Full Judgment Text
$~81
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 26.03.2025
+ W.P.(C) 19669/2005
RAKESH KUMAR TOMAR .....Petitioner
Through: Mr. Anil Mittal, Mr. Shaurya
Mittal, Mr. Atul Chauhan,
Advocates.
versus
D.A.V.COLLEGE MANAGING COMMITTEE .....Respondent
Through: Mr. Anurag Lakhotia, Mr. Udit,
Advocates.
CORAM:
HON’BLE MR. JUSTICE PRATEEK JALAN
PRATEEK JALAN, J. (ORAL)
1. The original petitioner, Rakesh Kumar Tomar (deceased), was
employed as an Accounts Clerk in the respondent No. 2- D.A.V.
Centenary Public School, Sector - 56, Noida, Uttar Pradesh [“the
School”]. He had filed this writ petition, directed against orders dated
13.09.2004 and 15.12.2004. By the order dated 13.09.2004, his services
were terminated by the School on the ground of “ Absence without Leave ”
for a period of two years. By the communication dated 15.12.2004, his
representation against the termination was also rejected.
2. Two preliminary objections have been taken by Mr. Anurag
Lakhotia, learned counsel for the School. The first relates to the
maintainability of the writ petition in respect of a service dispute against a
private unaided school, and the second, to the territorial jurisdiction of
this Court.
3. I have heard Mr. Anil Mittal, learned counsel for the petitioners
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(legal heirs of the original petitioner), and Mr. Anurag Lakhotia, learned
counsel for the respondent, on the preliminary objections.
4. The first objection is based upon the judgment of the Supreme
1
Court in St. Mary's Education Society v. Rajendra Prasad Bhargava ,
which concerns the maintainability of writ petitions relating to service
disputes, at the instance of employees of private educational institutions.
The Court considered its earlier judgments on this question, and came to
the conclusion that, even if imparting education is taken to be discharge
of a public function, this would not attract the writ jurisdiction, for
adjudication of individual grievances of employees, which are governed
by contractual relationships.
5. The conclusions of the Court have been set out in paragraph 75 of
the said judgment and read as follows:
“ 75. We may sum up our final conclusions as under:
75.1. An application under Article 226 of the Constitution is
maintainable against a person or a body discharging public duties or
public functions. The public duty cast may be either 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 the same for the collective benefit of the public or a section
of it and the authority to do so must be accepted by the public.
75.2. Even if it be assumed that an educational institution is
imparting public duty, the act complained of must have a direct nexus
with the discharge of public duty. It is indisputably a public law action
which confers a right upon the aggrieved to invoke the 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 a writ petition
under Article 226. Wherever Courts have intervened in their exercise
of jurisdiction under Article 226, either the service conditions were
1
(2023) 4 SCC 498 [hereinafter, “ St. Mary’s ”].
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regulated by the 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 .
75.3. 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 the powers of
the High Court conferred by Article 226 in respect of matter relating
to service where they are not governed or controlled by the 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, the 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 .
75.4 . Even if it be perceived that imparting education by private
unaided school is a public duty within the expanded expression of the
term, an employee of a non-teaching staff engaged by the school for
the purpose of its administration or internal management is only an
agency created by it . It is immaterial whether “A” or “B” is employed
by school to discharge that duty. In any case, the terms of
employment of contract between a school and non-teaching staff
cannot and should not be construed to be an inseparable part of the
obligation to impart education. This is particularly in respect to the
disciplinary proceedings that may be initiated against a particular
employee . It is only where the removal of an employee of non-teaching
staff is regulated by some statutory provisions, its violation by the
employer in contravention of law may be interfered with by the 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.
75.5 . From the pleadings in the original writ petition, it is apparent
that no element of any public law is agitated or otherwise made out. In
other words, the action challenged has no public element and writ of
mandamus cannot be issued as the action was essentially of a private
2
character.”
2
Emphasis supplied.
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6. It is evident from the above, particularly paragraphs 75.2 and 75.3
of the judgment, that the only exception carved out by the Court is in
cases where service conditions are regulated by statutory provisions or
where the employer has the status of “State”, within the expansive
definition under Article 12 of the Constitution. In other cases, the Court
has held that an ordinary contract of service with no statutory force or
backing, cannot form the basis of a petition under Article 226 of the
Constitution.
7. It may be noted that the Division Bench of this Court, in Bharat
Mata Saraswati Bal Mandir Senior Secondary School v. Vinita Singh &
3
Ors. , distinguished the judgment in St. Mary’s on the ground of
applicability of Section 10 of the Delhi School Education Acts and Rules,
1973. In the present case, the respondent – School is not located within
the jurisdiction of the National Capital Territory of Delhi, and the said
legal position, therefore, does not prevail.
