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TMI Blog2022 (8) TMI 1528X X X X Extracts X X X X X X X X Extracts X X X X ..... orceable right on any person as against the Committee of Management. In Km. Regina v. St. Aloysins High Elementary School and another, [ 1971 (3) TMI 126 - SUPREME COURT] , this Court held that the mere fact that an institution is recognised by an authority, does not itself create an enforceable right to an aggrieved party against the Management by a teacher on the ground of breach or non-compliance of any of the Rules which was part of terms of the recognition. Thus, where a teacher or non-teaching staff challenges action of Committee of Management that it has violated the terms of contract or the Rules of the Affiliation Byelaws, the appropriate remedy of such teacher or employee is to approach the CBSE or to take such other legal remedy available under law. It is open to the CBSE to take appropriate action against the Committee of Management of the institution for withdrawal of recognition in case it finds that the Committee of Management has not performed its duties in accordance with the Affiliation Byelaws. Thus, it can be safely concluded that power of judicial review Under Article 226 of the Constitution of India can be exercised by the High Court even if the body against w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal is at the instance of a private unaided minority educational institution and its disciplinary committee, (Respondents before the High Court) and is directed against the judgment and order dated 15.12.2021 passed by a Division Bench of the High Court of Madhya Pradesh, Bench Indore in the Writ Appeal No. 485 of 2017 by which the Division Bench set aside the judgment and order passed by a learned single Judge of the High Court and held that a writ petition filed by an employee of a private unaided minority educational institution seeking to challenge his termination from service is maintainable in law. 3. In the present appeal, two pivotal issues fall for consideration of this Court: (a) Whether a writ petition Under Article 226 of the Constitution of India is maintainable against a private unaided minority institution? (b) Whether a service dispute in the private realm involving a private educational institution and its employee can be adjudicated in a writ petition filed Under Article 226 of the Constitution? In other words, even if a body performing public duty is amenable to writ jurisdiction, are all its decisions subject to judicial review or only those decisions which have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of employer - employee with the school because the school cannot take your service without paying your salary. Charge-IV- That earlier also your rude behavior with the Principal of the school was noticed for which you were warned and advised to improve your behavior and talk politely. However, no improvement has been shown by you in your behavior. You have misbehaved with the two earlier Principals also namely: (1) Sr. Lalita (Letter dated 17.04.2009) and (2) Sr. Flavia. Charge V That, you were threatening the institution by writing to the President of our country that if something happens to you physically or mentally on work due to such behavior at home the sole responsibility of it would be on the School Management, the Principal and the various authorities. This behaviour has compelled the school to complain to the police regarding your threat. Charge-VI- That, you are in the habit of taking leaves at will and insisting on taking leave at your sole convenience, sometimes without any sanction also. After conclusion of the departmental enquiry, the services of the Respondent No. 1 came to be terminated vide order dated 08.05.2015. 7. The Respondent No. 1 herein challenged the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of teachers duly appointed to a post in the private institution, it has been held by the Supreme Court that when an element of public interest is created and institution is catering to that element, the teacher, the arm of the institution is also entitled to avail of remedy provided Under Article 226. In the present case, Petitioner is not a teacher but is a member of clerical staff being L.D.C., hence he is not entitled to the benefit of that judgment. So far as the judgment in the matter of Frank Anthony Public School Employees Association (supra) is concerned, that was a case where the teachers had approached the court for writ of mandamus seeking equalisation of their pay scales and condition of service with those of their counterparts in government schools and in that context it was observed that 'the management of a minority Educational institution cannot be permitted under the guise of the fundamental right guaranteed by Article 30(1) of the Constitution, to oppress or exploit its employees any more than any other private employee, therefore the said judgment is distinguishable on its own facts. Similarly the benefit of Single Bench judgment of this Court in the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndeavor to decide the petition expeditiously preferably within two months. 13. The writ appeal is allowed to the extent indicated above. 