# Nidhi Kaushik & Ors v. Union Of India & Ors

- **Citation:** (2016) 8 ILRA 788
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-11
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nidhi-kaushik-ors-v-union-of-india-ors-44269
- **Pages:** 6

## Headnote

Constitution of India - Article 226 - Writ of Mandamus - Maintainability - Private unaided minority educational
institution - Scope of interference - Writ jurisdiction can be exercised only for enforcement of public duty -
Private law rights or contractual matters not enforceable unless public law element is involved.
Education Law - Right of Children to Free and Compulsory Education Act, 2009 - Claim for free education -
Minority educational institution - Applicability - In view of law laid down by the Supreme Court in Pramati
Educational and Cultural Trust v. Union of India, provisions of the Act of 2009 are not applicable to minority
institutions, whether aided or unaided - Students cannot insist admission or continuation of study free of cost
in such institution.
Admission in School - Students granted opportunity to complete admission formalities - Failure to deposit
prescribed fees and comply with institutional requirements - Petitioners seeking direction to continue studies
without payment of fees - Held, where management had already allowed admission but petitioners failed to
fulfil formalities, Court would not issue mandamus compelling institution to provide education free of cost.
Constitution of India - Article 12 - Private educational institutions - Not 'State' - Writ jurisdiction against such
institutions limited to enforcement of statutory or public duty - Reliance placed on principles laid down in
Federal Bank Ltd. v. Sagar Thomas and other precedents.

Held: Petitioners, who are minor children, sought a direction to allow them to pursue studies in respondent
minority institution without payment of fees under the Right of Children to Free and Compulsory Education
Act, 2009. The institution was declared a minority institution. In view of the judgment of the Supreme Court in
Pramati Educational and Cultural Trust v. Union of India, the provisions of the 2009 Act are not applicable to
minority institutions. Further, petitioners failed to complete admission formalities and deposit fees despite
opportunity granted by the institution. No enforceable public law right being established, writ of mandamus
cannot be issued.

Case Law discussed:
Pramati Educational and Cultural Trust v. Union of India;
Federal Bank Ltd. v. Sagar Thomas;
Praga Tools Corporation v. C.V. Imanual;
8 All. Nidhi Kaushik & Ors. Vs Union Of India & Ors.
789
Andi Mukta Satguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani;
K.K. Saxena v. International Commission on Irrigation and Drainage;
Binny Ltd. v. V. Sadasivan;
M.K. Gandhi v. Director of Education (Secondary), U.P.;
Committee of Management, Delhi Public School v. M.K. Gandhi;
Ramesh Ahluwalia v. State of Punjab;
Vatsal Gupta v. State of U.P.;
Master Satyam Gandhi v. Union Territory, Chandigarh.

Procedure: Petition under Article 226 of the Constitution seeking a direction to respondents to permit
petitioners to pursue studies in Classes XI, IX and VI in respondent institution free of cost under the Right of
Children to Free and Compulsory Education Act, 2009.

Result: Writ Petition dismissed. No order as to costs.

## Text

788 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 788
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2016

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ C No.- 37394 Of 2016

Nidhi Kaushik & Ors. ...Petitioners
Versus
Union Of India & Ors. ...Respondents

Counsel for the Petitioners:
Ram Kumar Dubey

Counsel for the Respondents:
C.S.C., A.S.G.I., Pratik J. Nagar

Headnotes:
Constitution of India - Article 226 - Writ of Mandamus - Maintainability - Private unaided minority educational
institution - Scope of interference - Writ jurisdiction can be exercised only for enforcement of public duty -
Private law rights or contractual matters not enforceable unless public law element is involved.
Education Law - Right of Children to Free and Compulsory Education Act, 2009 - Claim for free education -
Minority educational institution - Applicability - In view of law laid down by the Supreme Court in Pramati
Educational and Cultural Trust v. Union of India, provisions of the Act of 2009 are not applicable to minority
institutions, whether aided or unaided - Students cannot insist admission or continuation of study free of cost
in such institution.
Admission in School - Students granted opportunity to complete admission formalities - Failure to deposit
prescribed fees and comply with institutional requirements - Petitioners seeking direction to continue studies
without payment of fees - Held, where management had already allowed admission but petitioners failed to
fulfil formalities, Court would not issue mandamus compelling institution to provide education free of cost.
Constitution of India - Article 12 - Private educational institutions - Not 'State' - Writ jurisdiction against such
institutions limited to enforcement of statutory or public duty - Reliance placed on principles laid down in
Federal Bank Ltd. v. Sagar Thomas and other precedents.

