Delhi High Court
Vikramaditya Jain (Minor) vs Union Of India And Others on 14 September, 1998
Equivalent citations: 1998VIAD(DELHI)386, AIR1999DELHI232, 1998(47)DRJ410, ILR1998DELHI883, AIR 1999 DELHI 232, (1998) 47 DRJ 410 (1999) 2 SCT 462, (1999) 2 SCT 462
ORDER Anil Dev Singh, J.
1. This is a writ petition whereby the petitioner challenges the order of his expulsion dated June 2, 1998 from the American Embassy School. The facts lie in a narrow compass.
2. In the year 1993 the petitioner joined the third respondent, American Embassy School (formerly known as American International School), in the VII Standard. The petitioner was eventually promoted to the High School of the same institution. By means of a letter dated August 8, 1997 the fourth respondent, the Principal of the School Mr. Kevin Schafer, informed the parents of the petitioner that he was being placed on final probation for remainder of his enrolment at the school in view of the seriousness of the disciplinary issues. It was also pointed out that in case any further disciplinary issues arise with the petitioner the school will immediately proceed with his expulsion. It was further stated that the letter serves as a final warning to the petitioner. On May 22, 1998 the petitioner was called by the Director of the third respondent along with five other students. He was informed that Hjalte Seeberg, a sixth grade student of the school, had alleged that the petitioner along with others was harassing him over a period of one month or more. The petitioner denied the allegations in writing by his letter dated May 23, 1998. On May 26, 1998, the father of the petitioner, Mr. A.K. Jain, was called by the Principal of the School and was informed that six students including the petitioner were involved in verbal and physical harassment of a sixth grade boy Hjalte Seeberg over a month or more. He was also informed that he had recommended to the Director the expulsion of the petitioner from the school. The parents of the petitioner by a letter dated May 27, 1998 to the Director of the School controverted the allegations against the petitioner. Copies of this letter were sent to the fourth respondent as well as to Mr. Carter, President of the Board of Governors of the School. On June 2, 1998 the Board of Governors of the school informed the parents of the petitioner that in their judgment the petitioner was involved in the disciplinary issue, and therefore in terms of the letter of the fourth respondent dated August 6, 1997 the petitioner was being expelled from the school. It appears that on June 3, 1998 a legal notice was sent to the third respondent at the instance of the father of the petitioner. However, the Advocates of the third respondent informed the Advocates of the father of the petitioner that the decision to expel the petitioner was final and that the school considered the matter as closed. The petitioner being aggrieved of his expulsion has filed the instant writ petition.
3. The preliminary question which needs to be decided is whether the third respondent is amenable to the writ jurisdiction of this Court under Article 226 of the Constitution.
4. For the determination of the question it will be necessary to refer to the letter of the Government of India, Ministry of External Affairs, New Delhi, dated June 28, 1973 to the Charge D' Affairs of the Embassy of the United States of America which was presented in court during the course of hearing. This letter contains the terms of understanding between the Government of India and the Embassy of the United States of America. It is evident from the letter that the American International School was registered under the Societies Registration Act, 1860. The Government of India had given the land to the American International School under an agreement of lease. The letter goes on to record that the Charge D' Affairs of the United States Embassy had indicated the mutual desire of the society and of the United States Embassy for the dissolution of the Society and for release of the land and transfer of the property of the society erected thereon to the Government of India, and for the Government of India to then transfer the property, at the same time, together with the grant of lease of the land to the United States Government for its use for educational purposes. According to the letter the school was then to be administered by or for the Ambassador of the United States of America in India or his representative as the agent of the United States Government. The letter records reaching of an understanding between the Government of India and the Charge D' Affairs of the American Embassy. The essential and relevant terms thereof read as follows :-
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5. The name of the School will be as follows :-
"The American Embassy School, New Delhi."
The object of the School will be to enable American Children to study under the American system of education. Admission to the School will be primarily restricted to children of American nationality, whether of official or non-official status. Children of other persons entitled to diplomatic, consular or official privileges may continue to be admitted to the School. As an Embassy facility, the School shall not carry students of Indian nationality on its rolls after the end of the current educational year, i.e., after May 25, 1973. No branches of the School will be opened without the prior approval of the Government of India. No immovable property outside the present School site will be acquired or leased by or for the School in Delhi or elsewhere except with the prior approval of the Government of India.
