Calcutta High Court (Appellete Side)
Sonia Maheswari vs State Of West Bengal & Ors on 10 January, 2019
Author: Arijit Banerjee
Bench: Arijit Banerjee
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WP 18224 (W) of 2018
Sonia Maheswari
-Vs.-
State of West Bengal & Ors.
Coram : The Hon'ble Justice Arijit Banerjee
For the petitioner : Mr. Arabinda Chatterjee, Sr. Adv.
Mr. Kakali Dutta, Adv.
Mr. Arkadipta Sengupta, Adv.
For the State : Mr. Supriyo Chattopadhyay, Adv.
Ms. Iti Dutta, Adv.
For the respondent nos. : Mr. Ekramul Bari, Adv.
4&5 Ms. Anushya Banerjee, Adv.
Ms. Tanuja Basak, Adv.
For the respondent no. 6 : Mr. Shuvro Prakash Lahiri, Adv.
Heard On : 28.09.2018, 05.10.2018, 20.11.2018,
22.11.2018
CAV On : 04.12.2018
Judgment On : 10.01.2019
Arijit Banerjee, J.:
(1) The petitioner was appointed as an Assistant Teacher of the respondent school on 30 June, 1998. Her service as Assistant Teacher was made permanent in 2002. She was appointed as Assistant Headmistress of the respondent school on 28 October, 2014 by the Managing Committee of the School.
2(2) Another teacher of the said school made a complaint to the Managing Committee alleging irregularity in the appointment of the petitioner as Assistant Headmistress. The Managing Committee called for an explanation from the petitioner which was found to be dissatisfactory. The Managing Committee then issued a letter dated 1 September, 2018 which is the subject matter of challenge in this writ petition. The impugned letter reads as follows:-
"The explanation of yours, related to the allegation made by Rupali Ghosh about the procedure of the recruitment as an Asst. Headmistress and your pay structure as an AHM, is found dissatisfactory to the Managing Committee. It is verified by the M. C. that the procedure of your recruitment as AHM is totally illegal and the created scale of the AHM is found to be ridiculous and baseless.
You are therefore requested to return back the extra amount drawn by you as AHM (amounted approx. 1,50,000) within 7 days from the receipt of this letter. To know the exact amount you may contact the undersigned. If you fail to return back the said amount within stipulated date disciplinary action will be taken against you."
(3) Appearing for the respondent school, Mr. Bari, learned Counsel took a preliminary objection to the maintainability of the writ petition. Firstly, he submitted that the respondent school is a private institution run by the Managing Committee of the school. It is self-financed and does not receive any aid/grant/support from the Government. The State Government has no control, far less, deep and pervasive control 3 over the school. The appointment of teachers is done by private contract and does not require any sanction or approval of the District Inspector of Schools. The respondent school is not 'State' or 'Other Authority' within the meaning of Art. 12 of the Constitution of India. Hence, an application under Art. 226 of the Constitution of India is not maintainable against the respondent school.
(4) Secondly, Mr. Bari submitted that no 'public law' element is involved in the present writ petition. The service of the petitioner is governed by a private contract on employment. The subject matter of the writ petition is a dispute between the petitioner and the respondent school pertaining to such service contract. In the absence of public law element, no writ would lie.
(5) Mr. Bari further submitted that the fact that the respondent school is recognized by the West Bengal Board of Secondary Education does not take away the independence or autonomy of the school. The school is recognized by the Board only for the purpose of examination of the students. He further submitted that the reliance placed by Mr. Chatterjee, learned Sr. Counsel for the petitioner, on the notification dated 8 March, 2018 whereby the Rules for Management of Recognized Non-Government Institutions (Aided and Unaided), 1969 was amended, is totally misplaced. In any event, Rule 28B(b) on which reliance was 4 placed by the petitioner, merely states that it would be the duty of the Committee of a Recognized Non-Government Unaided Institution to maintain and control the service of the appointed teaching or non- teaching staff as per law or agreement made between the said committee and the concerned teaching and non-teaching staff. (6) Mr. Bari relied on several decisions. Two of such decisions are of a learned Single Judge of this court delivered in WP 1407 (W) of 2018 (Srikanta Maity-Vs.-The State of West Bengal & Ors.) and WP 14211 (W) of 2018 (Santa Kanungo-vs.-The State of West Bengal & Ors.). He also relied on the decision of the Apex Court in the case of Sushmita Basu & Ors.-vs.-Ballygunge Siksha Samity & Ors., (2006) 7 SCC 680. I will come to these decisions later.
