The Bharatiya Vidya Bhavan vs Raju.B

These appeals concern a common issue

relating to maintainability of the Writ

Petition filed against Bharathiya Vidya

Bhavan having affiliation with the Central

Board of Secondary Education (CBSE). In W.A

No. 1060 of 2019 arising from WP(C)No.17603

of 2013, the issue involved was relating to

a disciplinary action taken by Bharathiya

Vidya Bhavan, an unaided school against the

Writ Petitioner. The appellants raised a

question regarding maintainability of the

Writ Petition. Writ Petitioner inter alia

contended that the show cause notice issued

by the Management and the decision to

conduct an enquiry is in violation of

principles of natural justice. The

appellant contended that in so far as the WA.No.1060 OF 2019 & con.case

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school is an unaided school,in respect of

disciplinary action taken by the Management

against a teacher, writ of certiorari or

writ of mandamus cannot be issued. The

learned Single Judge having considered the

matter and placing reliance upon various

judgments of this Court and the Apex Court

held that, the Writ Petition was

maintainable and thereafter proceeded to

arrive at a finding that the show cause

notice as well as the decision to conduct

enquiry was bad in law and accordingly

quashed the said proceedings.

2. In WA No.1347 of 2019 arising from

WP(C)No.10980 of 2019, the writ petitioner

challenged the decision of the Management,

which is an unaided school keeping her out

of service at the age of 56, despite the

fact that the retirement age as per the bye

law conditions of the school was 60 years.

In that case, the learned single judge WA.No.1060 OF 2019 & con.case

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after having relied upon the judgment in

Sommy Kunjappan and Ors. v. Central Board

of Secondary Education and Ors.[ 2019 (1)

KLT 864] dismissed the Writ Petition as not

maintainable.

3. The short question to be considered

in these appeals is whether in respect of

termination of service or disciplinary

action taken against a teacher wrongly in

an unaided institution, a challenge can be

made by filing a Writ Petition. In fact, in

Sommy's case (supra) a reference has been

answered by a Division Bench of this Court

on 28.2.2019, wherein after considering the

case law involved in the matter, it was

held that a Writ Petition invoking Article

226 of the Constitution of India is not

maintainable at the instance of an employee

of an unaided school. While arriving at the

aforesaid conclusion, Division Bench held

at paragraphs 9 to 11 as under;

WA.No.1060 OF 2019 & con.case

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"9. The Supreme Court has recently surveyed the case law on the point in K.K.Saksena v. International Commission on Irrigation and Drainage and others [(2015) 4 SCC 670] wherein it was held as follows: "43. What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is 'State' within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are a catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. The reason is obvious. A private law is that part of a legal system which is a part of common law that involves relationships between individuals, such as law of contract or torts. Therefore, even if a writ petition would be maintainable against an authority, which is 'State' under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law.

52. It is trite that contract of personal service cannot be enforced. There are three exceptions to this rule, namely:

i. when the employee is a public servant working under the Union of India or State;

ii. when such an employee is employed by an authority/body which is a State within the meaning of Article 12 of the Constitution of India; and

iii. when such an employee is 'workmen' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and raises a dispute regarding his termination by invoking the machinery under the said Act.

In the first two cases, the employment ceases to have private law character and 'status' to such an employment is attached. In the third category of cases, it is the Industrial Disputes Act which confers jurisdiction on the Labour Court/Industrial Tribunal to grant reinstatement in case termination is found to be illegal." (emphasis supplied)

The following decisions have also been adverted to in Saksena's case (supra):

i. Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. Rudani [(1989) 2 WA.No.1060 OF 2019 & con.case

9

SCC 691].

ii. G. Bassi Reddy v. International Crops Research Institute [(2003) 4 SCC 225].

iii. Praga Tools Corporation v. Imanual [(1969) 1 SCC 585].

iv. Federal Bank Ltd. v. Sagar Thomas [(2003) 10 SCC 733].