6. The School shall confine its activities only to the field of School education.
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8. School staff of American nationality which has been recruited in the United States of America or elsewhere outside of India, and which shall be defined as including professional school personnel, such as School administrators, teachers, counselling and health staff, whose appointment has been notified to and accepted by the Government of India in accordance with its procedural requirements, will be treated as members of the staff of the Ambassador of the United States of America in India, and entitled to such exemptions from income tax as are provided under section 10(6)(v) of the Income-tax Act of 1961.
The above staff including the teachers shall not be entitled to any other privileges and immunities normally available to the staff of the Embassy. In similar manner, the School premises will not be entitled to privileges and immunities as are normally extended to premises of diplomatic missions.
Members of School staff of American nationality entitled to exemption from Indian income tax, pursuant to this Understanding, shall not exceed 16 in number at any given time.
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10. The exemptions set forth herein are granted by the Government of India keeping in mind the friendly relations existing between India and the United States. It is agreed that if the Government of India should decide to open an Indian School in the United States on comparable lines and for similar purposes, the Government of the United States will undertake to afford to it the same exemptions and facilities as are granted to the American Embassy School in New Delhi pursuant to this Understanding, under the principle of reciprocity.
xx xx xx"
5. It cannot be disputed that the terms contained in the letter dated June 28, 1973 of the Government of India, Ministry of External Affairs, were confirmed by the Embassy of the United States of America and the society was dissolved. The school is being run in accordance with the above said arrangement.
6. At this stage it needs to be noticed that Mr. Arun Jaitley, learned senior counsel for respondents 3 to 5, claimed that the third respondent- American Embassy School, and the fifth respondent-American Embassy School Association, New Delhi, are an integral part of the American Embassy and, therefore, immune from or outside the Indian legal system. The submission of the learned counsel is not well founded. An affidavit has been filed by Shri B.K. Gupta, Director/Deputy Chief Protocol (F), Ministry of External Affairs, South Block, New Delhi. It is averred that the building and the land of the respondent school belongs to the American Embassy in New Delhi, and as per the terms and conditions of the memorandum of understanding arrived at between the Government of India and the Government of the United States dated June 28, 1973 the allotment made by the Government of India was solely for the purpose of operating educational facilities. It is further clarified that as per the memorandum of understanding the staff of the school and the premises of the school do not enjoy the immunities and the privileges as are normally available to the staff of the Embassy. But such of the staff of the school having American nationality are entitled to such exemption only from Income Tax as provided under section 10(6)(v) of the Income-tax Act, 1961. Thus, in other words, the third respondent nor the fifth respondent have been conferred any diplomatic immunity by the Government of India. According to section 9 of the Diplomatic Relations (Vienna Convention) Act, 1972, if in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act, a certificate issued by or under the authority of the Secretary to the Government of India in the Ministry of External Affairs stating any fact relating to that question is to be regarded as conclusive evidence of that fact. From the stand taken by the Government of India by means of the above said affidavit and keeping in view the terms of the mutual understanding dated June 28, 1973, I have no difficulty in holding that neither the American Embassy School nor the American Embassy School Association are enjoying any diplomatic immunity. Therefore, they are not immune from the jurisdiction of the Indian court system.
7. In spite of this position the question 'whether the school is an authority within the meaning of Article 226 of the Constitution of India' still remains to be answered? In order to determine the question salient features of the Memorandum of Understanding dated June 28, 1973 need to be noticed. These are :-
1. The object of the school is to enable the American children to study under the American system of education.
2. Admission to the school is primarily restricted to the children of American Nationals.
3. The school shall not carry students of Indian Nationality on its roll after May 25, 1973.
4. The school is administered by or for the Ambassador of the United States in India or his representative as an agent of the United States Government.
5. The Government of United States is to afford to the Government of India in case it opens an Indian School in the United States the same facilities and exemptions as are granted to the American Embassy School in India under the principle of reciprocity.
8. At this stage, it will be advantageous to note the salient features of the school as they appear from the Bulletin of Information of the American Embassy School :-
1. The School is a private co-educational day school operated by and in association under the aegis of the American Embassy.
2. The school is governed by the seven member Board of Governors elected by the parents and faculty for one year term. In addition, the American Ambassador appoints two non-voting members.
3. The Board of Governors appoint the Director who is responsible for the administrative organisation, curriculum and co-ordination of the school.