Held: Petitioners, who are minor children, sought a direction to allow them to pursue studies in respondent
minority institution without payment of fees under the Right of Children to Free and Compulsory Education
Act, 2009. The institution was declared a minority institution. In view of the judgment of the Supreme Court in
Pramati Educational and Cultural Trust v. Union of India, the provisions of the 2009 Act are not applicable to
minority institutions. Further, petitioners failed to complete admission formalities and deposit fees despite
opportunity granted by the institution. No enforceable public law right being established, writ of mandamus
cannot be issued.

Case Law discussed:
Pramati Educational and Cultural Trust v. Union of India;
Federal Bank Ltd. v. Sagar Thomas;
Praga Tools Corporation v. C.V. Imanual;
8 All. Nidhi Kaushik & Ors. Vs Union Of India & Ors.
789
Andi Mukta Satguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani;
K.K. Saxena v. International Commission on Irrigation and Drainage;
Binny Ltd. v. V. Sadasivan;
M.K. Gandhi v. Director of Education (Secondary), U.P.;
Committee of Management, Delhi Public School v. M.K. Gandhi;
Ramesh Ahluwalia v. State of Punjab;
Vatsal Gupta v. State of U.P.;
Master Satyam Gandhi v. Union Territory, Chandigarh.

Procedure: Petition under Article 226 of the Constitution seeking a direction to respondents to permit
petitioners to pursue studies in Classes XI, IX and VI in respondent institution free of cost under the Right of
Children to Free and Compulsory Education Act, 2009.

Result: Writ Petition dismissed. No order as to costs.
(Delivered by Hon'ble Suneet Kumar, J.)

(Delivered by Hon'ble Suneet Kumar, J.)

1. Sri Amit Negi, has put in appearance on behalf of sixth respondent, Sri V.P. Mishra holding brief
of Sri Pratik J. Nagar has put in appearance on behalf of second respondent and learned Standing Counsel has
accepted notice on behalf of respondent nos. 3,4 and 5.

2. On the consent of the parties, the petition is being decided without calling for counter affidavit as
per Rule of the Court.

3. The petitioners, are three in number and are minor children of Vijay Kumar Sharma (Kaushik),
who have approached this Court seeking a direction to the respondents to permit the petitioners to pursue
course of standard XI, IX and VI respectively, with the sixth respondent, Bishop Johnston School & College,
Civil Lines, Allahabad1. The Institution is affiliated with the second respondent, Council for Indian School
Certificate Examinations, New Delhi2. The petitioners would insist that they may pursue their course with the
respondent Institution free of cost pursuant to the provision of Right of Children to Free and Compulsory
Education Act 20093.

4. Sri Negi, learned counsel appearing for the sixth respondent would contend that the institution has
been declared as a minority institution vide communication dated 3 April 2008, issued by the National
Commission for Minority Educational Institutions. The first petitioner is a regular student of the Institution,
she passed her Xth examination, thereafter, was granted admission in XI standard, however, she did not
appear to complete the formalities for admission. The petitioner no. 2 and 3 were studying in some other
institution and had approached the respondent Institution for admission in class IX and VI respectively, which
was allowed by the management though petitioner no. 2 and 3 failed to qualify the entrance examination.
However, considering the fact that they are girl students, their case was considered sympathetically by the
Institution and were granted admission. However, parents of the petitioners did not complete the formalities
for admission despite having being given opportunity, further, the fee prescribed by the Institution for the
respective standard has not yet been deposited.
790 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Sri Negi would further contend that the management of the Institution has no personal grievance
or grudge against the petitioners or their parents, in the event, the petitioners are prepared to comply with the
rules and regulation of the Institution and deposit the course fee regularly, the Institution would have no
grudge against them.

6. Sri Nagar, learned counsel appearing for the affiliating Board would submit that the petition
would not be maintainable against a private institution, reliance is placed on a Full Bench decision rendered
in M.K. Gandhi and others Vs. Director of Education (Secondary), U.P., Lucknow and others4.