(7) Mr. Chatterjee, Ld. Sr. Counsel appearing for the petitioner laid great emphasis on Rule 28B of the Management Rules, 1969. He submitted that these Rules have been framed in exercise of power under Sec. 45(1) of the West Bengal Board of Secondary Education Act, 1963 and as such the Rules have statutory force. According to him, the action of the Managing Committee of the school that is under challenge in this writ petition is violative of the Management Rules which have statutory force and as such the writ petition is maintainable. 5 (8) Mr. Chatterjee relied on the decision of the Apex Court in the case of Ramesh Ahluwalia-vs.-State of Punjab & Ors., (2012) 12 SCC
331. In particular, reliance was placed on paragraphs 12, 13 and 14 of the judgment which read as follows:-
"12. We have considered the submissions made by the learned counsel for the parties. In our opinion, in view of the judgment rendered by this Court in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust (supra), there can be no doubt that even a purely private body, where the State has no control over its internal affairs, would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution, for issuance of a writ of mandamus. Provided, of course, the private body is performing public functions which are normally expected to be performed by the State Authorities.
13. In the aforesaid case, this Court was also considering a situation where the services of a Lecturer had been terminated who was working in the college run by the Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust. In those circumstances, this Court has clearly observed as under:
"20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body 6 concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.
22. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute.
It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available "to reach injustice wherever it is found".
Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition."
The aforesaid observations have been repeated and reiterated in numerous judgments of this Court including the judgment in Unni Krishnan and Zee Telefilms Ltd.(supra), brought to our notice by the learned counsel for the Appellant Mr.Parikh.
14. In view of the law laid down in the aforementioned judgments of this Court, the judgment of the learned Single Judge as also the Division Bench of the High Court cannot be sustained on the proposition that the writ petition would not be maintainable merely because the respondent -
7
institution is a purely unaided private educational institution. The appellant had specifically taken the plea that the respondents perform public functions, i.e. providing education to children in their institutions throughout India."
(9) Mr. Chatterjee also relied on the decision of the Apex Court in the case of Jatya Pal Singh & Ors.-vs.-Union of India & Ors., (2013) 6 SCC 452, wherein at paragraph 48 of the judgment the Apex Court referred to the United Kingdom Human Rights Act, 1998, Sec. 1 whereof enumerates the factors which may be taken into account for determining whether a function performed by a private body is of public nature. One such factor is the role and responsibility of the State in relation to the subject matter in question. Another factor is the extent to which the State, directly or indirectly, supervises or inspects the performance of the function in question. Yet another factor is the nature and extent of any statutory power or duty in relation to the function in question. Mr. Chatterjee submitted that Rule 28B of the Management Rules is a statutory Rule and indisputably the respondent school is performing a function of a public nature by imparting education to the students.
(10) Mr. Chatterjee then relied on the Apex Court decision in the case of K. K. Suksena-vs.-International Commission on Irrigation and Drainage & Ors., (2015) 4 SCC 670. In the said decision the Apex Court observed that the power of the High Court under Art. 226 of the 8 Constitution of India is not limited to issuing writs to 'State' or 'Other Authority' which qualifies as State under Art. 12. The power is much wider and includes the power to issue directions, orders or writs to any person or authority. The power of issuing writs or directions is not limited to enforcement of fundamental rights conferred by Part III of the Constitution but also for any other purpose.
(11) Mr. Chatterjee also relied on a Division Bench decision of this Court in the case of Governing Body, Durgapur Institute of Advance Technology And Management-vs.-Subhangshuman De, (2015) 4 CHN 671, in support of his submission that educational institutions perform functions of a public nature by providing education to students and hence the issuance of a writ cannot be withheld merely because the respondent school is a purely unaided private educational institution. (12) Mr. Chatterjee also referred to a Division Bench decision of this Court delivered in MAT 1935 of 2015 (Secretary, Managing Committee, Maharishi Vidya Mandir-vs.-Miss Viswadhara Nag & Ors.). As I read the decision, the same helps the respondent school rather than the writ petitioner for the reasons I will indicate later. (13) Both the learned Counsel were ad idem that the preliminary point of maintainability of the writ petition should be decided first, 9 accordingly, I have not heard the learned Counsel on the merits of the petitioner's claim.
(14) I have considered the rival contentions of the parties. (15) Two questions arise for determination. Firstly, whether the respondent school is an authority within the meaning of Art. 226 of the Constitution of India. Secondly, even if the answer to the first question is in the affirmative, whether a private right arising out of a contract can be enforced by issuance of a writ.
(16) In the decisions of the Apex Court starting with that in the case of Ajay Hasia-vs-Khalid Mujib Sehravardi & Ors., AIR 1981 SC 487 and ending with that in the seven judges' decision in the case of Pradeep Kumar Biswas-vs.-Indian Institute of Chemical Biology & Ors., (2002) 5 SCC 111 what fell for consideration by the Apex court is what parameters are to be applied for deciding whether or not an entity is 'State' or 'other Authority' within the meaning of Art. 12 of the Constitution. I refrain from discussing such parameters since we are presently concerned with the question as to whether or not the respondent school which is admittedly a private unaided school can be treated to be an authority under Art. 226 of the Constitution of India. 10 (17) In Federal Bank Ltd.-vs.-Sagar Thomas & Ors., (2003) 10 SCC 733, the Apex Court concluded that a writ petition under Art. 226 of the Constitution of India may be maintainable against (i) The State (government); (ii) An Authority; (iii) a statutory body; (iv) an instrument or agency of the State; (v) a company which is financed and owned by the Government; (vi) a private body run substantially on State finance; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function.