4. The School offers the International Baccalaureate (IB) Programme. The I.B. Programme of Studies is administered through the International Baccalaureate Office in Geneva (Switzerland). The American Embassy School admits children of any race, religion or sex with the exception of students of Indian Nationality in accordance with the Government of India Policy.
9. Reading both the Bulletin of Information and the terms of the Memorandum of Understanding together it is clear that the Board of Governors runs the school as an agent of the United States Government. The school is not affiliated to any educational institution in India, statutory or otherwise. The students of the school in question do not appear for an examination held by an authority under the law of this country. To clarify it further the students of this school do not take the examinations conducted by the Central Board of Secondary Education or the Council of Indian School Certificate Examination. Both the Central Board of Secondary Education Examination and the Indian School Certification Examination are recognized as public examinations under the Delhi Education Act, 1973. The school offers International Baccalaureate Programme and Regular American Diploma Programme which are not recognized under the Delhi Education Act, 1973, or any other enactment. Primarily the school is meant for the American children in order to enable them to study under the American system of education.
10. A writ petition against an educational institution for breach of the right of the students or teachers would be competent only if an element of public interest is created in it by grant of recognition or affiliation by the State or an academic authority empowered to grant recognition or affilitation. The recognition or affiliation makes the educational institution subject to the control and supervision of the State or body empowered to grant recognition/affiliation. Creation of such public interest in the educational institute and vesting of its control in or subjecting it to the supervision of the Government or authority, according recognition and affiliation impresses or imprints it with governmental attribute. It is this governmental trait invested by the State or the recognising or affiliating authority which makes the educational institution an authority within the meaning of Article 226 of the Constitution. A private educational institution without the control of the State or the aforesaid educational authority cannot be considered an 'authority' within the meaning of Article 226 of the Constitution.
11. Learned counsel for the petitioner submitted that the school is discharging public duty of imparting education and therefore writ should issue against the respondents. In support of this submission, learned counsel for the petitioner laid emphasis on the decision of the Supreme Court in Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others, , wherein the question which the Supreme Court inter alia considered was whether recognition or affiliation to a University or any other academic or other body empowered to grant affiliation or recognition makes the educational institution an instrumentality of the State. The question was considered in the context of the private educational institutions both aided as well as unaided. In so far as aided institutions are cocncerned, the Supreme Court was of the opinion that they have to abide by all the rules and regulations as may be framed by the recognising or affiliating authorities. It was also noticed that in the cases of such institutions they have to adopt the rule of merit and merit alone in the matter of admissions of students subject to any reservation made under Article 15. It was also observed that such educational institutions are not entitled to charge any fee higher than what is charged by Government institutions for similar courses. The reason for this as pointed out by the Supreme Court was that public funds when given as grant and not as loan carry the public character wherever they go, public funds cannot be donated for private purposes. Therefore, it was concluded that such institutions are under the control of the Government and/or recognising/affiliating authorities and a writ under Article 226 of the Constitution of India would be competent in case of violation of the rights of the students or the staff. In regard to the educational institutions which do not receive aid from the Government or an instrumentality of the State but are affiliated to a University or any other academic or other body empowered to grant affiliation, the Supreme Court held that writ under Article 226 of the Constitution against such an educational institutions would also lie. The reason for this, as is clear from the observations of the Supreme Court, is that these educational institutions are subject to control and supervision of the State or University or body empowered to grant recognition or affiliation, as the case may be. They are required to follow the syllabus prescribed by the State or the University or the body empowered to grant recognition or affiliation. Their students appear in the examinations prescribed by the said authorities. The activity of the such private institutions is not an independent activity but one closely allied to and supplementary to the activity of the State which is required to impart education. In this back ground it was held that the recognized or affiliated educational institutions which are not aided by the Government are performing public duty of imparting education. In this regard it will be advantageous to quote the observations of the Supreme Court in the above case :-