The decision in Ramesh Ahluwalia v. State of Punjab [(2012) 12 SCC 331] is clearly distinguishable inasmuch as the employee therein was only directed to file an appeal before the Education Tribunal constituted.

10. The teacher of a school affiliated to CBSE is neither a public servant working under the Union of India or State nor an employee employed by a body which is a State within Article 12 of the Constitution of India. The teacher is also not a 'workman' as defined in the Industrial Disputes Act, 1947 who alone can invoke the machinery under the said Act challenging termination of his service. The contract of personal service cannot be enforced in other circumstances even against an authority discharging public function under Article 226 of the Constitution of India. To the same effect is Ramesh Sanka v. Union of India and others [2019 (1) KHC SN 26(SC)] though rendered in the context of Article 32 of the Constitution of India. The very issue is concluded by Sophiamma v. Council for the Indian School and another [2008(2) KLT 589] and Toji Joseph and another v. State of Kerala and others [ILR 2009 (3) Ker. 54]. The disciplinary actions right from the order of suspension to the order of termination from service are challenged in the instant case which is beyond judicial review. Only grievance subsisting if any in the domain of public law with reference to the provisions of the R.C.E.Act and R.C.E.Rules can if at all be agitated in proceedings of this nature.

11. We approve the dictum in Sophiamma's case (supra) and Toji Joseph's case (supra) that a writ petition for enforcing contract of personal service is not maintainable against the school discharging a public duty. We overrule the decisions in Bincy Raj and others v. CBSE and others [2015 KHC 3683] and Chithra v. State of Kerala and others [2017 (3) KHC 687] to the extent they hold otherwise. The latter decisions to the effect that disciplinary action can be challenged in writ proceedings have been rendered without noticing the proviso to Rule 19(2) of the R.C.E.Rules. "

WA.No.1060 OF 2019 & con.case

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4. The learned counsel for the

appellant also placed before us another

Division Bench judgment of this Court in

Bindu K.B v.State of Kerala and Others

[2014 (4) KHC 789(DB)], in which one among

us (myself) had taken a similar view. The

question considered in that case was

whether a Writ Petition against a private

body registered under the Travancore Cochin

Literary Scientific and Charitable

Societies Act, 1955 was maintainable or

not. After placing reliance on various

judgments of the Apex Court including the

judgment in Andi Mukta Sadguru Shree

Muktajee Vandas Swami Suvarna Jayanti

Mahotsav Smarak Trust v. V.R Rudani [(1989)

2 SCC 691], this Court held at paragraphs

10 and 13 as under;

"10. The said judgment clearly laid down that what is relevant in the judgment is the nature of duty imposed on the body. A private body which is not interested with any public duty or function , cannot be treated to be performing public duty, for which public law remedy is not available. In paragraph 29 , 31 and 32 the Apex Court has examined the concept of public functions and discharge of said functions by a private body. It has WA.No.1060 OF 2019 & con.case

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clearly laid down that the duties cast on the public body either statutory or otherwise and further exercise of any jurisdiction in contractual matters cannot be termed as discharge of public function where the relations of employer- employee are governed by contract of employment entered between the two. There is no public element involved, nor it can be forced by a mandamus."

"13. The basic Judgment relied on by the Apex court was in V.R. Rudani's case. As noted above, the Rudani's case was a case where the employees were regulated by a statutory conditions of service and in Ramesh Aluvalia's case, the court was concerned with an institution which was running a chain of educational institutions imparting education. There are two reasons for which the said judgment is not helpful to the appellant. Firstly, the said judgment was rendered in case of an institution which was imparting education, and affiliated to Central Board of Secondary Education. And secondly, the learned Single Judge in his judgment has stated that the said judgment did not consider the earlier judgment of the Apex Court in Binny Ltd and another v. B. sadasivan and Others [(2005) 6 SCC 657]. There is distinction between the public function of purely contractual character and private body which is performing the public function. The contract of employment and any breach of contract of employment follows a purely private character in which public function is not available. Hence we do not see any error in the judgment of learned Single Judge, in which reliance has been placed on the judgment of Binny Ltd. and another v. B. Sadasivan and others [(2005) 6 SCC 657] in preference to Ramesh Aluvalia's case. Learned Single Judge has elaborately considered the issue and we are of the view that the learned Single Judge has rightly come to the conclusion that the writ petition is not maintainable. We see no reason to interfere in the judgment. The writ appeal is dismissed."

