A private unaided education institution, discharging a public duty is amenable to writ jurisdiction under Article 226 of the Constitution.

In the matter of Bineeta Patnaik Padhi Vs. Union of India & Ors. (W.P.A 5544 of 2021) as decided by the Hon’ble Calcutta High Court on 01.06.2021.

Facts of the Case-

In the present matter, the Petitioner an educationist was terminated from her post of Principal of Army Public School, which was challenged by way of a writ petition. Aggrieved by the said termination, she filed the present writ petition which was resisted by the Respondents, primarily on the ground that the gamut of Army Public Schools in India are funded from Army Welfare Fund which is a private fund and not a recipient of Union or State Government, therefore, the said school cannot be considered to be a ‘State’ as defined u/A 12. The jurisdiction under Article 226 could only be exercised by a constitutional court, only if there is an element of public law involved.
The Petitioner relied on Marwari Balika Vidyalaya Vs. Asha Srivastava; (2020) 14 SCC 449 in which the Apex Court while examining the issue of termination of an Assistant Teacher in a private unaided institution, had held that a writ petition is indeed maintainable in such cases even as against the private unaided educational institutions. Roychan Abraham Vs. State of U.P; AIR 2019 All 96, was also cited to submit that private institutions imparting education to students from the age of six years and onwards, including higher education perform a public duty.

Issue raised before the Court-

Whether an unaided private school which is managed by AWES, a society registered under the Societies Registration Act, 1860, would be amenable to the writ jurisdiction under Article 226 of Constitution of India?

Observations of the Court-

The Hon’ble Court observed that merely registering a body under the Societies Registration Act, 1860 does not ensure that such body is beyond the pervasive edict of Article 12. The Court noted that the Apex Court in the matter of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust Vs. V.R. Rudani; (1989) 2 SCC 691 had very clearly stated that ‘a writ of mandamus could lie to any person or authority performing a public duty and owing a positive obligation to the affected party, wherein such a duty need not be imposed by statute’.
The Court also laid down the major principles which emerged from the rulings of Hon’ble Supreme Court in V.R. Rudani (supra) and Binny Ltd. Vs. V. Sadasivan; (2005) 6 SCC-
a. A writ of mandamus can be issued to a private body/authority under Article 226 of the Constitution of India.
b. Such a writ can only be issued to such a private body/authority if such an authority is discharging a ‘public function’ and the decision sought to be corrected or enforced must be in discharging a public function.
c. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought.
d. 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
e. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced.
Relying on the definition of “school” u/s 2(n) of the RTE Act, 2009, which inter alia includes ‘an unaided school not receiving any kind of aid or grant from the appropriate Government or local authority’, the Hon’ble Court held that by virtue of the said section, the said unaided school had come to discharge a public duty as was cast upon it by RTE Act. The Court therefore held that “in spite of being a private unaided educational institution, since it has been discharging a public duty under the prescriptions of a statute and subsidiary rules made under it, that is, the RTE Act, the said school is amenable to the Court’s writ jurisdiction under Article 226 of the Constitution of India.”