Jharkhand High Court
Surendra Jha vs The State Of Jharkhand And Ors. on 5 August, 2006
Equivalent citations: [2006(4)JCR330(JHR)], 2006 (3) AIR JHAR R 449, (2006) 4 JLJR 491 (2006) 4 JCR 330 (JHA), (2006) 4 JCR 330 (JHA)
Author: Permod Kohli
Bench: Permod Kohli
JUDGMENT Permod Kohli, J.
1. Quashment of the Communication dated January, 6, 2003, issued by the Secretary, Managing Committee of St. Xaviers School, Doranda, Ranchi conveying the decision of the Managing Committee to retain the retirement age of teachers at 58 years is sought, in this writ application. Further daections are sought to prohibit the implementation of the decision of retirement at the age of 58 years and also to fix the retirement age of the petitioner and employees of the St. Xaviers School at 60 years in tune with the prevailing law for the Government servants in the State of Jharkhand.
2. Petitioner is a teacher in the St. Xaviers School, Doranda, The School is being managed and run by the Society through its Governing body. It is in unaided private school affiliated with the Council for the Indian School Certificate Examinations (I.C.S.E.). The School is also a member of All Bihar Christian School Association (in short 'ALBICSA'). It is averred in the writ petition that service conditions of the Teachers and other staff of the School are governed and regulated by a tripartite agreement entered into between the Governing body, Teachers and Representatives of the School on 02nd of December, 1998. It is alleged that the agreement contains stipulations for amendment of the service conditions in accordance with the law framed for the Government employees. According to the petitioner, an amendment to the bye-laws of the School was introduced by the Governing body in April, 2002 but the same has not been given effect to in line with the bye-laws in vogue in schools under ALBICSA, This is despite an assurance extended by the Management of the School to the teachers by letter dated 01st of December, 2001 (Annexure-4). Petitioners have also stated that regulations of Council for the Indian School Certificate Examinations to which the School is affiliated imposed an obligation upon the Governing body/Management of the School to adopt same conditions of employment as are applicable to the Government employees. It is further stated that Bihar Government enhanced the age of retirement of Teachers, who were due to retire on 31st October, 1999 or thereafter from 58 years to 60 years. This decision of the Government was notified by memo No. 2412 dated 29th of October, 1990 issued by the Finance Department of the State of Bihar. It is further mentioned that even the State of Jharkhand has adopted the decision vide Circular No. 1055 dated 05th of September, 2001. It is alleged that the decision of the Management to retain the age of the Teachers of the School at 58 years is contrary to the Tripartite Agreement dated 02nd of December, 1998, the bye-laws of ALBICSA of which the School is a member as also the regulations/norms of the I.C.S.E., the affiliating body. Petitioner claims to have made some representations alongwith other teachers of the School. Petitioner has, accordingly, sought various reliefs noticed in the preceding paras by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. The Management of the School represented by Respondent Nos. 4, 5 and 6 has filed disclaimer to the writ petition. During the pendency of this writ application, some of the employees of the School including teaching and non-teaching staff filed IA No 1574 of 2006 seeking intervention on the ground that they are also entitled to the relief as claimed by the writ petitioner and any order passed by this Court is likely to affect their rights. These applicants had also approached the Tribunal, namely, Jharkhand Educational Tribunal seeking relief for enhancement of age and other prayers made therein. However, the Tribunal has refused to intervene by its order dated 19th of May, 2006 on the ground that similar issue is pending before the Jharkhand High Court. This LA. was allowed on consideration by this Court vide order dated 4th of July, 2006 and interveners were heard in the writ petition.