8. Resultantly, Mr. Mittal does not urge any statutory terms and
conditions, governing the original petitioner’s service. He only submits
that the respondent – School is affiliated to the Central Board of
Secondary Education [“CBSE”] and is, therefore, governed by the Bye-
laws and Rules and Regulations of CBSE. This aspect too, as pointed out
by Mr. Lakhotia, has been adverted to in the judgment in St. Mary’s :
“30. We may at the outset state that CBSE is only a society registered
under the Societies Registration Act, 1860 and the school affiliated to
it is not a creature of the statute and hence not a statutory body . The
distinction between a body created by the statute and a body governed
in accordance with a statute has been explained by this Court in
Executive Committee of Vaish Degree College v. Lakshmi Narain
3
2023 SCC OnLine Del 3934.
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[Executive Committee of Vaish Degree College v. Lakshmi Narain,
(1976) 2 SCC 58 : 1976 SCC (L&S) 176] , as follows : (SCC p. 65,
para 10)
“10. … It is, therefore, clear that there is a well marked
distinction between a body which is created by the statute and a
body which after having come into existence is governed in
accordance with the provisions of the statute. In other words the
position seems to be that the institution concerned must owe its
very existence to a statute which would be the fountainhead of its
powers. The question in such cases to be asked is, if there is no
statute would the institution have any legal existence. If the
answer is in the negative, then undoubtedly it is a statutory body,
but if the institution has a separate existence of its own without
any reference to the statute concerned but is merely governed by
the statutory provisions it cannot be said to be a statutory body.”
31. As stated above, the school is affiliated to CBSE for the sake of
convenience, namely, for the purpose of recognition and syllabus or
the courses of study and the provisions of the 2009 Act and the Rules
framed thereunder.
32. The contention canvassed by Respondent 1 is that a writ petition is
maintainable against the Committee of Management controlling the
affairs of an institution (minority) run by it, if it violates any rules and
Bye-laws laid down by CBSE. First, as discussed above, CBSE itself is
not a statutory body nor the regulations framed by it have any
statutory force. Secondly, the mere fact that the Board grants
recognition to the institutions on certain terms and conditions itself
does not confer any enforceable right on any person as against the
Committee of Management .
XXXX XXXX XXXX
35. Thus, where a teacher or non-teaching staff challenges the action
of Committee of Management that it has violated the terms of contract
or the rules of the Affiliation Bye-laws, the appropriate remedy of such
teacher or employee is to approach CBSE or to take such other legal
remedy available under law. It is open to CBSE to take appropriate
action against the Committee of Management of the institution for
withdrawal of recognition in case it finds that the Committee of
Management has not performed its duties in accordance with the
Affiliation Bye-laws.
36. It needs no elaboration to state that a school affiliated to CBSE
which is unaided is not a State within Article 12 of the Constitution of
India [see Satimbla Sharma v. St Paul's Senior Secondary School
[Satimbla Sharma v. St Paul's Senior Secondary School, (2011) 13
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SCC 760 : (2012) 2 SCC (L&S) 75] ]. Nevertheless the school
discharges a public duty of imparting education which is a
fundamental right of the citizen [see K. Krishnamacharyulu v. Sri
Venkateswara Hindu College of Engg. [K. Krishnamacharyulu v. Sri
Venkateswara Hindu College of Engg., (1997) 3 SCC 571 : 1997 SCC
(L&S) 841] ]. The school affiliated to CBSE is therefore an
“authority” amenable to the jurisdiction under Article 226 of the
Constitution of India [see Binny Ltd. v. V. Sadasivan [Binny Ltd. v. V.
Sadasivan, (2005) 6 SCC 657 : 2005 SCC (L&S) 881] ]. However, a
judicial review of the action challenged by a party can be had by
resort to the writ jurisdiction only if there is a public law element and
not to enforce a contract of personal service . A contract of personal
service includes all matters relating to the service of the employee —
confirmation, suspension, transfer, termination, etc. [see Apollo Tyres
Ltd. v. C.P. Sebastian [Apollo Tyres Ltd. v. C.P. Sebastian, (2009) 14
4
SCC 360 : (2009) 5 SCC (Civ) 358 : (2010) 1 SCC (L&S) 359] ].”
9. The conditions of service of the original petitioner were, therefore,
not governed by statutory framework, and St. Mary’s clearly comes in the
petitioner’s way. The affiliation of the respondent School to the CBSE is
also therefore of no assistance to the petitioner.
10. There is a second impediment to entertaining the present writ
petition, which arises out of paragraph 75.4 of the judgment in St. Mary’s .
It is apparent therefrom, that the Court has clearly distinguished the cases
of teaching employees and non-teaching staff. The Court has held that
employment of teachers can, if governed by statutory provisions, be
considered integral to the discharge of public functions. In contrast,
employment of non-teaching employees has expressly been construed not
to be an inseparable part of the obligation to impart education. The
present case concerns disciplinary proceedings against a non-teaching
employee of a private unaided school, where removal is not regulated by
statutory provisions. Such a case is directly and expressly covered by
4
Emphasis supplied.
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paragraph 75.4 of St. Mary’s, where the Court has held that a writ would
not lie.