13. It appears from the aforesaid that the appeal court heavily relied upon the decision of this Court rendered in the case of Marwari Balika Vidhyalaya v. Asha Shrivastava, reported in (2020) 14 SCC 449, which, in turn, has relied upon its decision in the case of Ramesh Ahluwalia v. State of Punjab, reported in (2012) 12 SCC 331. 14. In view of the aforesaid, the Appellants are before this Court with the present appeal. LEGAL STATUS OF THE APPELLANT NO. 1 - SOCIETY 15. The Appellant No. 1 is a Society registered under the Madhya Pradesh Society Registrikaran Adhiniyam, 1973. The Society runs an all-girls school in Mhow, Indore, Madhya Pradesh, by the name St. Mary's Higher Secondary School, which was founded by a group of French Catholic Nuns in 1893. The school is a private unaided minority educational institution, which enjoys the protection guaranteed Under Article 30(1) of the Constitution. There is absolutely no Governmental control over the functioning and administration of the school. The Respondent No. 1 herein was employed in this sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teaching staff of the school. Chapter -7 Service Rules for Employees: 26. Short Title: (1) Each school affiliated/ to be affiliated with the Board shall frame Service Rules for its employees which will be as per Education Act of the State/ Union Territory, if the Act makes adoption of the same obligatory, otherwise as per Service Rules given in subsequent sections. (2) Service Contract will be entered with each employee as per the provision in the Education Act of the State / Union Territory or as given in Appendix III, if not obligatory as per the State Education Act / Act applicable in the country in which the school is situated. 27. Appointments: (1) All appointments to all categories of employees except Group 'D' employees (multitasking staff/ housekeeping) as per relevant country /Government of India gradation shall be made by Managing Committee either by direct recruitment or by promotion through a Selection Committee constituted by the School Society / Trust / Company Registered Under Section 25 of the Companies Act, 1956 or under the appropriate Acts of relevant country and in accordance with and upon such conditions as the Managing committee may decide, which shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... breach is a code of conduct. 46. Disciplinary Procedure: Suspension 1. The School Managing Committee may place an employee under suspension where: a. The disciplinary proceedings against her are contemplated or pending. Or b. A case against her in respect of any criminal offence is under investigation or trial; Or c. She is charged with embezzlement; Or d. She is charged with cruelty / physical punishment or mental harassment towards any student or any employee of the school. Or e. She is charged with misbehavior towards any parent, guardian student or employee of the school; Or f. She is charged with a breach of any other Code of Conduct. 49. Procedure for Imposing Major Penalty: 1. No order imposing on any employee any major penalty shall be made except after an inquiry is held as far as may be, in the manner specified below: a) The disciplinary authority shall frame definite charges on the basis of the allegation on which the inquiry is proposed to be held and a copy of the charges together with the statement of the allegations on which they are based shall be furnished to employee and she shall be required to submit within such time as may be specified by the disciplinary auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee. The Disciplinary Committee shall consist of the following: a) The Chairman of the School Managing committee or in her absence any member of the Committee, nominated by her. b) The Manager of the School, and where the disciplinary proceeding is against her any other person of the Committee nominated by the Chairman. c) A nominee of the Board appropriate authority, She shall act as an adviser. d) The Head of the School, except where the disciplinary proceedings is against her, the Head of any other school nominated by the CBSE or Director of Education in case the Act so provides. e) One teacher who is a member of School Managing Committee of the school nominated by the Chairman of the Committee. 2. The Disciplinary Committee shall carefully examine the findings of the enquiry officer reasons for imposing penalty recorded by the Disciplinary Authority and the representation by the employee and pass orders as it may deem fit. Appendix-IV attached to the Byelaws is with respect to the minority educational institutions. Clause 6 of Appendix-IV reads thus: 6. Disciplinary Control over Staff in Minority Educational Institutions: While the managements should exercise the disciplinary co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent No. 1 (Rajendra Prasad Bhargava) is filing this Written Notes as per this Hon'ble Court's Order Dated: 08.08.2022 seeking that the judgment and final order dated: 15.12.2021 of the Hon'ble High Court of Madhya Pradesh, Bench at Indore in Writ Appeal No. 485/2017 kindly be upheld whereby the writ petition of Respondent No. 1 was maintainable. That the Respondent No. 1 was working in St. Mary's