# ST. MARY'S EDUCATION SOCIETY & ANR v. RAJENDRA PRASAD BHARGAVA & ORS

- **Citation:** [2022] 8 S.C.R. 301
- **Court:** Supreme Court of India
- **Decided:** 2022-08-24
- **Case number:** Civil Appeal No. 5789 of 2022
- **Bench:** Aniruddha Bose, J. B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/st-mary-s-education-society-anr-v-rajendra-prasad-bhargava-ors-36425
- **Pages:** 48

## Headnote

Constitution of India - Art. 226 - CBSE Affiliation Bye laws
1, 2, 23(xi), 25(xii), 26, 27, 44, 46, 49 and 51 - Writ petition -
Maintainability of - Appellant no.1-Society runs a private unaided
minority educational institution - The respondent no.1 was an
employee of appellant - The appellant issued a show cause noticecum-suspension order to the respondent for various alleged
misconduct in service - After the departmental enquiry, the
respondent's services were terminated - The respondent challenged
the termination order before the Disciplinary Committee constituted
by the appellant but the appeal was dismissed - The respondent
then filed a writ petition under Article 226 of the Constitution of
India seeking to set aside the Disciplinary Committee's order and
the termination order - The appellants raised a preliminary objection
on the maintainability of the writ petition - Single Judge of High
Court rejected the writ application as not being maintainable - On
appeal, the Division bench of High Court set aside the judgment of
the Single Judge and held writ petition maintainable - On appeal,
held: The power of judicial review under Article 226 of the
Constitution of India can be exercised by the High Court even if the
body against which an action is sought is not a state or an authority
or an instrumentality of the state, but there must be a public element
in the action complained of - Further held, an application u/Art.
226 of the Constitution is maintainable against a person or body
discharging public duties or functions -However, for an educational
institution to be subject to judicial review, the act complained of
must have a direct nexus with the discharge of public duty -
Furthermore, employees of such institutions cannot invoke Article
226 in matters relating to service if they are not governed by statutory
provisions - A writ petition under Article 226 cannot be invoked
for individual wrongs or breach of mutual contracts without a public
law element - In the case at hand, the action challenged had no
[2022] 8 S.C.R. 301
301
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public element, and a writ of mandamus cannot be issued as the
action was essentially of a private character - Writ application
rejected on the ground of maintainability - Order passed by Division
Bench of High court set aside.
Allowing the appeal, the Court,
HELD:1. Final conclusions are as under:
(a) 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.
(b) 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 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.
(c) It must be consequently held that while a body may be
discharging a public function or performing a public duty and thus
its actions becomi

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ST. MARY'S EDUCATION SOCIETY & ANR.
v.
RAJENDRA PRASAD BHARGAVA & ORS.
(Civil Appeal No. 5789 of 2022)
AUGUST 24, 2022
[ANIRUDDHA BOSE AND J. B. PARDIWALA, JJ.]
Constitution of India - Art. 226 - CBSE Affiliation Bye laws
1, 2, 23(xi), 25(xii), 26, 27, 44, 46, 49 and 51 - Writ petition -
Maintainability of - Appellant no.1-Society runs a private unaided
minority educational institution - The respondent no.1 was an
employee of appellant - The appellant issued a show cause noticecum-suspension order to the respondent for various alleged
misconduct in service - After the departmental enquiry, the
respondent's services were terminated - The respondent challenged
the termination order before the Disciplinary Committee constituted
by the appellant but the appeal was dismissed - The respondent
then filed a writ petition under Article 226 of the Constitution of
India seeking to set aside the Disciplinary Committee's order and
the termination order - The appellants raised a preliminary objection
on the maintainability of the writ petition - Single Judge of High
Court rejected the writ application as not being maintainable - On
appeal, the Division bench of High Court set aside the judgment of
the Single Judge and held writ petition maintainable - On appeal,
held: The power of judicial review under Article 226 of the
Constitution of India can be exercised by the High Court even if the
body against which an action is sought is not a state or an authority
or an instrumentality of the state, but there must be a public element
in the action complained of - Further held, an application u/Art.