3. In the disclaimer filed, Respondent Nos. 4 to 6 staled that the St. Xaviers School is a religious minority institution and does not receive any grant-in-aid from the State Government. The School is run by a registered society with its Registration No. 13/60-61. The society has its own Bye-laws and the Management of the Society vests with its Governing body. It us stated that the managing Committee of the School in its meeting held on 13th of January, 2000 decided to keep the age of retirement of teaching and non-teaching staff of the School at 58 years and, accordingly, petitioner was intimated vide the impugned letter dated 06th of January, 2003 regarding the retirement age This was followed by a letter dated 18th of January, 2003 communicating the petitioner that he would retire from service on 31st January, 2003 According to the Respondents under the Tripartite Agreement entered into between the Governing body, the Management and the Teacher's representatives, the retirement age was fixed at 58 years, which is applicable uniformly to all the employees Affiliation of the School to I.C.S.E. us also admitted. It is further stated that apart from the Tripartite Agreement, every Teacher of the School enters into a separate contract with the Management and in all these agreements/contracts, the age of retirement is mentioned as 58 years. Regarding its membership of the ALBICSA, it is stated that though the School is a member of ALBICSA, however, service conditions adopted by the ALBICSA are applicable only to such minority Schools, which are recognized and financed by the State Government and are covered by the provisions of Section 18 of the Bihar Non-Government Secondary School Taking Over Act, 1981. It is further stated that even under ALBICSA Bye-laws, the age ot retirement is fixed at 58 years It is however accepted that under Clause 105 of these Bye-laws it is provided that the age of the relirement of Teachers shall be same as under the rules for the State Government Schools amended from lime to time. However it is mentioned that age of retirement in Government Schools being 58 years, there is no merit in the writ petition.
4. Though no specific plea has been raised by the Respondents, regarding the maintainability of the petition, under Article 226 of the Constitution of India, however keeping in view the factual averment made in the reply that the School is run by a registered society and is an unaided private School, both the parties were heard on the question of maintainability of the writ petition and the right of the petitioner/interveners to invoke jurisdiction of this Count under Article 226 of the Constitution of India.
5. I have heard the learned Counsel appearing for the petitioner, contesting Respondent Nos. 4 to 6 and Mr. Indrajit Sinha, learned Counsel appearing for the Interveners.
6. First question to be answered by this Court is whether petitioners have any right to invoke writ jurisdiction of this Court under Article 226 for redressal of their grievances in respect to their age of retirement in the background of the circumstances, noticed hereinabove.
7. With a view to support their contention, petitioners/interveners have placed reliance on guidelines of Indian Council for School Certificate Examination. These guidelines were adopted by the Council in its 51st meeting held on 15th of November, 1996 and updated vide a resolution adopted in the meeting held on 26th April, 1996. These guidelines are to be observed as conditions ot affiliation to the Council for its examination. The relevant extracts of Clause 5 of the Guidelines relating to Teaching staff are given herein below:
Teaching Staff
5. (a) The teaching staff must be properly qualified and trained. The Council has laid down the minimum qualifications for the teaching staff (see Chapter 11); if, however, the state Department of Education has prescribed other minimum qualifications the Council will take them into consideration in deciding the affiliation of the School.
(b) The conditions of service, salaries, allowances and other benefits of the staff, must be comparable to that prescribed by the State Department of education.
8. Petitioner have also relied upon the Rules of ALBICSA to which the Respondent-School is also a member. It is stated that under the constitution of ALBICSA laying down service conditions, the age of the staff of the Schools under the ALBICSA shall be as per the decision of the State Government and as and when the State Government changes its policy regarding age, the ALBICSA will also bring in amendment, accordingly. For this, reference is made to Clause 105 of the Constitution of ALBICSA.
9. According to petitioners, ALBICSA has raised the age of Teaching staff of all the member Schools from 58 to 60 years at par with the age of the Government employees particularly the Government teachers. It is also the admitted case of the parties that the teachers have entered into a written contract with the School and one of the conditions in the Contract is to amend the mutual terms from time to time. Communication dated 01st December, 2001 of the Secretary of the Management Committee of St Xaviers Schools to the teachers is reproduced herein below:
Dear Teachers, Rev. Fr. Provincial, the President of the Governing Body, has given the permission to make suitable amendment to our By-laws As the present By-laws are not comprehensive enough-though they arc all quite "reasonable"- the Governing Body will elaborate them on the basis of the ALBICSA By-Laws, which are recognized by Government and in use in very many Minority Schools.
Secretary, Managing Committee, St. Xav. Sch., Doranda
10. Intervenes have also placed on record a copy of the letter dated 17th of February, 2006 from the Secretary of the Governing Body of the Schools to the Teachers conveying them that regarding the increase in retirement age from 58 years to 60 years, governing body would wart for the Court's verdict on the matter since the matter is subjudice.
