employed by school to discharge that duty. In any case, the terms of employment of contract between a school and non- teaching 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 non-teaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered with 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.

75.5. From the pleadings in the original writ petition, it is apparent that no element of any public law is agitated or otherwise made out. In other words, the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character." * * * "However, the relationship between the respondents herein and the appellant society is that of an employee and a private employer arising out of a private contract. If there is a breach of a covenant of a private contract, the same does not touch any public law element. The school cannot be said to be discharging any public duty in connection with the employment of the respondents."

12. The counsel for the petitioners has also referred to a judgment rendered in Society for Un-aided Private Schools of Rajasthan Vs. Union of India and Another, decided on 12.04.2012 in Writ Petition (C) No.95 of 2010, where referring to Article 51-A of the Constitution and Right to Education Act 2009, and the challenge made to Central Education Institution (Reservation in Admission) Act, 2003, made in the case of Ashok Kumar Thakur Vs. Union of India and Others reported in 2008 (6) SCC page 1, where the Supreme Court observed that the State in order to ensure socio economic rights of the Citizens of the Country at large can remove obstacles by limiting the fundamental rights of the management of private Un- aided Institutions through Constitutional amendments under Article 15(4), 15(5) of the Constitution. This case is related to reservation policy in admissions in private professional Institutions and is distinguishable.

13. It has been submitted by the counsel for the petitioners, who were students of the School in question that they are entitled to file this writ petition with the aforesaid prayers, we find that all the prayers that the petitioners have made before this Court relate to grievances relating to the service tenure of their parents. The parents of the petitioners have already filed Writ-A No.31423 of 2021 which was disposed of by this Court.

14. In so far as the petitioners Right to Education is concerned, the Petitioner no.1 has also passed High School and is not covered and the Right to Free Education which covers children from Class-I to Class- VIII. In so far as the Petitioner no.2 is concerned, Annexure No.2 to the Paper book relates to her Class IVth Marksheet of the year 2020-2021, four years have passed and the Petitioner no.2 may have crossed Class VIIIth in the meantime.

15. We find no good ground to entertain the writ petition, it is liable to be dismissed.

16. After the order was passed, the counsel for the petitioners says that he wishes to file supplementary affidavit which he has prepared. We do not consider it necessary to give the liberty as prayed by the learned counsel for the petitioners.

17. The writ petition is accordingly dismissed. Order Date :- 11.8.2025 N.PAL NARESH PAL NARESH PAL NARESH PAL NARESH PAL NARESH PAL NARESH PAL High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench Lucknow Bench Lucknow Bench Lucknow Bench Lucknow Bench

1. Heard the learned counsel for the petitioners and the learned Standing Counsel who appears on behalf of the State-respondent no.2. Shri Surya Prakash, Advocate has filed his Memo of Appearance on behalf of the Central Government which is taken on record.

2. We have gone through the array of the respondents, the Respondent nos.3 to 9 are the Seventh- Day Adventist Senior Secondary School through its Principal and its Manager and etc. Secretary and Others i.e. all Officers who are in some way In-charge of running Seventh-Day Adventist, Senior Secondary School.

3. This petition has been filed by the petitioner for the following main prayers:- "i) A writ, order or direction in the nature of Mandamus commanding the Opposite parties to pay the due salaries, funds, gratuity, PF, other Bonus and Gifts incentives, Worker allowances, head of family allowances and other allowances etc. to the parents of petitioners till the date of termination order since 01.09.2021 to 10.12.2024 of 39 months and the petitioners be allowed to join the studies in the school. ii) The 10% of salary deduction forcibly from the petitioner's parents (Father and Mother) from 01.06.2004 to till date that money also be paid with interest to the petitioner's parents within three weeks or so. iii) Any order or direction that this Hon'ble Court may deem just and proper in the facts and circumstances of the case. iv) Allow the writ petition exemplary costs."

4. Learned Standing Counsel has raised a preliminary objection regarding the maintainability of the petition.

5. It is the case of the petitioners' that the petitioners' are students of Seventh-Day Adventist, Senior Secondary School and they have a right to free education. The father of the petitioners' was appointed as Cashier in the same school in the year 2005 and regularized in 2007. The mother was primary teacher in the said School since 2004. She was suspended in 2019 and later on, again suspended on 01.09.2021 and she was later on transferred to a remote place. The petitioners parents have again been transferred this time to West Bengal in the mid-semester of an academic year. The petitioners studies have been affected in this manner. The parents did not go to join in West Bengal and sent a request letter to the Employer to consider their grievance but the Employers have rejected the request. The parents of the petitioners have been harassed by them. 10% of their salary was also deducted by the Respondents. The money that was due to the petitioners parents was not paid to them by the private-respondents. The parents of the petitioners have filed writ petition namely Writ-A No.31423 of 2021, wherein this Court has disposed of the petition saying that the respondents should consider and decide the Representation of the parents of the petitioners. Since the petitioners' study was suffering by want of money and the services of parents of the petitioners have also been terminated on 10.12.2024 and then their service dues have not been paid to them, the petitioners have approached this Court by filing the writ petition with the aforesaid prayers.