226 of the Constitution is maintainable against a person or body
discharging public duties or functions -However, for an educational
institution to be subject to judicial review, the act complained of
must have a direct nexus with the discharge of public duty -
Furthermore, employees of such institutions cannot invoke Article
226 in matters relating to service if they are not governed by statutory
provisions - A writ petition under Article 226 cannot be invoked
for individual wrongs or breach of mutual contracts without a public
law element - In the case at hand, the action challenged had no
[2022] 8 S.C.R. 301
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public element, and a writ of mandamus cannot be issued as the
action was essentially of a private character - Writ application
rejected on the ground of maintainability - Order passed by Division
Bench of High court set aside.
Allowing the appeal, the Court,
HELD:1. Final conclusions are as under:
(a) 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.
(b) 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 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.
(c) 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
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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.
(d) Even if it be perceived that imparting education by
private unaided the 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 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.
(e) 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 character. [Para 68][346-B-H; 347A-E]
Marwari Balika Vidhyalaya v. Asha Shrivastaga, (2020)
14 SCC 449 : [2019] 2 SCR 722 - distinguished.
Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC
331 : [2012] 12 SCR 315; Executive Committee
ST. MARY'S EDUCATION SOCIETY v. RAJENDRA PRASAD
BHARGAVA
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of Vaish Degree College v. Lakshimi Narain, (1976) 2
SCC 58 : [1976] 2 SCR 1006; In Km. Regina v. St.
Aloysins High Elementary School and Another, (1972)
4 SCC 188 : [1971] Suppl. SCR 6 : AIR 1971 SC 1920,
Km. Anita Verma v. D.A.V. College Management
Committee, Unchahar, Rai Bareilly, (1992) 1 UPLBEC
30; Satimbla Sharma v. St. Pauls Senior Secondary
School [(2011) 13 SCC 760 : [2011] 10 SCR 203;
K. Krishnamacharyulu v. Sri Venkateshwara Hindu
College of Engineering, (1997) 3 SCC 571 : [1997] 2
SCR 368; Binny Ltd. and Another v. V. Sadasivan and
Others, (2005) 6 SCC 657 : [2005] 2 Suppl. SCR 421;
Apollo Tyres Ltd. v. C.P. Sebastian, (2009) 14 SCC 360
: [2009] 7 SCR 336; K.K. Saksena v. International
Commission on Irrigation and Drainage and Others,
(2015) 4 SCC 670 : [2014] 14 SCR 892; Shri Anadi
Mukta Sadguru Shree Muktajee Vandasjiswami
Suvarna Jayanti Mahotsav Smarak Trust & Ors. v. V.R.
Rudani & Ors. (1989) 2 SCC 691 : [1989] 2 SCR 697;
G. Bassi Reddy v. International Crops Research Institute
& Anr., (2003) 4 SCC 225 : [2003] 1 SCR 1174; Praga
Tools Corporation v. Shri C.A. Imanual, (1969) 1 SCC
585 : [1969] 3 SCR 773; Federal Bank Ltd. v. Sagar
Thomas, (2003) 10 SCC 733 : [2003] 4 Suppl. SCR
121; Janet Jeyapaul v. SRM University & Ors., 2015
(13) SCALE 622; Committee of Management, Delhi
Public School & Anr. v. M.K. Gandhi, (2015) 17 SCC
353; Trigun Chand Thakur v. State of Bihar & Ors.,
(2019) 7 SCC 513; Roychan Abraham v. State of U.P.,
AIR 2019 All 96; S. K. Varshney v. Principal, Our Lady
of Fatima H.S.S., in the Civil Appeal Nos. 8783-8784
of 2003 dated July 19, 2007(decided by Supreme
Court of India); case of Vidya Ram Misra v. The
Managing Committee Shri Jai Narain College, (1972)
1 SCC 623 : [1972] 3 SCR 320 : AIR 1972 SC 1450;
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8
SCC 481: [2002] 3 Suppl. SCR 587; Ahmedabad St.
Xavier's College Society v. State of Gujarat, (1974) 1
SCC 717 : [1975] 1 SCR 173; Unnikrishnan P.J. v.