11. It is urged as I.C.S.E. guidelines are conditions of affiliation, the School is bound to observe the same and consequently the Age of retirement of the teaching and non-teaching staff of the Schools should be enhanced from 58 years to 60 years in tune with the age prescribed for the Government employees. Further attention of the Court is drawn to averments made in Para 14 (5) (b) of the counter affidavit, whereunder respondents have reproduced the guidelines of the I.C.S.E. in respect to the conditions of service, salaries, allowances and other benefits for the staff to be comparable to that prescribed by the State Department of Education.
12. On the other hand, Mr, P.K. Prasad, learned Counsel appearing for the Respondent Nos 4 to 6 has submitted that thc School being run by the unaided society has its own bye-laws. The age of the employees of the society is governed by the bye-laws of the society and the contract of service entered into by each employee with the governing body/Management. He has referred to the bye-laws of the society, whereunder retirement age of the employees of the society is fixed at 58 year, relevant bye-law reads as under:
Gratuity is payable to an employee:
- on retirement, after having completed his/her 58th year of age.
13. Further reference is made to Clause 3 of the Contract Agreement, which require the teachers to confirm to all rules and regulations of the School Clause 3 of the Contract reads as under:
3. -That the said teacher shall conform to all the rules and regulations in force in the said school inclusive of the terms of this agreement and shall obey all such orders and directions as issued by the Principal or school authority from time to time and any breach or nan compliance of which shall be deemed to be a breach of this agreement and he will be liable to dismissal forthwith without notice on compensation.
14. He has further referred to the guidelines for the Indian Council for School Certificate Examination. Clause 13 of the Guidelines as laid down in the School Service Manual reads as under:
13. RETIREMENT All employees shall retire on attaining the age of 58 years. The SCHOOL in its discretion may grant extension to any employee beyond the age of 58 years depending upon the health and performance of the employee, and on such terms and conditions as may be decided by the management.
15. Respondents have further referred to a Tripartite Agreement entered into between the governing body and the teachers, representatives which also prescribed the date of retirement as 58 years.
16. As noticed above, School is creation of a Society registered under the Society's Registration Act. It is an unaided School, meaning thereby that the Government provides no financial assistance. It has its own bye-laws regulating its functioning. The jural relationship between the Teachers and the School (Society) as also the other non-teaching staff is governed by a contract executed between governing body of the society and the individual teachers/staff. Relationship is that of employer and the employee. A prerogative writ can be issued by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India for the enforcement/protection of fundamental rights of a citizen or for any other purpose. Such a writ can be issued against the State as defined under Article 12 of the Constitution of India and includes the Legislature of a State and/or local or other authorities within the territory of India or under the control of Government of India. If the Respondent-Society/School falls within the definition of a State as defined under Article 12 or comes within the expansive definition of State, which include its authority, instrumentality of an agency, an aggrieved person is entitled to invoke writ jurisdiction of this Court under Article 226 of the Constitution of India. A Society can be said to be a State, if it confirms to the lest laid down by the apex Court in various judgments particularly Ajay Hasia v. Khalid Mujib . These tests have been further concretized in the constitution Bench judgment of Hon'ble Supreme Court of India in the case of Pradip Kumar Biswas v. India Institute of Chemical Biology and Ors. reported in 2002 (6) SCC 111. The tests provided by the Hon'ble Supreme Court are laid down in Para 40 of the aforesaid judgment, which is quoted hereunder:
The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex. hypothesi, be considered to be a State within the meaning Article 12, The question in each case would be - whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.