(18) In Union of India & Anr.-vs.-S. B. Vohra & Ors., (2004) 1 SCALE 131, a three Judges bench of the Apex Court observed that the legal right of an individual may be founded upon a contract or a statute or an instrument having the force of law. For a public law remedy enforceable under Art. 226 of the Constitution, the action of the authority needs to fall in the realm of public law, be it legislative act of the State, an executive act of the State or an instrumentality or a person or authority imbued with public law element. The question is required to be determined in each case having the aforesaid principle in mind.
11(19) In Dr. Amar Chandra Saha-vs.-The President, Calcutta Society For Prevention of Cruelty to Animals & Ors., 96 CWN 1086, a transfer order issued by the Society concerning the petitioner/appellant was under challenge. The Ld. Single Judge held the writ petition to be maintainable but dismissed the same on merits. Both the writ petitioner and the Society preferred appeals. The Hon'ble Division Bench held that the form of body is not important and what is important is the nature of duty imposed on the body. The duties of the Society were mainly and primarily to prevent cruelty to animals. It may be a public duty in essence. But that would not invariably lead to the conclusion that a body performing certain duties pursuant to certain statute or performing certain duties with certain public fund (Government fund) is an authority under Art. 226 of the Constitution and as such amenable to writ jurisdiction. The duty as stated by the Apex Court in Andi Mukta's case (AIR 1989 SC 1607) is a duty in the nature of some positive obligation and as such a Society performing such duty may be amenable to writ. The Division Bench went on to hold that the dispute in that writ petition related to service matter and such service obligations arose from a private contract not having any statutory trappings and the impugned order of transfer had not been made in contravention of any statutory provision or any duty 12 imposed by the statute. The condition of service of the petitioner/appellant was not governed or controlled by any statutory provision. Hence, the impugned action was not in the nature of public character. The rights contemplated under the Constitution are public law remedies and they are not available for enforcing private law rights.
(20) In Union of India & Ors.-vs.-M/s. Binani Consultants (P) Ltd. & Ors., AIR 1995 CAL 234, a Division Bench of this Court observed as follows:-
"............In the field of contractual obligation between the parties, it is not the law that a Writ Court can intervene in each and every case. A Public Body may have a power to take decision which will in some way affect or vary existing private law right of an individual. An individual may challenge such a decision by judicial review, if the source of power is statutory indicating that the matter has a sufficiently public element to render it susceptible to judicial review. If it is a case of a private law right the individual has to proceed by an ordinary action. The Court had drawn a distinction derived from contract which is a class as 'private law rights' and rights derived from public law. By 'public law right' the Court generally means the ability to invoke the supervisory jurisdiction of the Court to ensure the public authorities to perform their statutory duties and properly exercise their statutory powers. The statute may expressely or impliedly impose restriction on the exercise of contractual power by a Public Body. Judicial review will be available to determine whether contract violates such statutory restriction or there has been breach of contract in violation of the statutory 13 restriction. The Court would be performing the public law supervisory role of ensuring compliance with statutory limitation on the powers of public authorities and would not be dealing with private law issue of what the terms of the contract were or whether they had been broken."
(21) In Ram Saran Shastry-vs.-State of West Bengal & Ors., (1995) 1 CHN 419, the facts were very similar to the facts of the present case. The learned Judge referred to a decision of this Court in Arjed Ali-vs.- State of West Bengal, (1991) 1 CLT 211 wherein it was held that if the service conditions of an employee of a cooperative society is not governed by a statute, a writ will not lie. It was held that even in relation to "State", the Court cannot exercise its jurisdiction under Art. 226 of the Constitution unless any public law element is involved in the matter. The learned Judge referred to the decision of the Apex Court in the case of Tikaram-vs.-Mundikota Shikshan Prasaran Mandal & Ors., AIR 1984 SC 1621 and held that where the right is of a non- statutory character, a writ petition will not lie against the management.
