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Abhay Nevagi & Associates

EDUCATION AMOUNTS TO PUBLIC FUNCTION – HENCE WRIT MAINTAINABLE AGAINST PRIVATE SCHOOL

INTRODUCTION

The Hon’ble Supreme Court of India in the matter of Marwari Balika Vidyalaya vs. Asha Shrivastava and Ors. Civil Appeal No. 9166 of 2013 has held that the Writ of Mandamus was maintainable against a Private Unaided School.

FACTS IN BREIF

Respondent No. 1 applied for the position of an ‘Assistant Teacher’ at the Appellant organization. In view of the same, an interview was conducted, and Respondent No. 1 was appointed on probation in the Appellant institution on 01.04.1995. Documents relating to the appointment of the Respondent No. 1, were sent to the District Inspector of Schools, (Primary Education) Calcutta on 31.03.1995 for his approval. The District Inspector of Schools, thereafter, referred the said documents relating to the appointment of Respondent No. 1 to Director of School Education, West Bengal. The Director of School Education however asked the District Inspector of Schools to seek a Declaration from Respondent No. 1 stating that she would not seek any arrear in salary. In spite of Respondent No. 1 having submitted her Declaration, there was a delay in the grant of approval.

In this regard, Respondent No. 1 filed Writ Application No. 3232 of 2000 before the Calcutta High Court on 27.11.2000. The Hon’ble High Court vide its Order dated 18.12.2000 directed the Director of School Education to consider the matter relating to the appointment of Respondent No. 1 within six weeks.

Considering the fact that Respondent No.1 had filed a Writ Petition before the High Court against the Director of School Education, Respondent No. 1 was first suspended from her duties on from 21.12.2000 till 01.01.2001 and thereafter was forcibly ousted from the school premises with the help of police on 19.02.2001. Thereafter on 20.02.2001, she was served with the Letter of Termination of Service.

WHAT THE COURT HELD

Placing reliance on the judgement of the hon’ble Supreme Court in the matter of Ramesh Ahluwalia vs. State of Punjab and Ors., it was held by the Apex Court that the term ‘authority’ under Article 226 has a liberal meaning. Therefore, the power of High Court to issue a Writ under Article 226 is not confined to statutory authorities and instrumentalities of the State. It is for the Courts to judge, as to what kind of duty an organization is performing rather than ascertaining the means by which such a duty has been imposed.

To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.

Therefore, in consideration of the fact that the Appellant Organization (an educational institution) was performing a public function of imparting education to children, it was held that the Writ was maintainable. In view of the same, the institution was directed to reinstate Respondent No. 1 with full back-wages.

IMPACT OF THIS JUDGEMENT

Article 226 confers on High Courts, the power to issue, to any person or authority, including the government (in appropriate cases), directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them. The Writ of Mandamus is a writ issued as a command to an inferior court or ordering a person to perform a public or statutory duty.

This judgement however has broadened the scope of “public or statutory duty”. The Court has considered that it is not necessary that in order to perform a public or statutory duty, the organization has to be a government or government aided organization. A private organization too can perform public or statutory duty. In this regard, the court are required to determine the nature of duties rather than the nature of the organization. Such a stance by the Apex Court of the country, as commonly believed, can open floodgates for Writ petitions filed against private organizations to redress grievances.

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