5. He also placed reliance on recent

judgment of the Apex Court in Ramakrishna

Mission and Ors. v. Kago Kunya and Ors

[2019 (5) SCALE 559] wherein the Apex Court

still further considered, whether

Ramakrishna Mission is a State coming

within Article 12 of the Constitution of WA.No.1060 OF 2019 & con.case

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India and whether it performs public duties

and would be amenable to the writ

jurisdiction under Article 226 of the

Constitution, and held that though the

functions of the Mission are similar to or

closely related to those performable by the

State in its sovereign capacity, still even

if a body discharges a public function in a

wider sense, there is no public law element

involved in the enforcement of a private

contract of service. Paragraphs 23 to 30

are relevant which reads as under;

"23. Following the decision in Andi Mukta (supra), this Court has had the occasion to re-visit the underlying principles in successive decisions. This has led to the evolution of principles to determine what constitutes a 'public duty' and 'public function' and whether the writ of mandamus would be available to an individual who seeks to enforce her right.

24. In VST Industries Ltd v VST Industries Workers' Union, a two judge Bench of this Court held that a mere violation of the conditions of service will not provide a valid basis for the exercise of the writ jurisdiction under Article 226, in a situation where the activity does not have the features of a public duty. This Court noted:

7. In de Smith, Woolf and Jowell's Judicial Review of Administrative Action, 5th Edn., it is noticed that not all the activities of the private bodies are subject to private law e.g. the activities by private bodies may be governed by the standards of public law when its decisions are subject to duties conferred by statute or when, by virtue of the function it is performing or possibly its dominant position in the market, it is WA.No.1060 OF 2019 & con.case

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under an implied duty to act in the public interest... After detailed discussion, the learned authors have summarised the position with the following propositions:

(1) The test of whether a body is performing a public function, and is hence amenable to judicial review, may not depend upon the source of its power or whether the body is ostensibly a 'public' or a 'private' body.

(2) The principles of judicial review prima facie govern the activities of bodies performing public functions."

(3) ...In the following two situations judicial review will not normally be appropriate even though the body may be performing a public function:

(a) Where some other branch of the law more appropriately governs the dispute between the parties. In such a case, that branch of the law and its remedies should and normally will be applied; and

(b) where there is a contract between the litigants.

In such a case the express or implied terms of the agreement should normally govern the matter. This reflects the normal approach of English law, namely, that the terms of a contract will normally govern the transaction, or other relationship between the parties, rather than the general law. Thus, where a special method of resolving disputes (such as arbitration or resolution by private or domestic tribunals) has been agreed upon by the parties (expressly or by necessary implication), that regime, and not judicial review, will normally govern the dispute."

(Emphasis supplied)

25. In G Bassi Reddy v International Crops Research Institute MANU/SC/0115/2003: (2003) 4 SCC 225, a two judge Bench of this Court dealt with whether the International Crop Research Institute for the Semi-Arid Tropics ("ICRISAT") which is a non- profit research and training centre, is amenable to the writ jurisdiction under Article 226.The dispute concerned the termination of employees of ICRISAT. The Court held that only functions which are similar or closely related to those that are performed by the State in its sovereign capacity qualify as 'public functions' or a 'public duty':

28. A writ under Article 226 can lie against a "person" if it is a statutory body or performs a public function or discharges WA.No.1060 OF 2019 & con.case

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a public or statutory duty...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 ICRISAT 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."

Applying the above test, this Court upheld the decision of the High Court that the writ petition against ICRISAT was not maintainable.