(22) From a conjoint reading of the aforesaid decisions and the decision of the Apex Court in the case of Ramesh Ahluwalia (supra), what emerges is that an expansive meaning has to be given to the word 'Authority' as used in Art. 226 of the Constitution of India. A private body may also be treated as an authority within the meaning of Art. 14 226 of the Constitution if it discharges function of a public nature, whether under statutory mandate or otherwise. However, would that mean that every action or inaction of such a private body would be amenable to the writ jurisdiction of the High Court? The answer, in my opinion, must be in the negative. All actions of such a private body do not have public implications. In Srikanta Maity-vs.-The State of West Bengal (supra), a learned Single Judge of this Court, after discussing several decisions of the Apex Court, came to the conclusion that in matters of service conditions between the employee and the employer, where the employer is a private institution, the remedy lies in private law. A writ petition is not maintainable in such cases. The same learned Judge in the case of Santa Kanungo-vs.-The State of West Bengal & Ors. (supra) came to the conclusion that the petitioner in that case could not seek to enforce her right to the promoted post by application of public law. The learned Judge discussed the Apex Court's decision in Ramesh Alhuwalia (supra) and came to the conclusion that what was laid down in the case was that the proposition that a writ petition would not be maintainable merely because the respondent institution is purely an unaided private educational institution, is not a correct legal proposition. 15 (23) Learned Counsel for the petitioners relied on a Division Bench judgment of this Court in the case of Governing Body, Durgapur Institute of Advance Technology And Management (supra). This decision was entirely based on the decision of Ramesh Alhuwalia (supra), which was to the effect that merely because the respondent is an unaided private institution, it cannot be said that it is not amenable to the writ jurisdiction of the High Court under Art. 226 of the Constitution. However, the Division Bench decisions of this Court and the decisions of the Apex Court discussed above, are to the effect that even if an entity can be said to be an 'authority' within the meaning of Art. 226 of the Constitution and, therefore, in principle a writ petition is maintainable against it, no writ would be issued for enforcing a private right arising out of a contract which has no statutory flavour. (24) In so far as the decision of our Division Bench in MAT 1935 of 2015 (Secretary, Managing Committee, Maharishi Vidya Mandir-vs.- Miss Viswadhara Nag & Ors.) is concerned, the question that fell for consideration before the Division Bench was whether a writ petition would be maintainable at the instance of a teacher who is aggrieved by the action of an unaided listed school failing to abide by and/or follow the provisions of the Code of Regulation for Anglo-Indian and Other Listed Schools, 1993. At paragraph 26 of the judgment the Division 16 Bench observed that 'the aspect of the institution not receiving any aid from the Government and being a private school, would definitely weigh in our thought process'. Finally, the Division Bench held that the writ petition was not maintainable. Thus, this decision, apart from being on a slightly different point, if at all, helps the respondent school in the present case and not the petitioner.
(25) Mr. Chatterjee, learned Sr. Counsel, has also relied on an Apex Court decision in the case of K. K. Suksena (supra), as I have recorded above. It was held by the Apex Court that if a person or authority is 'State' within the meaning of Art. 12 of the Constitution, a writ petition under Art. 226 of the Constitution would lie against such person or body. However, the Apex Court added that even in such cases writ would not lie to enforce private law rights (emphasis is mine). Private law is that part of a legal system which is part of common law that involves relationships between individuals, such as law of contract or torts. Hence, even if a writ petition is maintainable against an authority, which is 'State' under Art. 12 of the Constitution, before issuing any writ, the court has to satisfy itself that the impugned action of such authority is in the domain of public law as distinguished from private law.
17(26) I cannot accept the submission of Mr. Chatterjee that R. 28B of the Management Rules, 1969 gives the contract of employment between the petitioner and the respondent school a statutory flavour. It merely requires the committee of a recognized non-Government unaided institution to maintain and control the service of the staff of the institution as per law or agreement made between the committee and the concerned staff.
(27) It is not that R. 28B is the source of power of the respondent institution to appoint teachers. In any event, R. 28B was incorporated in the 1969 Rules by way of amendment on 8 March, 2018. The appointment of the petitioner as Assistant Headmistress was on 28 October, 2014. Hence, in so far as the contract of employment between the petitioner and the respondent institution is concerned, R. 28B would be of no relevance.
(28) The grievance of the petitioner is that the respondent institute is wrongfully demanding refund of salary allegedly paid in excess since the appointment of the petitioner as Assistant Headmistress was allegedly not as per extant Rules and was irregular. This grievance pertains to the service condition of the petitioner and is in the domain of private law. It is not that the petitioner is bereft of a remedy. An ordinary civil action is available to her. I am of the considered opinion 18 that in view of the several judgments discussed above, a writ should not be issued to enforce a private law right.
(29) In view of the aforesaid, the preliminary point raised by Mr. Bari, Learned Advocate, succeeds to the extent that even assuming that the respondent institute is in principle amenable to the writ jurisdiction of this Court giving a liberal construction to the word 'Authority' in Art. 226 of the Constitution, no public law element is involved and no public law right of the petitioner is infringed. Hence, no writ should be issued. The writ petition fails and is dismissed without, however, any order as to costs.
(30) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
(Arijit Banerjee)