17. As far the status of the Respondent-Society/School is concerned, it is nobody's case that the Society falls within the definition of State, authonty, instrumentality or agency of the State as defined under Article 12 of the Constitution of India. Hence prerogative writ cannot be issued against it being not State as defined under Article 12. It has been urged on behalf of the petitioner/intervener that even if Respondent-Society is not a State within the meaning of Article 12 or its expanded definition, a mandamus would still lie against the Respondent-Society/School as it is engaged in imparting education, which is a public duty and public function. It is further contended that service conditions of the teaching and non-teaching staff of the School has a direct nexus with the imparting of the education, hence mandamus would lie against the School at the instance of the teaching/non-teaching staff of the School. Existence of public duty/public function and its breach may provide a turf for a writ of mandamus. It is on above premises, M/s. Dwivedi and IndraJit Sinha, learned Counsel appearing for the petitioner/interveners have urged:
(i) That the I.C.S.E Guidelines being conditions of affiliation/recognition have to be followed and observed by the Respondents-Society/School towards Teachers by virtue of their obligation to impart education. To elaborate, it has been argued that to impart education is a State function, it is the obligation of the welfare State to impart education, which is one of the directive principles of State Policy enshrined under Article 41 of the Constitution of India The State can, however, delegate its functions to the private sector, educational institutions and while doing so, thy State has created its limbs to discharge its constitutional obligation of imparting education With a view to persuade the Court and to support their contention, reliance is placed upon various judgments of the apex Court noticed hereunder:
In the case of Miss Raj Soni v. Air officer in charge Administration and Anr. a dispute arose regarding retirement of age of the teachers. There were allegations that the employer is adopting different yardsticks as far the retirement age is concerned, some teaches are retned at the age of 58 years, whereas, in some cases, extension is given up to 60 years of age. Though the School was run by a registered society, however, all recognized Schools whether aided or otherwise were governed and regulated by Delhi Education Act, 1973 and the Delhi Education Rules, 1973 While considering the question of maintainability of writ petition, the Hon'ble Supreme Court observed as under:
The recognised private schools in Delhi whether aided or otherwise are governed by the provisions of the Act and the Rules. The respondent-management is under a statutory obligation to uniformly apply the provisions of the Act and the Rules to the teachers employed in the School. When any authority is required to act in a particular manner under a statute it has no option but to follow the statute. The authority cannot defy the statute on the pretext that it is neither a State nor an "authority" under Article 12 of the Constitution of India.
"Hon'ble Supreme Court on considering above background and on the basis of the pleadings of the parties, held as under:
The respondent-management has not produced any Rules or Bye-laws either framed by the management itself or otherwise to show that there was any uniform provision for retirement of teachers at the age of 58 years. The averments of the petitioner that Section 208 of the Delhi Education Code was being followed and the teachers were superannuated at the age of 60 years have not been specifically denied. Rather these averments have been tacitly admittedly. Even otherwise every institution must frame and follow a uniform rule for superannuating its employees. The age of superannuation cannot be left to the whims of the employer to enable him to retire different employees at different ages. In the absence of any regulation, Bye-laws or policy-decision by the respondent-management regarding the age of superannuation, we accept the contention of the petitioner that prior to the coming into force of the Act and the Rules the management was following the Delhi Education Code which provided 60 years as the age of superannuation for the school teachers. In that view of the matter under Rule 110 of the Rules, the petitioner being an existing employee was entitled to be retired at the age of 60 years.
18. In the case of K. Krishnamacharyulu and Ors. v. Sri Venkatesvara Hindu College of Engineering and Anr. reported in AIR 1998 SC 295, the Teachers, of non-teaching staff of private education institutions filed writ petition seeking parity of pay-scale on the strength ot executive instructions issued by the Government, whereunder, employees of private College were entitled to pay-scale at par with the Government employees. Hon'ble Supreme Court while examining the question of their locus to file petition under Article 226 observed as under:
We are of the view that the State has obligation to provide facilities and opportunities to the people to avail of the right to education. The private institutions cater to the needs of the educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the orders issued by the Government. The question is as to which forum one should approach. The High Court has held that the remedy is available under the Industrial Disputes Act. When an element of public interest is created and the institution is catering to that element, the teacher, the arm of the institution is also entitled to avail of the remedy provided under Article 226; the jurisdiction part is very wide. It would be different position, if the remedy is a private law remedy. So, they cannot be denied the same benefit, which is available to others. Accordingly, we hold that the writ petition is maintainable. They are entitled to equal pay so as to be on par with Government employees under Article 39(d) of the Constitution.
19. In the case of UP State Cooperative Land Development Bank Ltd. v. Chandra Bhan Dubey and Ors. , the Hon'ble Supreme Court considered the right of the dismissed employee of UP State Co-operative Bank Limited, a cooperative society, to maintain an action, under Article 226 of the Constitution of India. The Court found that the service conditions of the employees of the society including the disciplinary proceedings are statutory in nature and controlled by the Slate Government and in this background it observed as under:
In view of the fact that control of the State Government on the appellant is all-pervasive and the employees had statutory protection and therefore the appellant being an authority or even instrumentality of the State, would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution, it may not be necessary to examine any further the question if Article 226 makes it divide between public law and private law. Prima facie from the language of Article 226, there does not appear to exist such a divide.