26. A similar view was taken in Ramesh Ahluwalia v State of Punjab MANU/SC/0865/2012 : (2012) 12 SCC 331, where a two judge Bench of this Court held that a private body can be held to be amenable to the jurisdiction of the High Court under Article 226 when it performs public functions which are normally expected to be performed by the State or its authorities.

27. In Federal Bank Ltd. v Sagar Thomas,6 this Court analysed the earlier judgements of this Court and provided a classification of entities against whom a writ petition may be maintainable:

18. From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body;

(iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function."

(Emphasis supplied)

28. In Binny Ltd. v V Sadasivan, a two judge Bench of this Court noted the distinction between public and private functions. It held thus:

WA.No.1060 OF 2019 & con.case

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"11...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. The Bench elucidated on the scope of mandamus:

"29. 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 whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the 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...There cannot be any general definition of public authority or public action. The facts of each case decide the point."

(Emphasis supplied)

29. More recently in K K Saksena v International Commission on Irrigation and Drainage MANU/SC/1213/2014 : (2015) 4 SCC 670, another two judge Bench of this Court held that a writ would not lie to enforce purely private law rights. Consequently, even if a body is performing a public duty and is amenable to the exercise of writ jurisdiction, all its decisions would not be subject to judicial review. The Court held thus:

"43. What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is "State" within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are a catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. The reason is obvious. A private law is that part of a legal system which is a part of common law that involves relationships between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is "State" under Article 12 of WA.No.1060 OF 2019 & con.case

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the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law."

Thus, even if the body discharges a public function in a wider sense, there is no public law element involved in the enforcement of a private contract of service.

30. Having analysed the circumstances which were relied upon by the State of Arunachal Pradesh, we are of the view that in running the hospital, Ramakrishna Mission does not discharge a public function. Undoubtedly, the hospital is in receipt of some element of grant. The grants which are received by the hospital cover only a part of the expenditure. The terms of the grant do not indicate any form of governmental control in the management or day to day functioning of the hospital. The nature of the work which is rendered by Ramakrishna Mission, in general, including in relation to its activities concerning the hospital in question is purely voluntary.

6. On the other hand, while supporting

the judgment of learned Single Judge in

WP(C)No.17603 of 2013, learned senior

counsel Shri.N.N.Sugunapalan placed

reliance upon judgment of Apex Court in

Marwari Balika Vidyalaya v. Asha Srivastava

and Others [2019 (2) KHC 929 (SC) in which

the Apex Court had occasion to consider the

case where, disciplinary action had been

taken by a school against a teacher who had

filed a Writ Petition before the High

Court. In that case, after taking into WA.No.1060 OF 2019 & con.case

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consideration the judgment of the Apex

Court in Ramesh Aluwalia V.State of Punjab

and others [2012 KHC 4548], the Apex Court

after distinguishing a few of the judgments

held that the Writ Petition was

maintainable. As far as the appellant is

concerned, needless to state that it is

indeed a person or authority coming under

Article 226 of the Constitution of India.

But to invoke the jurisdiction of this

court and seek a writ of mandamus or

certiorari in the matter, it has to be

verified whether the subject matter in the

case comes within the domain of any public

function or duty to be performed by the

said authority. Viewed in the light of the

judgment of this Court in Sommy (supra),

Bindu K.B (supra) and the judgment of the

Apex Court in Ramakrishna Mission (supra),

disciplinary action or termination of

service of employee of schools run by WA.No.1060 OF 2019 & con.case

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unaided institutions do not come within the

ambit of any public function, whereas it

comes within the realm of a private

contract. However, we have to analyse the

judgment of the Apex court in Marwari

Balika Vidyalaya'case (supra) in order to

find out whether a different view is to be

taken in the matter. A perusal of the

factual situation involved in the said case

would disclose as under;

"2. The facts of the case are that respondent No,1 herein applied for the post of Assistant Teacher in the year 1985 and after the interview she was appointed as Assistant Teacher in the appellant-school on probation w.e.f.01/04/1995. The school authority referred all requisite papers to the District Inspector of Schools concerned seeking approval on 31st March, 1995. On 2nd January,1997 concerned District Inspector of Schools (Primary Education), Calcuta referred those papers papers to the Director of School Education, West Bengal for his opinion who in turn requested the District Inspector of Schools concerned to submit a declaration from respondent No.1 herein that she would not claim any arrear of salary. Respondent No.1 unwilling agreed to such an undertaking."

