Allahabad High Court
Ram Niwas Sharma vs Union Of India And 5 Ors. on 17 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 2741
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 81 Case :- WRIT - A No. - 23939 of 2013 Petitioner :- Ram Niwas Sharma Respondent :- Union Of India And 5 Ors. Counsel for Petitioner :- Arun Kumar Gupta,A.G.Gupta,Om Prakash Yadav,Sarita Singh Counsel for Respondent :- A.S.G.I.,A.Kumar,H.N.Pandey,Rachna Dubey,S.C.,Vivek Ratan Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner, Sri Abhishek Kumar for the respondent No. 4, Sri H.N. Pandey for the Board and Sri Vivek Ratan Agrawal, learned counsel appearing for NTPC.
The respondents have raised a preliminary objection to the maintainability of the writ petition by contending that the same would not be maintainable since the petitioner assails an order of termination made by the D.A.V. Public School. It is submitted that notwithstanding the fact that the school may be said to be performing a public function or discharging a public duty since the terms and conditions of service of the petitioner are not governed by any statutory rule or regulation, a writ petition consequently would not lie. Reliance is placed principally on the Full Bench decision of the Court in M.K. Gandhi and Others Vs. Director of Education (Secondary), U.P., Lucknow and Others1. The attention of the Court is then drawn to a recent decision rendered by another Full Bench in Roychan Abraham Vs. State of U.P. and Others2 in support of the objection that is raised. Counsel for the C.B.S.E. submits that the terms and conditions of service of the petitioner are governed by the byelaws framed by the Board which are not statutory and in light of the decision in M.K. Gandhi, the writ petition would not lie.
Learned counsel for the petitioner however submits that the D.A.V. Public School is funded and aided by N.T.P.C. which is a Government Corporation and State within the meaning of Article 12 of the Constitution. He submits that N.T.P.C. has set up and established schools in order to provide educational avenues to the wards of its employees and those of the C.I.S.F. personnel employed in its establishment. He submits that in light of the financial and administrative aid which is provided, it must be held to be performing a public function and consequently a writ petition would be maintainable. Apart from relying upon the ultimate conclusions recorded by the Full Bench in Roychan Abraham, learned counsel also places reliance upon the decision rendered by the Supreme Court in Ramesh Ahluwalia Vs. State of Punjab And Others3 to submit that the aforesaid decision would clearly merit the objection as raised being negatived.
In order to evaluate the rival submissions, it would be apposite to firstly consider the judgment in M.K. Gandhi. The Full Bench framed 8 points for determination. Insofar as the controversy that falls for our consideration is concerned, it would be pertinent to note the following issues alone which were framed:-
"...
(i) Whether the DPS School is a State within the meaning of Article 12 of the Constitution;
(ii) Whether the Board is a State within the meaning of Article 12 of the Constitution of India;
(iii) Whether the 'Affiliation bye-laws' have statutory force;
........
(vi) Whether a writ petition is maintainable against a privately managed school for violation of the Service Rules.
(vii) Whether a writ petition is maintainable against the Board for non-observance of its bye-laws;
......"
The Full Bench firstly held that C.B.S.E. is State within the meaning of Article 12 of the Constitution. It further proceeded to hold that the affiliation byelaws, of which service conditions form a part, do not have statutory force. This conclusion was recorded by the Full Bench in the following terms:
"31. There is nothing in the constitution of the Board to suggest that the affiliation bye-laws have statutory force. The service conditions are in the bye-laws. They are adopted between the parties through the agreement and are binding as a contract. Neither the bye-laws nor the agreement are statutory. If there is any breach of the service conditions then it is the breach of the contract and the parties may file suit or the Board may impose penalty prescribed under the bye-laws but this does not mean that the bye-laws or the agreement have statutory force."
Proceeding further the Full Bench held that the private school is not State within the meaning of Article 12 and that the affiliation byelaws being non-statutory only represent a contract between parties. In paragraph 37 of the report it observed:
"37. The Committee of Management of the DPS School is recognised by the Board but it is neither a statutory body nor a State with the meaning of Article 12. The legal obligation or duty on the DPS. School is neither imposed by any statute nor by any statutory provision; it has been imposed by the affiliation bye-laws and agreement which is a contract between the parties and non-statutory. In view of this the writ petition is not maintainable against the DPS School for violation of the affiliation bye-laws."
The Full Bench then proceeded to record its conclusions in paragraph 76, which read thus:
"76. Our conclusions are as follows :
(a) The DPS School is not the State within the meaning of Article 12 of the Constitution;
(b) The Central Board of Secondary Education, (the Board) is the State within the meaning of Article 12 of the Constitution;
(c) In case service conditions have not been framed, then
- Chapter VII of the affiliation bye-law relating to service condition shall be deemed to have been adopted by the school; and
- The agreement between the parties-unless any other format is prescribed by the State/UT Act-shall be deemed to be in the same format as Appendix-III to the affiliation bye-laws.