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State of A.P., (1993) 4 SCC 111 : 1993 (3) SCALE 248;,
Sushmita Basu v. Ballygunge Siksha Samity, (2006) 7
SCC 680 : [2006] 6 Suppl. SCR 506; Ramakrishnan
Mission v. Kago Kunya, (2019) 16 SCC 303 : [2019] 5
SCR 452; Uttam Chand Rawat v. State of U.P., (2021) 6
All LJ 393 (FB) - referred to.
Case Law Reference
[2019] 2 SCR 722
distinguished
Para 13
[2012] 12 SCR 315
referred to
Para 13
[1976] 2 SCR 1006
referred to
Para 28
[1971] Suppl. SCR 6
referred to
Para 31
[2011] 10 SCR 203
referred to
Para 34
[1997] 2 SCR 368
referred to
Para 34
[2005] 2 Suppl. SCR 421
referred to
Para 34
[2009] 7 SCR 336
referred to
Para 34
[2014] 14 SCR 892
referred to
Para 35
 [1989] 2 SCR 697
referred to
Para 36
[2003] 1 SCR 1174
referred to
Para 36
[1969] 3 SCR 773
referred to
Para 36
[2003] 4 Suppl. SCR 121
referred to
Para 36
1972] 3 SCR 320
referred to
Para 48
[2002] 3 Suppl. SCR 587
referred to
Para 52
[1975] 1 SCR 173
referred to
Para 52
[2006] 6 Suppl. SCR 506
referred to
Para 55
[2019] 5 SCR 452
referred to
Para 62
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5789
of 2022.
From the Judgment and Order dated 15.12.2021 of the High Court
of Madhya Pradesh at Indore in Writ Appeal No.485 of 2017.
ST. MARY'S EDUCATION SOCIETY v. RAJENDRA PRASAD
BHARGAVA
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Pai Amit, Rohit R. Saboo, Ms. Pankhuri Bhardwaj, Advs. for the
Appellants.
Rupesh Kumar, Rajeev Sharma, Ms. Pankhuri Shrivastava,
Ms. Neelam Sharma, Advs. for the Respondents.
Rajendra Prasad Bhargava, in-person.
The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
1. Leave granted.
2. This appeal is at the instance of a private unaided minority
educational institution and its disciplinary committee, (respondents before
the High Court) and is directed against the judgment and order dated
15.12.2021 passed by a Division Bench of the High Court of Madhya
Pradesh, Bench Indore in the Writ Appeal No. 485 of 2017 by which the
Division Bench set aside the judgment and order passed by a learned
single Judge of the High Court and held that a writ petition filed by an
employee of a private unaided minority educational institution seeking to
challenge his termination from service is maintainable in law.
3. In the present appeal, two pivotal issues fall for consideration
of this Court:-
(a) Whether a writ petition under Article 226 of the Constitution
of India is maintainable against a private unaided minority
institution?
(b) Whether a service dispute in the private realm involving a
private educational institution and its employee can be adjudicated
in a writ petition filed under Article 226 of the Constitution?
In other words, even if a body performing public duty is amenable
to writ jurisdiction, are all its decisions subject to judicial review or
only those decisions which have public element therein can be
judicially reviewed under the writ jurisdiction?
4. The aforesaid two questions, though not vexed, nevertheless
despite plethora of case laws, always give rise to a debate.
FACTUAL MATRIX
5. The appellant No. 1-Society runs a private unaided educational
institution. The appellant No. 2 is the disciplinary committee constituted
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by the appellant No. 1-Society for the purpose of its internal management.
The respondent No. 1 herein (original writ applicant before the learned
single Judge) was serving as an office employee of the appellant No. 1.
It appears from the materials on record that a show cause notice-cumsuspension order dated 08.09.2014 was issued by the appellant No. 1
herein to the respondent No.1 for the various alleged misconduct in
service. The respondent No. 1 herein was thereafter issued a
departmental chargesheet dated 08.12.2014 essentially on six grounds.
6. The statement of charges and allegations as contained in the
chargesheet dated 08.12.2014 are as under:-
"Charge IThat, you refused to receive and deposit the PTA fund from
the lady teachers of the school on 4th August, 2014 and
misbehaved with them. You talked to them rudely, loudly and
your language was improper. Your refusal to receive and
deposit the amount during the working hours is a gross
misconduct and dereliction of your duty and act subversive
of discipline.