Further reference was made by the Apex

Court to the judgment in Ramesh Aluwalia's

case supra) and also few other judgments

which rendered a different view and it was

held at paragraphs 14 to 20 as under;

WA.No.1060 OF 2019 & con.case

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"14. This Court has laid down in Raj Kumar v. Director of Education & Ors. (supra) that the intent of the legislature while enacting the Delhi School Education Act, 1973 (in short, 'the DSE') was to provide security of tenure to the employees of the school and to regulate the terms and conditions of their employment. While the functioning of both aided and unaided educational institutions must be free from unnecessary Governmental interference, the same needs to the reconciled with the conditions of employment of the employees of these institutions and provision of adequate precautions to safeguard their interests. Section 8(2) of the DSE Act is one such precautionary safeguard which needs to be followed to ensure that employees of educational institutions do not suffer unfair treatment at the hands of the management.

15. Writ application was clearly maintainable in view of aforesaid discussion and more so in view of the decision of this Court in Ramesh Ahluwalia v. State of Punjab & Ors. (supra) in which this court has considered the issue at length and has thus observed:

"13. in the aforesaid case, this Court was also considering a situation where the services of a Lecturer had been terminated who was working in the college run by the Andi Mukti Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust. In those circumstances, this Court has clearly observed as under:(V.R. Rudani case, SCC PP.700-701, paras 20 & 22)

"20. The term 'authority' used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words 'any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.

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22. Here again, we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the Statute. Commenting on the development of this law, Professor de Smith states:'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. We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellant on the maintainability of the writ petition.

The aforesaid observations have been repeated and reiterated in numerous judgments of this Court including the judgments in Unni Krishnan and Zee Telefilms Ltd. brought to our notice by the learned counsel for the appellant Mr. Parikh.

14. In view of the law laid down in the aforementioned judgment of this Court, the judgment of the learned Single Judge as also the Division Bench of the High Court cannot be sustained on the proposition that the writ petition would not maintainable merely because the respondent institution is a purely unaided private educational institution. The appellant had specifically taken the plea that the respondents perform public functions i.e. providing education to children in their institutions throughout India.

(emphasis supplied) It is apparent from the aforesaid decisions that the Writ Application is maintainable in such a matter even as against the private unaided educational institutions.

16. Learned Senior Counsel relied upon the decision of this Court in Committee of Management, Delhi Public School & Anr. v. M.K. Gandhi & Ors. (supra) wherein the question of termination of services of teachers was involved. The Committee of Management filed a Civil Appeal in this Court against the decision of Allahabad High Court contending that the Delhi Public School, Ghaziabad was not a 'State' within the meaning of Article 12 of the Constitution. The question involved was that termination of service of teachers of a private school without conducting the enquiry was WA.No.1060 OF 2019 & con.case

21

contrary to bye-laws. This Court held that the Writ Application was not maintainable as a private school is not 'State' under Article 12 of the Constitution. It is pertinent to mention here that the question of approval by Government authority was not involved in M.K. Gandhi (Supra). Thus, this decision is distinguishable.