6. It has been submitted that the petitioners have a Fundamental Right to Education and the counsel for the petitioners has placed reliance upon order dated 13.04.2019 rendered by the Supreme Court in the Writ Petition (Civil) No.483 of 2004 [Avinash Mehrotra Vs. Union of India and Others] wherein the Supreme Court in a Public Interest Litigation relating to a fire that occurred in a School in District Kumbakonam in the City of Madras/ Chennai, Tamilnadu had noted that the Building byelaws were not followed by most of the Schools in the country causing serious hazards for the children. The existing safety guidelines were modified and additional Rules were framed to strengthen the infrastructure to protect children studying in such schools. The National Building Code of India, 2005, was also referred to by the Supreme Court and affidavits were called for from the Central Government, the 27 States and Union Territories and thereafter certain observations by referring to education as a fundamental right of children and dereliction in duty by any of the Officers involved in non-implementation of the National Building Code and the additional guidelines by the Supreme Court were to be dealt with by taking strict disciplinary actions against such Officers. The Education Secretaries of each of the States and Union Territories were directed to file affidavits of compliance and the Court directed the matter to be listed again on 07.12.2009 for ensuring compliance of its order.

7. The counsel for the petitioners has also referred to Mohini Jain Vs. State of Karnataka and Others reported in AIR 1992 SC 1858, decided on 30.07.1992 where the Supreme Court had observed that the Right to Education is a part of right to life under Article 21 of the Constitution of India. He has also referred to Army Welfare Education Society, New Delhi Vs. Sunil Kumar Sharma & Others, Civil Appeal No.7256-7259 of 2024 decided on 09.07.2024, where the Supreme Court was considering an Appeal filed by Army Welfare Education Society which runs about 139 Schools all over the country. The Supreme Court observed that if the rights are purely of a private character no mandamus can be issued. If the management of the college is purely a private body with no public duty mandamus will not lie.

8. On behalf of the Army Welfare Education Society, it was submitted that the teaching and non-teaching staff were employees of one School by the name of St. Gabriel's Academy and since the erstwhile management had ceased to conduct the school. AWES started managing the school and erstwhile staff would have no claim with regard to service benefits to be given by the later management. Under the judgment of the High Court, AWES would be obligated to provide service conditions at par with the teaching and non-teaching staff which was recruited by the erstwhile management which would involve an outlay which the Army Public School will not be in a financial position to meet. The Supreme Court referred to the questions of law which fell for its consideration in Paragraph-6 of the judgment as follows:- "6. The following two questions of law fall for our consideration:- a. Whether the appellant Army Welfare Education Society is a "State" within Article 12 of the Constitution of India so as to make a writ petition under Article 226 of the Constitution maintainable against it? In other words, whether a service dispute in the private realm involving a private educational institution and its employees can be adjudicated upon in a writ petition filed under Article 226 of the Constitution? b. Even if it is assumed that the appellant Army Welfare Education Society is a body performing public duty amenable to writ jurisdiction, whether all its decisions are subject to judicial review or only those decisions which have public law element therein can be judicially reviewed under the writ jurisdiction?"