"We must, however, make it clear, and which is of crucial importance herein, that the right to establish an educational institution does not carry with it the right to recognition or the right to affiliation. In Ahmedabad St. Xaviers College Society Vs. State of Gujarat, , it has been held uniformly by all the nine learned Judges that there is no fundamental right to Affiliation. Ray, C.J., stated that this has been "the consistent view of this Court". They also recognised that recognition or affiliation is essential for a meaningful exercise of the right to establish and administer educational institutions. Recognition may be granted either by the Government or any other authority or body empowered to accord recognition. Similarly, affiliation may be granted either by the University or any other academic or other body empowered to grant affiliation to other educational institutions. In other words, it is open to a person to establish an educational institution, admit students, impart education, conduct examination and award certificates to them. But he, or the educational institution has no right to insist that the certificates or degrees (if they can be called as such) awarded by such institution should be recognised by the State much less have they the right to say that the students trained by the institution should be admitted to examinations conducted by the University or by the Government or any other authority, as the case may be. The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and/or affiliation is not a matter of course nor is it a formality. Admission to the privileges of a University is a power to be exercised with great care, keeping in view the interest of the general public and the nation. It is a matter of substantial significance _ the very life-blood of a private educational institution. Ordinarily speaking, no educational institution can run or survive unless it is recognised by the Government or the appropriate authority and/or is affiliated to one or the other Universities in the country. Unless it is recognised and/or affiliated as stated above, it's certificates will be of no use. No one would join such educational institution as a matter of fact, by virtue of the provisions of the U.G.C. Act, noticed hereinabove, no educational institution in this country except a University is entitled to award degrees. It is for this reason that all the private educational institutions seek recognition and/or affiliation with a view to enable them to send the students trained by them to appear at the examinations conducted by the Government/University. The idea is that if such students pass the said examination, the Government/University will award its degree/diploma/certificate to them. These educational institutions follow the syllabus prescribed Government/University, have the same courses of study, follow the same method of teaching and training. They do not award their own degrees/qualifications. They prepare their students for University/Government examinations, request the University/Government to permit them to appear at the examinations conducted by them and to award the appropriate degrees to them. Clearly and indubitably, the recognized/affiliated private educational institutions, supplement the function performed by the institutions of the State. Theirs is not independent activity but one close allied to and supplemental to the activity of the State. In the above circumtances, it is idle to contend that imparting of education is a business like any other business or that it is an activity akin to any other activity like building of roads, brides etc. In short, the position is this: No educational institution except a University can award degrees (Sections 22 and 23 of the U.G.C. Act). The private educational institutions cannot award their own degrees. Even if they award any certificates or other testimonials they have no practical value inasmuch as they are not good for obtaining any employment under the State or for admission into higher courses of study. The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private educational institution can survive or subsist without recognition and/or affiliation. The bodies which grant recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory _ in the interest of general public _ upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standards but also fairness and equal treatment in the matter of admission of students. Since the recognising/affiliating authority is the State, it is under an obligation to impose such conditions as part of its duty enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well.
Affiliation/recognition is not there for anybody to get it gratis or unconditionally. In our opinion, no Government, authority or University is justified or is entitled to grant recognition/affiliation without imposing such conditions. Doing so would amount to abdicating its obligations enjoined upon it by Part III; its activity is bound to be characterised as unconstitutional and illegal. The reiterate, what applies to the main activity applies equally to supplemental activity. The State cannot claim immunity from the obligations arising from Articles 14 and 15. If so, it cannot confer such immunity upon its affiliates. Accordingly, we have evolved _ with the help of the counsel appearing before us and keeping in view the positive features of the several Central and State enactments referred to hereinbefore _ the following scheme which every authority granting recognition/ affiliation shall impose upon the institutions seeking such recognitition/affiliation shall impose upon the institutions seeking such recognition/affiliation."