Hr. Section School, Mhow (M.P.) run by the Appellant namely St. Mary's Education Society, serving as a LDC since July 1, 1987. That, the Respondent No. 1 has performed his duty honestly, diligently, allegiance (loyalty) and with hard work during his 27 years of service and there is no adverse remark in his Service Book and Annual Confidential Roll. That, as far as the Respondent No. 1 has knowledge and information, on the basis of that the Respondent No. 1 humbly prays to this Court that: I) Mandamus is a very wide remedy which must be available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief Under Article 226. A word is said to be mandatory as well as defining in nature when the word MUST is used in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right leg. 23. He has prayed for the following reliefs: Humble Prayer to this Court in the interest of Justice: 1. That, I (Respondent No. 1), therefore, humbly pray to this Court that kindly reject the contention urged by the Appellant on the maintainability of the writ petition and to kindly upheld the Impugned judgment and final order dated: 15.12.2021 rightly and legally held by the High Court of Madhya Pradesh, Bench at Indore in Writ Appeal No. 485 of 2017. 2. That, the impugned order dated 23.09.2016 passed by the Appellant, being illegal, improper and inoperative, may kindly be set aside; 3. That, the termination order dated 08.05.2015 passed by the disciplinary authority may kindly be set aside; 4. That, necessary orders may kindly be passed for reinstating the Respondent No. 1 at his original post with all consequential benefits and back wages; 5. Any other relief, which this Court may consider necessary in the interest of justice, may also be granted in favor of the Respondent No. 1. 24. Later in point of time, the Respondent No. 1 filed additional written submissions dated 11.08.2022, wherein the following has been stated: 1. That, when Respondent No. 1 was appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be performing public functions. To put it in other words, the Appellant No. 1 could be said to be performing public duty. 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. 28. We may at the outset state that the CBSE is only a society registered under the Societies Registration Act, 1860 and the school affiliated to it is not a creature of the statute and hence not a statutory body. The distinction between a body created by the statute and a body governed in accordance with a statute has been explained by this Court in the Executive Committee of Vaish Degree College v. Lakshimi Narain, (1976) 2 SCC 58, as follows: It is, therefore, clear that there is a well marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere terminated, the Court held that the writ petition Under Article 226 is not maintainable as the institution cannot be treated as the instrumentality of the State. The matter was considered in detail in M/s. Habans Kaur v. Committee of Management, Guru Teghbahadur Public School, Meerut and Anr., 1992 Labour and Industrial Cases 2070 (All), wherein the services of the Petitioner were terminated by the Managing Committee of the institution recognised by the C.B.S.E. It was held that the Affiliation Bye-laws framed by the C.B.S.E. has no statutory force. The Court Under Article 226 of the Constitution of India can enforce compliance of statutory provision against a Committee of Management as held in a Full Bench decision of this Court in Aley Ahmad Abdi v. District Inspector of Schools, Allahabad and Ors. AIR 1977 All. 539. The Affiliation Bye-laws of C.B.S.E. having no statutory force, the only remedy against the aggrieved person is to approach C.B.S.E. putting his grievances in relation to the violation of the Affiliation Bye-laws by the institution. 33. Thus, where a teacher or non-teaching staff challenges action of Committee of Management that it has violated the terms of contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is 'State' Under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law. xxxx 52. It is trite that contract of personal service cannot be enforced. There are three exceptions to this rule, namely: (i) when the employee is a public servant working under the Union of India or State; (ii) when such an employee is employed by an authority/body which is a State within the meaning of Article 12 of the Constitution of India; and (ii) when such an employee is 'workmen' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and raises a dispute regarding his termination by invoking the machinery under the said Act. In the first two cases, the employment ceases to have private law character and 'status' to such an employment is attached. In the third category of cases, it is the Industrial Disputes Act which confers jurisdiction on the labour cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e functions when it is 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.... (Emphasis supplied) 39. This Court considered various of its other decisions to examine the question of public law remedy Under Article 226 of the Constitution. This Court observed in Binny Ltd. (supra) as under: 29. Thus, it can be seen that a writ of mandamus or the remedy Under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel the public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to do so. 43. In the case of Committee of Management, Delhi Public School and Anr. v. M.K. Gandhi, reported in (2015) 17 SCC 353, this Court held that no writ is maintainable against a private school as it is not a State within the meaning of Article 12 of the Constitution of India. 