9. After recording the submissions made on behalf of the petitioners and the Respondents, the Supreme Court observed that the respondents had placed reliance upon a judgment rendered in Ramesh Ahluwalia Vs. State of Punjab reported in (2012) 12 SCC 331, and Marwari Balika Vidyalaya V. Asha Srivastava and Others reported in 2019 SCC Online SC 408. In Ramesh Ahluwalia, the appellant therein was working as an Administrative Officer in a privately run educational Institution and by way of Disciplinary proceedings, was removed from service by the Management Committee of the said Educational Institution. The writ petition was dismissed by the High Court and the Appeal was also dismissed thereafter SLP was filed before the Supreme Court and the argument made the basis of the judgment has been referred to by the Supreme Court in Paragraph 59 of its order which is being quoted hereinbelow:- "59. The principal argument before this Court was in regard to the maintainability of the writ petition against a private educational institution. It was argued on the behalf of the appellant therein that although a private educational institution may not fall within the definition of "State" or "other authorities/ instrumentalities" of the State under Article 12 of the Constitution, yet a writ petition would be maintainable as the said educational institution could be said to be discharging public functions by imparting education. However, the learned counsel for the educational institution therein took a plea before this Court that while considering whether a body falling within the definition of "State", it is necessary to consider whether such body is financially, functionally and administratively dominated by or under the control of the Government. It was further argued that if the control is merely regulatory either under a statute or otherwise, it would not ipso facto make the body "State" within Article 12 of the Constitution. On the conspectus of the peculiar facts of the case and the submissions advanced, this Court held that a writ petition would be maintainable if a private educational institution discharges public functions, more particularly imparting education. Even by holding so, this Court declined to extend any benefits to the teacher as the case involved disputed questions of fact. The Supreme Court however observed in Paragraph-60 that in Ramesh Ahluwalia Vs. State of Punjab reported in (2012) 12 SCC 331, the attention of the Hon'ble Judges was not drawn to earlier decision of the Supreme Court in K. Krishnamacharyulu V. Sri Venkateswara Hindu College of Engineering reported in (1997) 3 SCC 571, Federal Bank Ltd. V. Sagar Thomas reported in (2003) 10 SCC 733, Sushmita Basu Vs. Ballygunge Siksha Samity reported in (2006) 7 SCC 680, and Delhi Public School Vs. M.K. Gandhi reported in (2015) 17 SCC 353. In Marwari Balika Vidyalaya (Supra), the Supreme Court followed the judgment rendered in Ramesh Ahluwalia and the Supreme Court thereafter observed in Paragraphs-62 to 66 in Army Welfare Education Society V. Sunil Kumar Sharma reported in (2024) SCC Online SC 1683 as follows:- "62. We may say without any hesitation that respondent 1 herein cannot press into service the dictum as laid down by this Court in Marwari Balika Vidyalaya (supra) as the said case is distinguishable. The most important distinguishing feature of Marwari Balika Vidyalaya (supra) is that in the said case the removal of the teacher from service was subject to the approval of the State Government. The State Government took a specific stance before this Court that its approval was required both for the appointment as well as removal of the teacher. In the case on hand, indisputably the Government or any other agency of the Government has no role to play in the termination of Respondent 1 herein.

63. In context with Marwari Balika Vidyalaya (supra), we remind ourselves of Bye-law 49(2) which provides that no order with regard to the imposition of major penalty shall be made by the disciplinary authority except after the receipt of the approval of the Disciplinary Committee. Thus unlike Marwari Balika Vidyalaya (supra) where approval was required of the State Government, in the case on hand the approval is to be obtained from the Disciplinary Committee of This distinguishing feature seems to have been overlooked by the High Court while passing the impugned order. institution.

64. In Marwari Balika Vidyalaya (supra), the school was receiving grant-in-aid to the extent of dearness allowance. The appointment and the removal, as noted above, is required to be approved by the District Inspector of School (Primary Education) and, if any action is taken dehors such mandatory provisions, the same would not come within the realm of private element.

65. In Trigun Chand Thakur V. State of Bihar reported in (2019) 7 SCC 513, the appellant therein was appointed as a Sanskrit teacher and a show-cause notice was issued upon him on the ground that he was absent on the eve of Independence day and Teachers Day which resulted into a dismissal order passed by the Managing Committee of the private school. The challenge was made by filing a writ petition before the High Court which was dismissed on the ground that the writ petition is not maintainable against an order terminating the service by the Managing Committee of the private school. This Court held that even if the private school was receiving a financial aid from the Government, it does not make the said Managing Committee of the school a "State" within the meaning of Article 12 of the Constitution of India.

66. Merely because a writ petition can be maintained against the private individuals discharging the public duties and/or public functions, the same should not be entertained if the enforcement is sought to be secured under the realm of a private law. It would not be safe to say that the moment the private institution is amenable to writ jurisdiction then every dispute concerning the said private institution is amenable to writ jurisdiction. It largely depends upon the nature of the dispute and the enforcement of the right by an individual against such institution. The right which purely originates from a private law cannot be enforced taking aid of the writ jurisdiction irrespective of the fact that such institution is discharging the public duties and/or public functions. The scope of the mandamus is basically limited to an enforcement of the public duty and, therefore, it is an ardent duty of the court to find out whether the nature of the duty comes within the peripheral of the public duty. There must be a public law element in any action." The Supreme Court distinguished Andi Mukta 10. Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust Vs. V.R. Rudani reported in (1989) 2 SCC 691, and held that it was a case where a public trust was running a College affiliated to the Gujarat University established by State Legislation and the teachers of the University and its affiliated Colleges were governed, insofar as their pay scales were concerned, by the recommendations by University Grants Commission. "A number of circumstances weighed in the ultimate decision of this Court including the following:-