20. Relying upon various earlier judgments of the Court it held as under.
When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals, whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this Court has laid down certain guidelines and self-imposed limitations have been put there subject to which the High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. The High Court does not interfere when an equally efficacious alternative remedy is available or when there is an established procedure to remedy a wrong or enforce a right.
21. In a famous case of T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. , a Constitution Bench comprising of 11 Judges of Hon'ble Supreme Court of India while examining the right of the minority institution to run aided and unaided minority institutions made certain observations in regard to the teachers of such Schools. Relevant observations are noticed as under:
64. An educational institution is established only for the purpose of imparting education to the students. In such an institution, it is necessary for all to maintain discipline and abide by the rules and regulations that have been lawfully framed. The teachers are like foster parents who are required to look after, cultivate and guide the students in their pursuit of education. The teachers and the institution exist for the students and not vice versa. Once this principle is kept in mind, it must follow that it becomes imperative for the teaching and other staff of an educational institution to perform their duties properly, and for the benefit of the students. Where allegations of misconduct are made, it is imperative that a disciplinary enquiry is conducted, and that a decision is taken. In the case of a private institution the relationship between the management and the employees is contractual in nature. A teacher, if the contract so provides, can be proceeded against, and appropriate disciplinary action can be taken if the misconduct of the teacher is proved. Considering the nature of the duties and keeping the principle of natural justice in mind for the purposes of establishing misconduct and taking action thereon, it is imperative that a fair domestic enquiry is conducted. It is only on the basis of the result of the disciplinary enquiry that the management will be entitled to take appropriate action. We see no reason why the management of a private unaided educational institution should seek the consent or approval of any governmental authority before taking any such action. In the ordinary relationship of master and servant, governed by the terms of a contract of employment, anyone who is guilty of breach of the terms can be proceeded against and appropriate relief can be sought. Normally, the aggrieved party would approach a court of law and seek redress. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking redress is not in the interest of general education. Disputes between the management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an Educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an Educational Tribunal in a State-the object being that the teacher should not suffer through the substantial costs that arise because of the location of the Tribunal; if the tribunals are limited in member, they can hold circuit/camp sittings in different districts to achieve this objective. Till a specialized tribunal is set up, the right of filing the appeal would lie before the District Judge or Additional District Judge as notified by the Government. It will not be necessary for the institution to get prior permission or ex post facto approval of a governmental authority while taking disciplinary action against a teacher or any other employee The State Government shall determine, in consultation with the High Court, the judicial forum in Which an aggrieved teacher can file an appeal against the decision of the management concerning disciplinary action or termination of service.
(Emphasis supplied)
22. In the case of Sureshchandra Singh and Ors. v. Fertilizer Corporation of India Ltd. and Ors. , Hon'ble Supreme Court came across a dispute relating to increase in the age of retirement of employees of the Public Sector Corporations at par with the Central Government employees consequent upon the recommendations of 5th Pay Commission. The Department of Industrial enterprises, Ministry of Industry, Government of India vide its memo dated 19th of May, 1998 recommended for increase in the age of retirement in the public sector undertakings from the date, the relevant rules and regulations of such public sector undertakings are amended by the public sector enterprises concerned. While considering the entorceability of such memo, the apex Court held as under:
It is also to be noted that the OM. dated 19-5-1998 itself does not raise the retirement age to sixty years. It is only an administrative direction and court cannot issue a writ to enforce such administrative instructions that is not having the force of law. The appellants do not have any right to continue in service till the age of sixty years. The decision of the Board of Directors is not arbitrary or unreasonable or unrelated to the question of enhancement in the age of retirement. Hence the first contention stands rejected.
23. In a later judgment, in the case of Zee Telefilms Ltd. and Anr. v. Union of India and Ors. the Constitution Bench of the Hon'ble Supreme Court while considering the implications of seven judges judgment in Pradip Kr, Biswas's case dismissed the writ petition against the Board of Cricket Control in India filed under Article 32 of the Constitution of India by a majority view, however, certain observations were mode in Para 31 and 33, heavily relied upon by the petitioner, which reads:
Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and Ors. involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32.