44. In the case of Trigun Chand Thakur v. State of Bihar and Ors., reported in (2019) 7 SCC 513, this Court upheld the view of a Division Bench of the Patna High Court which held that a teacher of privately managed school, even though financially aided by the State Government or the Board, cannot maintain a writ petition against an order of termination from service passed by the Management. 45. In the case of Satimbla Sharma (supra), this Court held that the unaided private minority schools over which the Government has no administrative control because of their autonomy Under Article 30(1) of the Constitution are not State within the meaning of Article 12 of the Constitution. As the right to equality Under Article 14 of the Constitution is available against the State, it cannot be claimed against unaided private minority private schools. 46. The Full Bench of the Allahabad High Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the aforesaid judgment has distinguished the ratio by holding that the writ Under Article 226 of the Constitution against a private educational institute would be justified only if a public law element is involved and if it is only a private law remedy no writ petition would lie. In the present cases, there is no question of public law element involved inasmuch as the grievances of the Appellants are of personal nature. We, accordingly, hold that writ petitions are not maintainable against the private institute. There is no infirmity in the order passed by the learned Single Judge and affirmed by the Division Bench. These appeals are devoid of merit and are, accordingly, dismissed. No costs. (Emphasis supplied) 48. We may also refer to and rely upon the decision of this Court in the case of Vidya Ram Misra v. The Managing Committee Shri Jai Narain College, (1972) 1 SCC 623 : AIR 1972 SC 1450. The Appellant therein filed a writ petition before the Lucknow Bench of the High Court of Allahabad challenging the validity of a resolution passed by the Managing Committee of Shri Jai Narain College, Lucknow, an associated college of the Lucknow University, terminating his services and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposed by a statute. The college, or the Managing Committee in question, is not a statutory body and so the argument of Mr. Setalvad that the case in hand will fall under the third exception cannot be accepted. The contention of counsel that this Court has sub-silentio sanctioned the issue of a writ Under Article 226 to quash an order terminating services of a teacher passed by a college similarly situate in Prabhakar Ramakrishna Jodh (supra), and, therefore, the fact that the college or the Managing Committee was not a statutory body was no hindrance to the High Court issuing the writ prayed for by the Appellant has no merit as this Court expressly stated in the judgment that no such contention was raised in the High Court and so it cannot be allowed to be raised in this Court. 49. In the case on hand, the facts are similar. Rule 26(1) of the Affiliation Byelaws, framed by the CBSE, provides that each school affiliated with the Board shall frame Service Rules. Sub-rule (2) of it provides that a service contract will be entered with each employee as per the provision in the Education Act of the State/U.T. or as given in the Appendix III, if not obligatory as per the State Education ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent is involved. This Court has held that a writ Under Article 226 of the Constitution against a private educational institution shall be maintainable only if a public law element is involved and if there is no public law element is involved, no writ lies. 52. In T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, an eleven-Judge Bench of this Court formulated certain points in fact to reconsider its earlier decision in the case of Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717, and also the case of Unnikrishnan P.J. v. State of A.P., reported in (1993) 4 SCC 111, regarding the right of the minority institution including administration of the student and imparting education vis- -vis the right of administration of the non-minority student . In the said case, very important points arose as follows: 5. (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and Regulation of fees etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from service. The writ petition was ordered to be dismissed in limine holding that the said educational institution being an unaided and a private school managed by the society cannot be said to be an instrument of the State. The appeal before the Division Bench also came to be dismissed. The matter travelled to this Court. 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 with 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 arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt-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. 