17. In Satimbla Sharma & Ors. v. St. Paul's Senior Secondary School & Ors. (supra) relied upon on behalf of the appellant the question involved was whether an unaided private institution is subject to public law application and to what extent. The concept of equal pay for equal work was invoked for unaided institutions on the basis of parity with respect to the teachers in the Government and Government-aided schools. It was observed that the right to equality enshrined in Articles 14 and 39(d) of Constitution are available against 'State' only. It cannot be claimed against unaided private minority school. The teachers of the government school are paid mostly out of the Government funds and teachers of private unaided schools are paid out of fees and other resources of the private school. No relief can be given in absence of statutory provisions in favour of teachers in unaided private educational institutions. The school in question was not receiving any grant in aid from the Government of Himachal Pradesh and there was a provision in favour of teachers enabling them to claim an equal salary. The decision is wholly distinguishable on facts and proposition of law laid down has different field to operate.

18. Similarly, in Sushmita Basu & Ors. v. Ballygunge Shiksha Samity & Ors. (supra) the appellant was working in a recognised private educational institution in the State of West Bengal. The schools were not receiving grants in aid from the government but were getting dearness allowance component of the approved teachers working in the school. The issue was with respect to the applicability of recommendation of the First Pay Commission and that of Second Pay Commission though there was no statutory provision or even government order directing private unaided educational institutions to implement the recommendations of the Third Pay Commission, they were implemented by the schools as part of their agreement with the teachers. Though the management also implemented the recommendations of the Third Pay Commission in the sense that the salaries of the teachers were hiked in terms of the said report, the institution refused to give retrospective effect to the enhancement. The institution refused to give effect to the recommendations of the Third Pay Commission retrospectively w.e.f. 1.1.1998. Ultimately, this Court observed in Sushmita Basu (supra) that the Writ of Mandamus by the Court issued against the private institutions would be justified only if a public law element is involved.

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19. The factual matrix in Sushmita Basu (supra) was different. It was with respect to the parity with the Government aided institution and the teachers working in unaided institutions and schools were not bound to implement recommendations of Pay Commission. No such proposition is involved in the present matter. Hence, the decision has no application to the instant case.

20. In view of the aforesaid discussion, we have no hesitation to hold that the Writ Application is maintainable as rightly held by the Division Bench of the High Court."

7. It is rather clear from the

aforesaid fact that the judgment of the

Apex Court in Marwari Balika Vidyalaya's

case (supra) stands on a different set of

facts. That was a case in which the school

was receiving grant in the form of Dearness

Allowance from the Government and

appointment of a teacher required approval

from the Educational Authorities of West

Bengal. In the very same judgment, the Apex

Court approved the judgment in Committee of

Management, Delhi Public School v. M.K.

Gandhi [(2015) KHC 5708] wherein the Apex

Court held that Writ Petition was not

maintainable as a private school is not a

State under Article 12 of the Constitution WA.No.1060 OF 2019 & con.case

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and the question of approval by

Governmental authorities was not involved

in M.K Gandhi's case (supra). The said

judgment was therefore distinguished on

facts. The question considered in

M.K.Gandhi's case(supra) was whether the

termination of service of teachers in a

private school without conducting the

enquiry was contrary to bye laws and the

Apex Court held that the Writ Petition was

not maintainable as a private school is not

State under Article 12 of the Constitution.

The present case is also similar to the

judgment in M.K.Gandhi's case (supra).

Therefore, the judgment in Marwari Balika

Vidyalaya's case(supra) is clearly

distinguishable with reference to the facts

of the present case and cannot be applied

to the factual situation.

In the result, we are of the view that

the present Writ Petitions filed against WA.No.1060 OF 2019 & con.case

24

the Central Board of Secondary Education

and the school under it is clearly not

maintainable.

In the result:

(i) W.A No. 1347 of 2019 is dismissed.

(ii) WA No.1060 of 2019 is allowed setting

aside the judgment in WP(C)No.17603/2013

and the Writ Petition stands dismissed.

(iii) The dismissal of the Writ Petitions

shall not preclude the petitioners from

challenging the proceedings against them

before an appropriate forum.

(iv) The final orders regarding the

disciplinary action against the appellant

in WA No.1060/2019 may be kept in abeyance

for a period of 3 weeks from today.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

MARY JOSEPH

JUDGE

Sn //TRUE COPY// PA TO JUDGE