11. The judgment in St. Mary’s has been followed in a subsequent
judgment of the Supreme Court in Army Welfare Education Society New
5
Delhi v. Sunil Kumar Sharma & Ors .
12. Mr. Mittal submits that the judgment in St. Mary’s must be read in
the light of earlier pronouncements of the Court, including Andi Mukta
Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav
6 7
Samark Trust v. V.R. Rudani , Ramesh Ahluwalia v. State of Punjab , and
8
Marwari Balika Vidyalaya v . Asha Srivastava , in all of which writ
proceedings against private educational institutions were held to be
maintainable, including in service related disputes. He submits that
Ramesh Ahluwalia was, in fact, a case of a non-teaching employee.
13. I am unable to accede to this submission of Mr. Mittal, in view of
the fact that all these judgments have, in fact, been considered in St.
Mary’s and Army Welfare. The judgments in Ramesh Ahluwalia and
Marwari Balika Vidyalaya, upon which the greatest reliance is placed by
Mr. Mittal, are specifically referenced and discussed in paragraphs 58 to
63 of St. Mary’s. When earlier judgments of the Supreme Court have
been considered and explained in a later judgment, this Court cannot
ignore the later judgment, on the argument that it is inconsistent with the
view taken earlier. Reference may made to the following observations of
the Supreme Court in Gregory Patrao and Others vs. Mangalore Refinery
5
2024 SCC OnLine SC 1683, (hereinafter, “ Army Welfare” ).
6
(1992) 2 SCC 691.
7
(2012) 12 SCC 331 (hereinafter, “ Ramesh Ahluwalia ”).
8
(2020) 14 SCC 449 (hereinafter, “ Marwari Balika Vidyalaya ”).
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9
and Petrochemicals Limited and Others .
“16. This Court thereafter had considered the decisions in U.P.
10 11
Awas Evam Vikas Parishad and Himalayan Tiles & Marble and
has distinguished the same and has observed and held that the
12
decisions in U.P. Awas Evam Vikas Parishad and Himalayan Tiles
13
& Marble shall not be applicable with respect to the acquisition
under the KIAD Act, 1966. Once, this Court in the subsequent
14
decision in Peerappa Hanmantha Harijan dealt with and
considered the earlier decisions in U.P. Awas Evam Vikas
15 16
Parishad and Himalayan Tiles & Marble and distinguished the
same and observed and held with respect to the acquisition under the
KIAD Act, 1966 that the allottee company can neither be said to be a
“person interested” nor entitled for hearing before determination of
compensation, the said ratio was binding upon the High Court.
Thus, it was not open for the High Court to not follow the binding
17
decision of this Court in Peerappa Hanmantha Harijan by
observing that in the subsequent decision in Peerappa Hanmantha
18
Harijan , the earlier decisions in U.P. Awas Evam Vikas
19 20
Parishad and Himalayan Tiles & Marble have not been
considered. The High Court has not noted that as such while
21
deciding the case of Peerappa Hanmantha Harijan , this Court did
22
consider the earlier decisions in U.P. Awas Evam Vikas Parishad
23
and Himalayan Tiles & Marble and had clearly distinguished the
same. Not following the binding precedents of this Court by the High
Court is contrary to Article 141 of the Constitution of India. Being a
subsequent decision, in which the earlier decisions were
considered and distinguished by this Court, the subsequent
decision of this Court was binding upon the High Court and not
24
the earlier decisions, which were distinguished by this Court .”
9
(2022) 10 SCC 461.
10
(1995) 2 SCC 326.
11
(1980) 3 SCC 223.
12
Supra (Note 10).
13
Supra (Note 11).
14
(2015) 10 SCC 469.
15
Supra (Note 10).
16
Supra (Note 11).
17
Supra (Note 14).
18
Supra (Note 14).
19
Supra (Note 10).
20
Supra (Note 11).
21
Supra (Note 14).
22
Supra (Note 10).
23
Supra (Note 11).
24
Emphasis supplied.
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14. The other preliminary objection raised by Mr. Lakhotia, was with
regard to territorial jurisdiction. He also submits that the original
petitioner was a workman-cadre employee, who ought to have invoked
his remedies under the Industrial Disputes Act, 1947. As I have held that
the first preliminary objection has to be upheld, I do not consider it
necessary to enter into these submissions. All rights and contentions of
the parties on these questions are left open.
15. The writ petition is disposed of, with liberty to the petitioners to
agitate their grievances in appropriate proceedings in accordance with
law.
16. Although this writ petition has been pending before this Court for a
very long time, the question of maintainability has only recently been
decided against the petitioners by the judgment in St. Mary’s . In these
circumstances, the petitioners will also be at liberty to raise this before
the concerned forum, for exclusion of the period during which the present
writ petition was pending, under Section 14 of the Limitation Act, 1963,
or principles analogous thereto.
PRATEEK JALAN, J
MARCH 26, 2025
‘Bhupi/SS/Jishnu’/
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