(d) The Service Rules and the agreement-whether framed by a school and agreed between the parties by an agreement or deemed to be adopted by them and agreement to be in the same format as Appendix-Ill of the affiliation bye-laws as held in this case-are merely private contract between the schools and the teachers. They do not have statutory force. The writ petition is not maintainable against the school to enforce them;
(e) In case any school does not follow the Service Rules framed by it or the bye-laws deemed to be adopted as held in this case then the school has to pay penalty for violating the same namely withdrawal of its affiliation;
(f) The Board is bound to follow its bye-laws and in case of any violation it has to take action under its bye-laws to disaffiliate the school. A writ petition is maintainable against the Board in case it fails to perform its duty; and
(g) In the present case, there has been violation of the bye-laws-deemed to be adopted as service conditions-by the DPS School. The Board has failed to perform its duty by not taking any action on the complaint filed by the petitioners. The Board should take action under the affiliation bye-laws against the DPS School."
It then framed directions commanding the Board to call upon the school to show cause why it not be disaffiliated for terminating the services of the petitioners contrary to the byelaws. The decision in M.K. Gandhi was assailed by the Committee of Management of the school before the Supreme Court. While dealing with that appeal, the Supreme Court in Committee of Management, Delhi Public School And Another Vs. M.K. Gandhi And Others4 held thus:
"4. With great respect to the Full Bench of the High Court, we fail to understand the direction given by the Allahabad High Court. In our opinion, the direction given by the Allahabad High Court to the CBSE is totally misconceived and uncalled for. When the Allahabad High Court has already held that the DPS School is not a "State" within the meaning of Article 12 of the Constitution of India and the writ petition is not maintainable, there was no necessity for giving a direction to the CBSE which virtually amounts to granting a declaration in favour of those teachers whose services have been terminated. We fail to appreciate the view taken by the Allahabad High Court by unnecessarily complicating the issue by involving the CBSE in a private dispute between the teachers and DPS. The Allahabad High Court should have stopped short of holding that the said DPS is a private body and the writ is not maintainable.
5. Hence, we are of the view 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 and no direction could have been given by the High Court to CBSE for interfering with the termination of the teachers. The proper remedy for the teachers was to file a civil suit for damages, if there was any.
6. Subsequently, we allow this appeal and set aside the order passed by the Allahabad High Court to the extent of giving a direction to the Board. There will be no order as to costs."
As is manifest from a reading of that decision, the Supreme Court allowed the appeal and set aside the judgment of the Full Bench only to the extent that it had proceeded to frame directions commanding the Board to take further action of disaffiliation. It also observed that once the High Court had come to conclude that the writ petition against the school itself was not maintainable, it should have stopped there and left it open to the aggrieved teachers to institute a suit for damages.
Learned counsel for the petitioner has however sought to draw sustenance from the decision rendered in Ramesh Ahluwalia. In Ramesh Ahluwalia, the Supreme Court in paragraph 12 observed thus:
"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 Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani [(1989) 2 SCC 691], 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."
It went on further to observe as under:
"14.In view of the law laid down in the aforementioned judgments of this Court, the judgment of the learned Single Judge Ramesh Ahluwalia v State of Punjab as also the Division Bench Ramesh Ahluwalia v State of Punjab [LPA No. 368 of 2010] of the High Court cannot be sustained on the proposition that the writ petition would not be maintainable merely because the respondent - 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."
It becomes pertinent to notice that the Supreme Court principally held that even a purely private body over whose internal affairs the State may wield no control would still be amenable to the jurisdiction of the High Court under Article 226 of the Constitution provided it is established that it performs a public function. The conclusions as recorded in paragraph of the report also must necessarily be read bearing in mind that the same came to be entered in the context of "...issuance of a writ of mandamus".
It was the decision rendered in Ramesh Ahluwalia, which led to a learned Judge doubting the correctness of the decision rendered in M.K. Gandhi and the subsequent reference. That reference ultimately came to be placed before another Full Bench which rendered decision in Roychan Abraham. In Roychan Abraham the Full Bench after exhaustively noticing the body of precedent that has come to exist on the question of public function and public duty as well as the scope of Article 226 of the Constitution framed its conclusions as follows:
"Conclusion:
63. We accordingly proceed to answer the reference in the following terms:
64. Question (i): Private Institutions imparting education to students from the age of six years onwards, including higher education, perform public duty primarily a State function, therefore are amenable to judicial review of the High Court under Article 226 of the Constitution of India.
65. Question (ii): The broad principle of law which has been formulated in the judgement of the Full Bench in M.K. Gandhi and Division Bench in Anjani Kr. Srivastava is confined to the facts obtaining therein and is not an authority on the proposition of law that private educational institutions do not render public function and, therefore, are not amenable to judicial review of the High Court. The judgements do not require to be revisited.
66. 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."