12. Viewing the instant case in the context of the point before the Supreme Court and the above said observations, it is clear that the American Embassy School is not affiliated to any Indian University or any other Indian academic or other body empowered to grant affiliation. The American Embassy School does not follow the syllabus prescribed by the NCRT, CBSE or any other body empowered to grant affiliation to the School. It offers the International Baccalaureate Programme. This I.B. Programme of studies is administered through the International Baccalaureate office in Geneva. The advantage and importance of affiliation/recognition cannot be under played for claiming a writ against a private educational institution. The State or its instrumentality exercise pervasive control over the educational institutions which are affiliated to or recognized by an authority or body empowered to administer or accord recognition. Affiliation/recognition cannot be secured gratis or unconditional as, in the words of the Supreme Court, no authority or University is justified or is entitled to grant recognition/affiliation without imposing conditions. In the event of violation of the conditions the affiliation or recognition can always be withdrawn by them. An institution like the American Embassy School therefore, cannot be characterised as an authority under Article 226 of the Constitution of India as what applies to the activity of the Indian State or its instrumentality in the field of education cannot apply to the American Embassy School as the activity performed by it can not be characterised as supplemental activity to the activity of the Indian State in the field of education. It can not also be said that the American Embassy School which is not affiliated or recognized by any authority in India is performing public duty in which the nation is interested. It cannot be denied that it is not preparing the students for any of the examinations which are conducted in India. A private tutor who gives tuition to his pupil for consideration can not be subjected to the jurisdiction of the High Court under Article 226 of the Constitution as the State has placed no obligation on him to supplement its activity of imparting education. If it is held otherwise it will open flood gates of writ litigation under Article 226 of the Constitution. Private parties in the field of education when they have no affiliation/recognition from the State or any authority can not be amenable to the writ jurisdiction of the court under Article 226 of the Constitution. The principle that private recognized affiliated educational institutions supplement the functions performed by the State or the institutions thereof, cannot be applied to a private unrecognised and un-affiliated educational institution. The American Embassy School is carrying an independent educational activity for the purposes of enabling its students to study under an American system of education. The School is run by the Government of United States through its Ambassador in India who in turn has delegated the functions to the members of the Board of Governors. The reliance placed by learned senior counsel for the petitioner on Unni Krishnan's case (supra) is therefore, of no avail to the petitioner. Dr. Singhvi then referred to the decision of the Supreme Court in Rohtas Industries Ltd. and another Vs. Rohtas Industries Staff Union and others, . This was a case where the writ was claimed against the arb5ators appointed under section 10A of the Industrial disputes Act, 1947. Obviously the writ against the arbitrators appointed under a statute would lie. The observations of the Supreme Court in the above said case that the extraordinary power of the High Court under Article 226 is as wide as amplitude of the language used therein, must be understood in the context of the facts of that case where admittedly the arbitrators were appointed under a statute even though they were private parties. In such a case obviously a writ will lie against private persons invested with statutory power.
13. Learned counsel for the petitioner next relied upon the decision of the Andhra Pradesh High Court in Sarvaraya Sugars Ltd. and others Vs. A.P. Civil Supplies Corporation Ltd. and others, . This was a case where writ was issued against private suppliers of sugar as they were found to be violating a statutory order. This case also does not advance the case of the petitioner. A decision of this Court in Harish Sabharwal & Ors. Vs. Lt. Governor of Delhi 1996 IV A.D. (DELHI) 731, was also relied upon. In this case the writ petition was filed against the Air Force School which had formulated a criteria to determine the eligibility for admission to K.G. Class for children of serving Air Force and Non Air Force Personnel. It was conceded that some of the students with lesser number of marks were given admission while the students with higher number of marks were denied admission. In view of this situation, a direction was issued to the School to admit students who were better in merit than those who were given admission. In that case it was not the contention of the respondent school that it was not governed by the Delhi Education Act, 1973, and the Rules framed thereunder or the School was not affiliated to an instrumentality of the State or the School was not following 10+2 system of education to enable its students to appear in the Central Board of Secondary Education Examination. Obviously, the Air Force School was discharging the supplemental functions of the State in imparting education and it was not indulging an independent activity of its own. Similarly in the decision of this Court reported in Miss Payal Gupta Vs. Lt. Governor of Delhi and others, 1994 III AD (Delhi) 1119, it was held that the recognized schools governed by Delhi Education Act, 1973, can not have their own criteria of admission and it is always open to the Court under Article 226 of the Constitution to set aside the same. This case also has no application to the case in hand.
Learned senior counsel for the petitioner heavily relied upon the decision of the Supreme Court in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and others Vs. V.R. Rudani and others, . This was a case where the first appellant, a public trust was running a college affiliated to the Gujarat University under the Gujarat University Act, 1949. The University of Gujarat took a decision to grant revised pay scales to teachers in affiliated colleges. The Supreme Court held that the directives of the University were binding on the management as the service conditions of the academic staff are not purely of private character. In this regard the Supreme Court held as follows :-
"If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants-trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions.
The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. (See The Evolving Indian Administrative Law by M.P. Jain (1983) p. 266). So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party."