Thus, it is clear that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226. Therefore, merely because a non-governmental body exercises some public duty, that by itself would not suffice to make such body a Slate for the purpose of Article 12. In the instant case the activities of the Board do not come under the guidelines laid down by this Court in Pradeep Kumar Biswas case hence there is force in the contention of Mr. Venugopal that this petition under Article 32 of the Constitution is not maintainable.
24. In the case of P.A. Inamdar and Ors. v. State of Maharashtra and Ors. reported in (2005) 6 SCC 537 another Constitution Bench comprising of Hon'ble seven judges considered the implications of an earlier 11 judges' Bench Judgment in the case of T.M.A. Pat Case (Supra) and made certain observations with regard to the educational institutions imparting education and their obligations under the constitution What was observed by the apex Court is noticed hereunder-
To establish an educational institution is a fundamental right, Several educational institutions have come up. In Kerala Education Bill "minority educational institutions" came to be classified into three categories, namely, (i) those which do not seek either and or recognition from the State; (ii) those which want aid; and (iii) those which want only recognition but not and. It was held that the first category protected by Article 30(1) can "exercise that right to their hearts' content" unhampered by restrictions. The second category is most significant. Most of the educational institutions would fall in that category as no educational institution can, in modern times, afford to subsist and efficiently function without some State aid. So it n with the third category. An educational institution may survive without aid but would still stand in need of recognition because in the absence of recognition, education imparted therein may not really serve the purpose as for want of recognition the students passing out from such educational institutions may not he entitled to admission in other educational institutions for higher studies and may also not be eligible for securing jobs. Once an educational institution is granted aid or aspires for recognition, the State may grant aid or recoguntion accompanied by certain restitctions of conditions which must be followed as essential to the grant of such aid or recognition the Court damfied in Kerala Education Bill that "the right to establish and administer educational institutions" conferred by Aiticle 30(1) does not include the right to inaladminister, and that is very obvious Merely because an educational institution belongs to a minority it cannot ask for aid of recogmtion though unming in unhealthy surroundings, without any competent teachers and which does not maintain even a fair standard of leaching or which leaches matters subversrve to the welfare of the scholars. Therefoie, the State may prescnbe leasonable regulations to ensure the excellence of the educational institutions to be granted aid or to be recognized. To wit, it is open to the State to lay down conditions for recognition such as, an institution must have a particular amount of funds or properties or number of students or standard of education and so on.
25. It is pertinent to notice some cases relating to the contract of employment of the employees of non-Governmental Corporation.
26. Dismissed employees of International Crops Research Institute (ICRISAD) an intormal association of Government and non-Governmental bodies and co-sponsored by the United Nations challenged then termination by filing a writ petition betore the High Court of Karnataka under Aiticle 226 Writ petition was dismissed as not maintainable. Hon'ble Supreme Court in an appeal in the case of G. Bassi Reddy v. International Crops Research Institute and Anr. held asunder:
28. A writ under Article 226 can lie against a "person" if it is a statutory body or performs a public function or discharges a public or statutory duty (Praga Tools Corpn. V. C.A. Imanual, Shri Anandi Mukta Sadgunt Trust v. V.R. Rudant SCC at p. 698 and VST Industries Ltd. v. Workers' Union). ICRISAT has not been set up by a statute nor are its activities statutorily controlled. Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. The primary activity of ICTISAT is to conduct research and training programmes in the sphere of agriculture purely on a voluntary basis. A service voluntarily undertaken cannot be said to be a public duty. Besides ICRISAT has a role which extends beyond the territorial boundaries of India and its activities are designed to benefit people from all over the world. While the Indian public may be the beneficiary of the activities of the Institute, it certainly cannot be said that ICRISAT owes a duty to the Indian public to provide research and training facilities.
(Emphasis supplied)
27. In the case of General Manager, Kisan Sahkari Chini Mills Ltd. v. Satgrughan Nishad and Ors. in a writ application filed by terminated workman of Sugarmills Co-operative Society, Hon'ble Supreme Court agam considered the maintainability of the writ petition under Article 227 and held as under:
9. Learned Counsel appearing on behalf of the contesting respondents submitted that even if the Mill is not an authority within the meaning of Article 12 of the Constitution, writ application can be entertained as mandamus can be issued under Article 226 of the Constitution against any person or authority which would include any private person or body. The learned Counsel appearing on behalf of the appellant, on the other hand, submitted that mandamus can be issued against a private person or body only if the infraction alleged is in performance of public duty. Reference in this connection may be made to the decisions of this Court in Shri Anadi Mukta Sadguru Shree Muktajee vandas Swami Suvarna Jayanti Mahotsav Sampark Tnist v. V.R. Rudant in which this Court examined the various aspects and distinction between an authority and a person and after analysis of the decisions referred in that 'regard came to the conclusion that it is only in the circumstances when the authority or the person performs a public function or discharges a public duty that Article 226 of the Constitution can be invoked.