Significantly, however, the decision in M.K. Gandhi was not overturned and the Full Bench only observed that it was not liable to be read as an authority for the proposition that private educational institutions do not render public functions or are otherwise not amenable to judicial review. This Court bound by the principles so enunciated by the Full Bench deems it appropriate to only state that it would be wholly incorrect to assume that educational institutions do not render public functions or perform public duties. Those institutions as observed in Roychan Abraham act as adjuncts of the State in the context of the constitutional obligation of providing avenues of education. The question, which however merits consideration, would be whether employees of such educational institutions can assail disciplinary actions taken or petition the High Court under Article 226 of the Constitution in respect of matters relating to their service conditions where the terms and conditions of service are not governed or controlled by statutory provisions. This aspect was considered in Roychan Abraham where the Full Bench observed thus:
"38. Even if it be assumed that an educational institution is imparting public duty, the act complained of must have direct nexus with the discharge of public duly. It is undisputedly a public law action which confers a right upon the aggrieved to invoke 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 petition under Article 226. Wherever Courts have intervened in exercise of jurisdiction under Article 226, either the service conditions were regulated by 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.
39. We accordingly hold that 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."
Roychan Abraham clearly holds that it is only a "public law action" which confers a right upon an aggrieved person to invoke the jurisdiction under Article 226 of the Constitution. It also notes that wherever the Courts have in fact intervened and invoked their powers conferred by Article 226, it was only in situations where service conditions were regulated either by statutory provisions or where the employer had the status of State.
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 this Courts powers conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by 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, 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.
This distinction which must necessarily be borne in mind has been eloquently explained by the Supreme Court in a decision rendered just a few days after Roychan Abraham in Ramkrishna Mission and Another Vs. Kago Kunya and Others5. After noticing the earlier decisions rendered on the subject, the Supreme Court held thus:
"35. Thus, even if the body discharges a public function in a wider sense, there is no public law element involved in the enforcement of a private contract of service.
36. Having analysed the circumstances which were relied upon by the State of Arunachal Pradesh, we are of the view that in running the hospital, Ramakrishna Mission does not discharge a public function. Undoubtedly, the hospital is in receipt of some element of grant. The grants which are received by the hospital cover only a part of the expenditure. The terms of the grant do not indicate any form of governmental control in the management or day to day functioning of the hospital. The nature of the work which is rendered by Ramakrishna Mission, in general, including in relation to its activities concerning the hospital in question is purely voluntary.
38. It has been submitted before us that the hospital is subject to regulation by the Clinical Establishments (Registration and Regulation) Act 2010. Does the regulation of hospitals and nursing homes by law render the hospital a statutory body? Private individuals and organizations are subject to diverse obligations under the law. The law is a ubiquitous phenomenon. From the registration of birth to the reporting of death, law imposes obligations on diverse aspects of individual lives. From incorporation to dissolution, business has to act in compliance with law. But that does not make every entity or activity an authority under Article 226 Regulation by a statute does not constitute the hospital as a body which is constituted under the statute. Individuals and organisations are subject to statutory requirements in a whole host of activities today. That by itself cannot be conclusive of whether such an individual or organisation discharges a public function. In Federal Bank (supra), while deciding whether a private bank that is regulated by the Banking Regulation Act, 1949 discharges any public function, the court held thus:
"33. ...in our view, a private company carrying on banking business as a scheduled bank, cannot be termed as an institution or a company carrying on any statutory or public duty. A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. We don't find such conditions are fulfilled in respect of a private company carrying on a commercial activity of banking. Merely regulatory provisions to ensure such activity carried on by private bodies work within a discipline, do not confer any such status upon the company nor put any such obligation upon it which may be enforced through issue of a writ under Article 226 of the Constitution. Present is a case of disciplinary action being taken against its employee by the appellant Bank. The respondent's service with the Bank stands terminated. The action of the Bank was challenged by the respondent by filing a writ petition under Article 226 of the Constitution of India. The respondent is not trying to enforce any statutory duty on the part of the Bank..."
(emphasis supplied)
39. Thus, contracts of a purely private nature would not be subject to writ jurisdiction merely by reason of the fact that they are structured by statutory provisions. The only exception to this principle arises in a situation where the contract of service is governed or regulated by a statutory provision. Hence, for instance, in K K Saksena (supra) this Court held that when an employee is a workman governed by the Industrial Disputes Act, 1947, it constitutes an exception to the general principle that a contract of personal service is not capable of being specifically enforced or performed.
...
41. For the above reasons, we are of the view that the Division Bench of the High Court was not justified in coming to the conclusion that the appellants are amenable to the writ jurisdiction under Article 226 of the Constitution as an authority within the meaning of the Article."
As has been lucidly explained, contracts of a purely private nature even though entered by bodies which may perform a public function would not be subject to judicial review. The only exception would be where such contracts are governed or regulated by statute. In the present case it is the undisputed position that the byelaws and the service conditions which apply are non statutory. They are deprived of any statutory ordainment. Such a contract, as noted above, would remain a pure private contract of service. In that view of the matter the writ petition challenging the termination of such a contract would not be maintainable.
The preliminary objection is thus upheld and the petition is consequently dismissed.
Order Date: - 17.2.2020 Arun K. Singh (Yashwant Varma, J.)