20.1. The trust was managing an affiliated college. 20.2. The college was in receipt of government aid. 20.3. The aid of the Government played a major role in the control, management and work of the educational institution. 20.4. Aided institutions, in a similar manner as government institutions, discharge a public function of imparting education to students. 20.5. All aided institutions are governed by the rules and regulations of the affiliating University. 20.6. Their activities are closely supervised by the University. 20.7. Employment in such institutions is hence, not devoid of a public character and is governed by the decisions taken by the University which are binding on the management. 21. It was in the above circumstances that this Court came to the conclusion that the service conditions of the academic staff do not partake of a private character, but are governed by a right-duty relationship between the staff and the management. A breach of the duty, it was held, would be amenable to the remedy of a writ of mandamus. While the Court recognized that "the fast expanding maze of bodies affecting rights of people cannot be put into watertight compartments", it laid down two exceptions where the remedy of mandamus would not be available:- (SCC p. 698, para 15) '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." The Supreme Court thereafter expressed its 11. considered opinion that merely because the State Government has regulatory power the same by itself, would not confer any such status upon the Institution (Schools) nor put any obligation upon it which may be enforced to it under Article 226 of the Constitution of India. It observed that an application under Article 226 of the Constitution is maintainable against a person or a body discharging public duty or positive obligation of public functions. The public duties 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 collective benefit of the public or section of it and the authority to do so must be accepted by the public. Even if it be assumed that an Educational Institution imparting public duty, the act complained of must have direct nexus with the discharge of public duty. “75. We may sum up our final conclusions as under:- 75.1. 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 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. 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.

75.3. 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. 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.

75.4. 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. It is immaterial whether “A” or “B” is employed by school to discharge that duty. In any case, the terms of employment of contract between a school and non- teaching 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 non-teaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered with 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.

75.5. From the pleadings in the original writ petition, it is apparent that no element of any public law is agitated or otherwise made out. In other words, the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character." * * * "However, the relationship between the respondents herein and the appellant society is that of an employee and a private employer arising out of a private contract. If there is a breach of a covenant of a private contract, the same does not touch any public law element. The school cannot be said to be discharging any public duty in connection with the employment of the respondents."

12. The counsel for the petitioners has also referred to a judgment rendered in Society for Un-aided Private Schools of Rajasthan Vs. Union of India and Another, decided on 12.04.2012 in Writ Petition (C) No.95 of 2010, where referring to Article 51-A of the Constitution and Right to Education Act 2009, and the challenge made to Central Education Institution (Reservation in Admission) Act, 2003, made in the case of Ashok Kumar Thakur Vs. Union of India and Others reported in 2008 (6) SCC page 1, where the Supreme Court observed that the State in order to ensure socio economic rights of the Citizens of the Country at large can remove obstacles by limiting the fundamental rights of the management of private Un- aided Institutions through Constitutional amendments under Article 15(4), 15(5) of the Constitution. This case is related to reservation policy in admissions in private professional Institutions and is distinguishable.

13. It has been submitted by the counsel for the petitioners, who were students of the School in question that they are entitled to file this writ petition with the aforesaid prayers, we find that all the prayers that the petitioners have made before this Court relate to grievances relating to the service tenure of their parents. The parents of the petitioners have already filed Writ-A No.31423 of 2021 which was disposed of by this Court.

14. In so far as the petitioners Right to Education is concerned, the Petitioner no.1 has also passed High School and is not covered and the Right to Free Education which covers children from Class-I to Class- VIII. In so far as the Petitioner no.2 is concerned, Annexure No.2 to the Paper book relates to her Class IVth Marksheet of the year 2020-2021, four years have passed and the Petitioner no.2 may have crossed Class VIIIth in the meantime.

15. We find no good ground to entertain the writ petition, it is liable to be dismissed.

16. After the order was passed, the counsel for the petitioners says that he wishes to file supplementary affidavit which he has prepared. We do not consider it necessary to give the liberty as prayed by the learned counsel for the petitioners.

17. The writ petition is accordingly dismissed. Order Date :- 11.8.2025 N.PAL NARESH PAL NARESH PAL NARESH PAL NARESH PAL NARESH PAL NARESH PAL High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench Lucknow Bench Lucknow Bench Lucknow Bench Lucknow Bench