(Emphasis supplied)
28. In the case of Binny Ltd. and Anr. v. V. Sadasivan and Ors. while considering the right of employees of a private Company in the background of contract of service and exercise of power of the judicial review by the High Court under Article 226 of the Constitution of India, the apex Court observed as under:
11. Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public, authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and the decision sought to be corrected or enforced must be in discharge of a public function. The role of the State expanded enormously and attempts have been made to create various agencies to perform the governmental functions. Several corporations and companies have also been formed by the Government to run industries and to carry on trading activities. These have come to be known as public sector undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court look the view that many of these companies and corporations could come within the sweep of Article 12 of the Constitution, All the same time, there are private bodies also which may be discharging public functions. It is difficult to draw a line between public functions and private functions when they are 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) Hon'ble Supreme Court considered various decisions to examine the question of public law remedy under Article 226. In the aforesaid judgment and observed 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 public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrong 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 also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against won't it is sought. If the private body is discharging a public duty imposed on such body, them public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law.
(Emphasis supplied) In the Penultimate Para., the apex Court ruled as under:
32. Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not "State" within the meaning of Article 12 of the Constitution and such body is untenable to the jurisdiction under Article 226 of the Constitution and the High Court under Article 226 of the Constitution can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties.
(Emphasis supplied)
29. In the background of the above legal position, it can be safely concluded that the power of judicial review under Article 226 of the Constitution of India can be exercised by the High Court even if the body against which an action is sought is not State or an Authority or an Instrumentality of the State but there must be a public element in the action complained of.
30. To summarize the ratio of various judgments noticed above, I am of the opinion that an application under Article 226 is maintainable:
against a person, a body discharging public duties or public functions. The public duty cast may be 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 some collective benefit for the public or a section of it and the authority to do so must be accepted by the public.
31. In the backdrop of above observations, the present case is to be examined
32. Even if it be perceived that to impart education even by a private un-aided School is a Public duty within the expanded expression of the term, a teacher engaged by the School for teaching the students is only an agency created by it. It is immaterial whether Mr. A or Mr. B is employed by the School to discharge that duty. In any case the terms of employment or contract between the School arid teaching staff engaged to teach the students cannot and should not be construed to be inseparable part of the obligation to impart education. This is particularly in respect of the question of age. Even the teachers who are asking for enhancement of retirement age have to retire after two years or so and some person has to replace them then how the age of retirement can be said to be relevant and material in relation to discharge of public duty by the School. It is only where the retirement age is regulated by some statutory provision its curtailment by the employer in contravention of law may be interfered by Court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty.
33. If the contention of petitioners is accepted then even an individual who undertakes private tuitions and has entered into an arrangement for teaching a student on some settled amount of wages can also invoke writ jurisdiction of High Court if his wages are not paid by the student or his parents on the plea of discharge of public duty or public function of imparting education. Even if it be assumed that the School is pardoning 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 any public element as its integral part cannot be rectified through Article 226. There is no public element in the action complained of. 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 element.
34. In the present case none of the above situations exist. I am of the considered view that this application under Article 226 is not maintainable.
35. I refrain from commenting upon the merits of controversy lest it may prejudice the case of any of parties.
36. In T.M. Pai's case eleven Judges Constitution Bench of Hon'ble Supreme Court has clearly directed the establishment of Educational Tribunal to look into grievances of the aggrieved teachers of private schools. State of Jharkhand has set up such an educational Tribunal for the redressal of the grievance of teachers of such un-aided schools. Interveners in the case did approach the Tribunal but it refused to take cognizance on account of pendency of this writ application. As a matter of fact petitioner/interveners have efficacious remedy before the Tribunal. They are at liberty to avail the remedy if so advised and in such an eventuality delay/latches or limitation if any will not be an impediment.
Petition dismissed. No order as to costs.