7. On a specific query to the learned counsel for the petitioner as to whether petitioners are prepared
to deposit the fee within a stipulated time, learned counsel for the petitioners would contend that the
petitioners intend to deposit the fee but due to certain financial difficulty, they are unable to deposit the fee
immediately, however, the learned counsel would not specify as to when the fee would be deposited. He
would rather insist that under Act 2009, the children upto age of 14 years have a right to pursue education in
the Institution free of cost, therefore, would urge that they may be permitted to study free of cost.

8. Rival submission falls for consideration.

8A. The question that arises for determination is as to whether the petitioners are entitled to free
education under Act 2009?.

9. The contesting parties would not dispute that the Institution is a minority Institution established
and administered by a minority community. Sri Negi would contend that the matter has been settled by the
Constitution Bench of the Hon'ble Supreme Court in Pramati Educational and Cultural Trust Vs. Union
of India5, wherein, it has been held that the provision pertaining to admit 25% of students belonging to
marginalised section of the society would not apply to the minority institution.

10. In Fedral Bank Ltd. v. Sagar Thomas & others6 Supreme Court culled out the categories of
body/ persons who would be amenable to writ jurisdiction of the High Court. This can be found in para 18 of
the judgment, specifying eight categories. Para 18 is extracted:

"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."

11. The Court clarified that though writ can be issued against any private body or person, the scope
of mandamus is limited to enforcement of public duty. It is the nature of duty performed by such person/body
which is the determinative factor as the Court is to enforce the said duty, therefore, the identity of the
authority against whom the right is sought is not relevant. Such duty, the Court clarified, can either be
statutory or even otherwise, but, there has to be public law element in the action of that body.
8 All. Nidhi Kaushik & Ors. Vs Union Of India & Ors.
791
12. Where a person or authority is a '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, even in such
cases writ would not lie to enforce private law rights, therefore, 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. (Ref: ,Praga Tools Corporation v. C.V. Imanual7, Andi
Mukta Satguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others vs.
V.R. Rudani and others8 and K.K. Saxena vs. International Commission on Irrigation and drainage9 and
Binny Ltd. & another v. V. Sadasivan & others10.

13. Full Bench of this Court in M.K. Gandhi, upon considering large number of judgments of the
Supreme Court, opined that private unaided intermediate institution would not be a 'State' within the meaning
of Article 12 of the Constitution, however, the Central Board of Secondary Education11 was held to be a
State within the meaning of Article 12 of the Constitution, therefore, was amenable to the writ jurisdiction.
The service conditions or the contract of service of the teachers appointed by the private school is not
enforceable in writ jurisdiction, the remedy would lie before the competent civil court.

14. The Full Bench decision was challenged before the Supreme Court in Committee of
Management, Delhi Public School & Ors. Vs. M.K. Gandhi & Anr.12, the Court affirmed part of the
judgment holding that the writ petition against Delhi Public School was not maintainable, however, set aside
other part holding that the writ petition is maintainable against the Central Board of Secondary Education
(CBSE).

15. In Ramesh Ahluwalia vs State of Punjab and others13 the petition under Article 226 of the
Constitution against private unaided educational institution was held to be maintainable on the ground of
performance of public functions.

16. In Vatsal Gupta Vs. State of U.P and others14, the Single Judge declined to issue a writ of
mandamus to a private minority unaided institution refusing to grant admission to the student (petitioner
therein) to standard XI for the reason that rules of the institution for admitting the students is not a " positive
obligation based on public law element.........., the fact that a writ petition is maintainable under Article 226 of
the Constitution does not ipso facto lead to the issuance of a writ". The petition was consequently dismissed
as it was held that the admission to standard XI is a fresh admission and not an automatic promotion.

17. In Pramati Educational, the Constitution Bench was called upon to answer the following
reference :

(i) Whether by inserting clause (5) in Article 15 of the Constitution by the Constitution
(Ninety-third Amendment) Act, 2005, Parliament has altered the basic structure or framework of the
Constitution.

(ii) Whether by inserting Article 21A of the Constitution by the Constitution (Eighty-Sixth
Amendment) Act, 2002, Parliament has altered the basic structure or framework of the Constitution.
792 INDIAN LAW REPORTS ALLAHABAD SERIES

18. The Court answered the reference (para-47) holding therein that clause (5) of Article 15 of the
Constitution and the Constitution (Eighty-Sixth Amendment) Act, 2002 inserting Article 21A of the
Constitution do not alter the basic structure or framework of the Constitution and is constitutionally valid,
further, Act, 2009 is not ultra vires to Article 19(1)(g) of the Constitution. However, insofar as Act 2009
applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is
ultra vires the Constitution.