60. In Trigun Chand Thakur (supra), 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 the Independence day and the 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. 61. Merely because a writ petition can be maintained against the private individuals discharging the public du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the motto Atmano Mokshartham Jagad Hitaya Cha . The main object of the Ramakrishna Mission is to impart knowledge in and promote the study of Vedanta and its principles propounded by Shri. Ramakrishna Paramahansa and practically illustrated by his own life and of comparative theology in its widest form. Its objects include, inter alia to establish, maintain, carry on and assist schools, colleges, universities, research institutions, libraries, hospitals and take up development and general welfare activities for the benefit of the underprivileged/backward/tribal people of society without any discrimination. These activities are voluntary, charitable and non-profit making in nature. The activities undertaken by the Mission, a non-profit entity are not closely related to those performed by the State in its sovereign capacity nor do they partake of the nature of a public duty. 19. The Governing Body of the Mission is constituted by members of the Board of Trustees of Ramakrishna Math and is vested with the power and authority to manage the organisation. The properties and funds of the Mission and its management vest in the Governing Body. Any person can become a member of the Miss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 recognised 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned by the private law of contract and with no remedy available Under Article 226 of the Constitution? 64. The Full Bench proceeded to answer the aforesaid question as under: 16. The substance of the discussion made above is that a writ petition would be maintainable against the authority or the person which may be a private body, if it discharges public function/public duty, which is otherwise primary function of the State referred in the judgment of the Apex Court in the case of Ramakrishnan Mission (supra) and the issue under public law is involved. The aforesaid twin test has to be satisfied for entertaining writ petition Under Article 226 of the Constitution of India. 17. From the discussion aforesaid and in the light of the judgments referred above, a writ petition Under Article 226 of the Constitution would be maintainable against (i) the Government; (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view to preventing the possible misuse of power by the management of the Minority Educational Institutions, the State has the regulatory power to safeguard the interests of their employees and their service conditions including procedure for punishment to be imposed. (Emphasis supplied) 66. It could be argued that as the State has regulatory power to safeguard the interests of the employees serving with the minority institutions, any action or decision taken by such institution is amenable to writ jurisdiction Under Article 226 of the Constitution. 67. In the aforesaid context, we may only say that merely because the State Government has the regulatory power, the same, by itself, would not confer any such status upon the institution (school) nor put any such obligations upon it which may be enforced through issue of a Writ Under Article 226 of the Constitution. In this regard, we may refer to and rely upon the decision of this Court in the case of Federal Bank (supra). While deciding whether a private bank that is regulated by the Banking Regulation Act, 1949 discharges any public function, this Court held thus: 33.... in our view, a private company carrying on banking business as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nction must be preserved. (Emphasis supplied) 68. We may sum up our final conclusions as under: (a) 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. (b) 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 Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterference in discharge of public duty. (e) 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. 69. In view of the aforesaid discussion, we hold that the learned Single Judge of the High Court was justified in taking the view that the original writ application filed by the Respondent No. 1 herein Under Article 226 of the Constitution is not maintainable. The Appeal Court could be said to have committed an error in taking a contrary view. 70. In view of the aforesaid, this appeal succeeds and is hereby allowed. The impugned judgment and order passed by the Division Bench of the High Court in the Writ Appeal No. 485 of 2017 is set aside. The writ application accordingly stands rejected on the ground of its maintainability. It is needless to clarify that it shall be open to the Respondent No. 1 herein to take up the issue with the CBSE itself or the State or may avail any other legal remedy available to him in accordance with law. We clarify that we have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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