14. Thus it will be seen that the Supreme Court clearly laid down that in case the management of the college is purely a private body with no public duty, mandamus will not lie. It is only when public money is paid as Government aid to an educational institute or it is affiliated or recognized by the State or an educational authority set up under the Indian law, that it discharges like Government institutions public functions or public duty of imparting education to the students. Such affiliated/recognized or State funded educational institutions are subject to the regulation and supervision of the State or the educational authorities of the State. The American Public School does not have any of the attributes which the affiliated college run by the trust in Anadi Mukta's case (supra) exhibited.
15. Dr. Singhvi, learned senior counsel for the petitioner also cited the decision of the Andhra Pradesh High Court Rakesh Gupta and Ors. Vs. Hyderabad Stock Exchange Ltd., Hyderabad and others, 1996 (2) ALD 1042. In this case the petition under Article 226 of the Constitution was held to be maintainable against Hyderabad Stock Exchange Ltd. It was not in dispute that the Stock Exchange, which was a public limited company, was recognized by the Securities and Exchange Board of India as a Stock Exchange on its willingness to comply with the provisions of the Securities Contracts (Regulation) Act, 1956. It made itself subject to the control and regulations relating to the admission into the Stock Exchange of various classes of members, the qualifications for membership and the exclusion, suspension, expulsion and readmission of members therefrom or there into. Thus it is evident that the Hyderabad Stock Exchange, though a limited company, was recognized by SEBI and was bound to comply with the statute. This case again does not help the petitioner. Another decision of this Court, namely, Master Vibhu Kapoor Vs. Council of Indian School Certificate Examination and another , needs also to be noticed as reliance has been placed thereon by learned senior counsel for the petitioner. In this case mandamus was claimed against the Council of Indian School Certificate Examination. The Counsel for Indian School Certificate Examination was established and registered under the Societies Registration Act, 1860. Under section 2(s) of the Delhi Education Act, 1973, the Council of Indian School Certificate Examination has been recognized as a body conducting public examination. It had entered into an arrangement with the Government to enable it to discharge its public function of imparting education and to conduct public examination. Thus, it has a statutory recognition as a body authorised by the Government to discharge the public function or governmental function of imparting education. Therefore, the Council for Indian School Certificate Examination was so impregnated with governmental character that this Court regarded it as an 'authority' within in the meaning of Article 226 of the Constitution. The observations of this Court in this case would show that in case the Council was doing the same work in its private capacity it would not be regarded as an authority within the meaning of Article 226 of the Constitution. The relevant observations of the Court are as follows:-
"In our opinion, there can be no doubt that the public nature and the function discharged by the first respondent is so impregnated with governmental character that the first respondent has to be regarded as an authority within the meaning of the term in Article 226 of the Constitution. The first respondent is discharging the public function of imparting education, as contemplated by Article 41 of the Constitution. This, however, it could do even in its private capacity without being regarded as an authority within the meaning of Article 226 of the Constitution. As declared by the first respondent in the priced publication referred to earlier, it has entered into an arrangement with the Government to enable it to discharge its public function of imparting education and thereby has not only received the authority or concession or privilege to conduct public examinations but has been statutorily recognised by S. 2(s) of the Delhi educational Act as a body of persons or a society recognised and authorised by the Government to discharge the public function or the governmental function of imparting education. The rules and regulations of the first respondent read earlier show governmental supervision, if not control. Two of the members of the society are to be nominated by the Government which, at its choice, may either be full members or assessors. The Director of Education/Public Instruction (or his deputy) of the State in which a school affiliated to the first respondent exists is a member of the society. So not only functionally but also structurally the first respondent is deeply impregnated with Governmental character and is admittedly discharging a public function. If such an organisation is not to be regarded as an authority on the basis of the rule enunciated in Ajay Hasia's case, we do not know which other can. We, therefore, hold that the first respondent is an authority within the meaning of the term as used in Article 226 of the Constitution. It is a limb of the Government in discharging the public function of imparting education and, therefore, a petition under Ar. 226 of the Constitution for issue of a writ of certiorari or mandamus or both is maintainable."
16. I do not find as to how the case of the petitioner is advanced by the decision in Master Vibhu Kapoor's case (supra).