"In the result, we hold that the Constitution (Ninetythird Amendment) Act, 2005 inserting
clause (5) of Article 15 of the Constitution and the Constitution (Eighty-Sixth Amendment) Act, 2002
inserting Article 21A of the Constitution do not alter the basic structure or framework of the Constitution and
are constitutionally valid. We also hold that the 2009 Act is not ultra vires Article 19(1)(g) of the Constitution.
We, however, hold that the 2009 Act insofar as it applies to minority schools, aided or unaided, covered
under clause (1) of Article 30 of the Constitution is ultra vires the Constitution."

19. In view of the statement of law rendered in Pramati Educational, the students cannot insist free
education as a matter of right in a private minority institution being aided or unaided.

20. In Master Satyam Gandhi v. Union Territory, Chandigarh and others15,held as follows:

"Before parting with the order, it goes without saying that the students who study up to
Class X in any school whether aided or non-aided, such students are entitled to get admission in Class XI in
the same school unless he or she declines before the admission is closed. However, in which stream they are
to be admitted, it depends upon their merits and performance that shall be decided by the school authority."

21. The appellant before the Supreme Court was Class X student of a private unaided school
affiliated to CBSE. The Institution refused to grant admission to Class XI in 'medical stream' considering his
academic performance and grades of Class X, however, was offered seat in 'commerce stream' to which the
appellant refused to take admission, consequently, High Court dismissed the petition refusing to grant relief
sought by the appellant by issuing appropriate writ directing the school to admit the appellant even in
commerce stream. The Supreme Court dismissed the appeal, upheld the order of the High Court, but held that
a regular student of the institution is entitled to admission in standard XI, therefore, the observation in Vatsal
Gupta that the admission in class XI is a fresh admission and no writ would lie is in the teeth of Master
Satyam Gandhi case.

22. Having considered the statement of law, since the petitioners themselves have refused to take
admission in the respective standard despite management admitting them, therefore, this Court declines to
interfere in the matter.

23. The petition being devoid of merit is accordingly dismissed.

24. No order as to costs.
-----------
8 All. M/s Simbhaoli Sugar Mills Ltd., Ghaziabad Vs State Of U.P. & Ors.
793
(2016) 8 ILRA 793
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE KAUSHAL JAYENDRA THAKER, J.

Writ Tax No.- 1089 Of 2001

M/s Simbhaoli Sugar Mills Ltd., Ghaziabad ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Neeraj Sharma, B.J. Agarwal, Nikhil Agarwal

Counsel for the Respondents:
C.S.C., Avinash Tripathi, U.S. Awasthi

Procedure:
Writ petition under Article 226 of the Constitution challenging the demand notice/order dated 05.10.2001
issued by the Assistant Excise Commissioner, Simbhaoli Distillery, Ghaziabad demanding penal interest of Rs.
9,25,508.81/- on alleged delayed payment of excise duty relating to transit wastage for the period 1979-80 to
1998-99.

Citation:
M/s Simbhaoli Sugar Mills Ltd. v. State of U.P. & Others, Writ Tax No. 1089 of 2001, decided on
11.08.2016 (All.)

Case Law Discussed:

New Delhi Municipal Committee v. Kalu Ram & Another, (1976) 3 SCC 401
M/s Mohan Meakin Limited v. State of U.P. & Others, Writ (Tax) No. 809 of 2012

Headnote:
Excise Act, 1910 (U.P.) - Section 38-A - Interest on arrears of excise revenue - Liability arises only after
determination and demand.

Excise duty on excess transit wastage becomes "excise revenue" only when it is determined and imposed
by the competent authority in accordance with the relevant rules. The expression "becomes payable" in
Section 38-A means "legally recoverable", i.e., after determination of liability.

Where the Excise Authorities for the first time determined and demanded excise duty on 30.08.2001 for
alleged excess transit wastage relating to the period 1979-80 to 1998-99, and the petitioner deposited the
demanded duty within one month, the amount cannot be treated as arrears attracting interest under Section
38-A.