Writ Jurisdiction Maintainable in Dismissal of Private Unaided School Teachers: Calcutta HC
11.06.2021 | Education News | EduLegaL | www.edulegal.org | firstname.lastname@example.org
1st Jun 2021, Calcutta High Court while deciding on the maintainability of a petition for writ jurisdiction of HC under Article 226 against Army Public School, held that such private unaided schools were performing public duties and writ jurisdiction can be enforced on private bodies where such public duties are performed. The case in question was “Bineeta Patnaik Padhi v. Union of India and Others” [W.P.A. 5544 of 2021] where the petitioner was Principal of Army Public School at Panagarh on extended probation and was dismissed from her service by the Chairman. The petitioner invoked the writ of mandamus of HC and its maintainability against private body was challenged by the respondents. Court held that such bodies fall within the definition of state to the extent of performing public duties.
Single Bench of Justice Shekhar B Saraf observed:
“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 whom it is sought”
It was contended by the respondents that the school was a private unaided educational institution operated by the Army Welfare Education Society (AWES), a society registered under the Societies Registration Act 1860 and in view of the mandate of Article 12 of the Constitution, it was not subject to writ jurisdiction and service matters of the school is not in the realm of rendering any public duty, the issuance of a writ to redress such lis would have limited applicability.
Court noted that the writ jurisdiction of HC under Article 226 of the Constitution is much wider than that of Supreme Court under Article 32. Apart from enforcing Fundamental Rights, High Court can also enforce legal rights of the petitioner, “Thus, power of the High Court takes within its sweep more authorities than stipulated in Article 12 and the subject-matter which can be dealt with under this article is also wider in scope”. Relying on Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani reported in (1989) 2 SCC 691 it was held that a writ of mandamus could lie to any person or authority performing a public duty and owing a positive obligation to the affected party, wherein such a duty need not be imposed by statute.
It was held that a body is performing a public function when it seeks to achieve some collective benefit for the public or a section of the public. Its authority is accepted by such public and such bodies exercise public functions when they intervene or participate in social or economic affairs in the public interest. After the enactment of the Right to Education (RTE) Act, 2009, Schools were defined by the statute, and respondent school falls within such definition under Section 2(n).
The Apex Court while determining a similar matter in Marwari Balika Vidyalaya v. Asha Srivastava (2020) 14 SCC 449 held that a writ petition is indeed maintainable against the dismissal of a teacher. Many other High Courts have applied the said precedent. As for the contention in the present case that service matters do not form public duty of the school, the court examined legislative intent of the parliament in the RTE Act by considering Section 23, 24 which determine service conditions of teachers and under Section 38, State Government has obligation to make rules for grievance redressal mechanism of teachers. Accordingly, WBRTE Rules were enacted in 2012.
Court finally opined:
“violation of the petitioner’s rights under the RTE Act read with the WBRTE Rules which makes it a fit case for judicial review under Article 226 of the Constitution of India.”
As statutory body was not notified by the State Government for grievance redressal such relief can be sought from the High Court in absence of such body. The court directed the respondents to file affidavits upholding the maintainability of the writ application of the petitioner.
Vaibhav Karadale | Research Intern | EduLegaL