17. The American Embassy School is not affiliated to any instrumentality of the Indian State or any educational authority thereof in the field of education of this country. The students of the School do not follow the courses prescribed by the National Council of Educational Research and Training, Central Board of Secondary Education or the Council of Indian School Certificate Examination. The Government of India or any other educational authority functioning in India has not placed any obligation on the School to prepare students for International Baccalaureate Programme. Therefore, the functions discharged by the School are in no way impregnated with the Indian governmental character. The United States government has established the school basically for the American children on the principle of reciprocity. The Indian State or any instrumentality of the Indian State does not exercise any supervision over the School. They have no say in the affairs of the School or in the matter of prescribing syllabus and the terms and conditions of service of its staff. The provisions of Delhi Education Act, 1973, are not applicable to the School. In case the School was affiliated to the University or any instrumentality of the Indian State or any Indian educational authority, it could be said that the School was discharging the functions of the Indian State in imparting education. But that is not the case. Therefore, it is a purely private institution in the sense that the Government of India or any instrumentality of the Indian State or any other Indian authority, has no association with it in the field of education or control over it, nor is it governed under any statute. It is not a limb of the Indian State discharging the public function of imparting education to supplement the State's obligation to provide education. It is a School administered by the Ambassador of the United States of America in India as an agent of the United States Government.
18. An educational institution can be said to be an 'authority' or 'person' within the meaning of Article 226 of the Constitution of India where it has been established and is run by the State, or where it is not so established and is not run by the State but is funded wholly or partly, as the case may be, by the State, or where it is not even so funded but is affiliated or recognized by the State or by the educational authorities of the State. In such a situation the State or the authority granting recognition or affiliation can ensure observance or compliance of the conditions by the educational institution as are necessary to the maintenance of the requisite standards of education or to accord fair and equal treatment in the matters of admission of students and in the matter of regulation of conditions of service of teachers. Where a private school is funded or aided by the State or is affiliated or recognized by the State or an authority or an instrumentality of the State, an element of public interest is created in the performance of the duties by the school, its management and its teachers. Such an educational institution can only be considered to be an authority or a person for the purposes of Article 226 of the Constitution of India.
19. In view of the above discussion, I am of the opinion that the writ petition is not maintainable.
20. Before parting with the matter it would be necessary to notice the submission of the learned senior counsel for the petitioner that the action taken against the petitioner is violative of the principles of natural justice and the policy decision of the American Embassy School dated January 19, 1993. It must be observed that the expulsion of a student is a gravest disciplinary action that can be imposed on him. The repercussion on his life is immense especially when the student is in the final year of his study at school and there is no other school in Delhi offering International Baccalaureate Programme. The action in such circumstances against a student must be tempered with mercy. The fault or failure of a young student can not be wholly attributable to him. Failure of a child is not his failure alone. Should we be then so harsh to him so as to ruin his academic career? Undoubtedly, a student's conduct is to be responsive and sensitive towards others. But to take an action of expulsion for lack of it must conform to the principles of natural justice and the procedure prescribed by the school in this regard. While it is not necessary in every case that the student complaining against the delinquent student must be subjected to cross-examination by the latter, but the requirements of principles of natural justice must be complied with before taking an action against him. The delinquent must be told of the charge against him and he must be allowed opportunity to say what he has to say in the matter before the authority which has to take action. This could be by way of written submissions or by oral hearing. He must know the action proposed against him by the authority so that he can show cause against it. Revised policy decision of the school dated January 19, 1993 clearly lays down that in case of a continued violation of rules or terms of probation or suspension where expulsion is automatic, the Director of the school must prepare a detailed recommendation to the Board of Governors which shall be shared with the student and the parents concerned. The student is to be allowed to respond to the recommendations in writing or in personal discussion with the Board of Governors. Admittedly, the recommendations made to the Board were not shared with the student. He had, therefore, no opportunity to meet the recommendations. It is not disputed that the then President of the Board of Governors of the school by his letter dated May 27, 1998 to the members of the Board pointed out that he had made enquiries from the involved students about the incident of teasing and each one of them without any equivocation told him that the petitioner was not involved. In these circumstances, the petitioner would have been entitled to quashing of the impugned order of expulsion but since the writ petition is not maintainable, therefore, such a relief can not be given to him in these proceedings. In the circumstances, the American Embassy School will be well advised to review its action and allow the petitioner to complete his studies subject to the conditions which the school may impose on the petitioner for maintaining the discipline.
21. In the result, the writ petition is dismissed.
22. It will be open to the petitioner to seek appropriate remedy against the impugned action, if so advised.