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2019 (2) TMI 2110 - HC - Indian LawsJurisdiction of the High Court under Article 226 of the Constitution of India - private educational body performing public duty or discharging public function - 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? - HELD THAT - 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. 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. Governmental functions are multifacial. There cannot be a single test for defining public functions. Such functions are performed by a 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. 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. Whether private educational institutions perform public duty? - HELD THAT - 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 - 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 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. 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. 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.
Issues Involved:
1. 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. 2. 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. Issue-wise Detailed Analysis: Issue 1: 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. The judgment begins by examining the nature of private educational institutions and their functions. It notes that Saint Francis School, a Christian Minority Institution, is registered under the Societies Registration Act, 1860, and affiliated with the Council for the Indian School Certificate Examinations, New Delhi. The petitioner, an assistant teacher, challenged his termination as arbitrary and in violation of service conditions. A preliminary objection was raised regarding the maintainability of the writ petition under Article 226 against a private educational institution, referencing the Full Bench decision in M.K. Gandhi, which held that Delhi Public School was not the 'State' under Article 12 of the Constitution. However, the Supreme Court in Ramesh Ahluwalia held that even purely private bodies performing public duties are amenable to judicial review under Article 226. The judgment discusses the scope and ambit of Article 12 and Article 226 of the Constitution. Article 12 defines 'State' to include the Government of India, Parliament, Government of the State, Legislatures of the States, local authorities, and 'other authorities'. The interpretation of 'other authorities' has evolved to include bodies performing governmental or quasi-governmental functions. The judgment cites various cases, including Sukhdev Singh and Pradeep Kumar Biswas, which expanded the definition to include bodies financially, functionally, and administratively dominated by the government. Article 226 empowers High Courts to issue writs for enforcement of fundamental rights and non-fundamental rights against 'any person or authority' and 'for any other purpose'. The term 'authority' in Article 226 is interpreted more liberally than in Article 12, covering any person or body performing public duty. The Supreme Court in Anadi Mukta held that the nature of the duty imposed on the body is determinative, not its form. The judgment further explores the concept of public duty and public function, noting that private bodies performing essential governmental functions are subject to judicial review. It references cases like Binny Ltd. and Federal Bank Ltd., which discuss the public law element in private actions. The judgment concludes that private educational institutions, including those not receiving government aid, perform public duties by supplementing the state's efforts in imparting education. This public duty makes them amenable to judicial review under Article 226. The Supreme Court's decision in SRM University affirmed that institutions imparting higher education perform public functions and are subject to judicial review. Issue 2: 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. The Full Bench in M.K. Gandhi held that Delhi Public School was not a 'State' under Article 12, and thus, writ petitions against it were not maintainable. However, it directed the CBSE to take action against the school for violating affiliation bylaws. The Supreme Court criticized this direction, stating that no writ lies against a private school not considered a 'State'. In Anjani Kumar Srivastava, the Division Bench, despite acknowledging Ramesh Ahluwalia, declined to interfere, citing the private nature of the contract between the master and servant. The judgment in Ms. Geeta Pushp also declined writ jurisdiction for enforcing service contracts against private institutions. The judgment concludes that the broad principles of law in M.K. Gandhi and Anjani Kumar Srivastava are confined to their specific facts and do not establish a general rule that private educational institutions do not render public functions and are not amenable to judicial review. Therefore, these judgments do not require revisiting. Conclusion: The judgment answers the reference in the following terms: 1. Private institutions imparting education perform public duties, a State function, and are amenable to judicial review under Article 226 of the Constitution of India. 2. The principles in M.K. Gandhi and Anjani Kumar Srivastava are specific to their facts and do not require revisiting. The writ petition is to be placed before the regular Bench for disposal in light of these answers.
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