Charge-IIThat, you are in habit of writing unwarranted letters to
different authorities against the Principal of the school using
very disrespectful, derogatory and offensive language,
making false accusation which is spoiling the image and
reputation of this school.
Charge-IIIThat, you have threatened and pressurized the institution by
closing your Bank Account in which your monthly salary was
being deposited for the last so many years. You also actually
refused to accept and receive your monthly salary for the
month of August, 2014, which was offered to you by cheque
personally on 01.09.2014. In the following month the salary
from 1st to 8th September and 9th to 30th September as
Subsistence Allowance was also offered to you by cheque on
01.10.2014 which you refused to accept again, saying that-
"I will take the subsistence allowance but until and unless I
get justice ..." (Letter dated 10.10.2014).
ST. MARY'S EDUCATION SOCIETY v. RAJENDRA PRASAD
BHARGAVA [J. B. PARDIWALA, J.]
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Your refusal to accept the salary shows that you do
not wish to continue the relationship of employer - employee
with the school because the school cannot take your service
without paying your salary.
Charge-IVThat earlier also your rude behavior with the Principal of
the school was noticed for which you were warned and
advised to improve your behavior and talk politely. However,
no improvement has been shown by you in your behavior.
You have misbehaved with the two earlier Principals also
namely: (1) Sr. Lalita (Letter dated 17.04.2009) and (2) Sr.
Flavia.
Charge-VThat, you were threatening the institution by writing to the
President of our country that if something happens to you
physically or mentally on work due to such behavior at home
the sole responsibility of it would be on the School
Management, the Principal and the various authorities. This
behaviour has compelled the school to complain to the police
regarding your threat.
Charge-VIThat, you are in the habit of taking leaves at will and insisting
on taking leave at your sole convenience, sometimes without
any sanction also."
After conclusion of the departmental enquiry, the services of the
respondent No. 1 came to be terminated vide order dated 08.05.2015.
7. The respondent No. 1 herein challenged the order of termination
on various grounds in appeal before the Disciplinary Committee of the
appellant No. 1. The appeal was filed by the respondent No. 1 herein
under Rule 49 of the CBSE Affiliation Byelaws. The Disciplinary
Committee consisted of (i) Sr. M. Deepa, Chairman, (ii) Sr. M. Georgina,
School Manager, (iii) S.N. Purwar, Advisor CBSE Nominee, and (iv)
Sadhna Paranjape, School Managing Committee Member. The appeal
was ordered to be dismissed by the Disciplinary Committee, the appellant
No. 2 herein, vide order dated 23.09.2016.
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8. In view of the aforesaid, the respondent No. 1 invoked the writ
jurisdiction of the High Court under Article 226 of the Constitution of
India. In the writ petition, the respondent No. 1 arrayed the following
five respondents:-
1. Union of India
2. Central Board of Secondary Education
3. St. Mary's Education Society
4. Disciplinary Committee of the School
5. Mr. T.R. Lapalikar (retired Deputy Labour Commissioner
appointed as Enquiry Officer)
9. It is pertinent to note that despite the above five respondents
being arrayed as aforestated, the principal relief sought in the writ petition
filed by the respondent No. 1 herein was to set aside the order dated
23.09.2016 passed by the Disciplinary Committee of the school and to
set aside the order of termination dated 08.05.2015 passed by the appellant
No. 1 herein. In other words, the respondent No.1 herein sought writ in
the nature of certiorari to be issued against the private unaided minority
institution. It may not be out of place to state at this stage that no relief
was sought against the Union of India, respondent No. 2 herein and the
Central Board of Secondary Education (CBSE), respondent No. 3 herein.
10. The appellants herein raised a preliminary objection before
the learned single Judge of the High Court on the maintainability of the
writ petition filed by an employee of a private unaided minority institution.
11. The learned single Judge of the High Court upheld the
preliminary objection raised by the appellants herein and rejected the
writ application as not being maintainable. While rejecting the writ
application vide order dated 10.07.2017 on the ground of not being
maintainable in law, the learned single Judge held as under:-
"So far as the judgment in the matter of K. Krishnamacharyulu
(supra) relied upon by the petitioner is concerned, in that
case in respect of teachers duly appointed to a post in the
private institution, it has been held by the Supreme Court that
when an element of public interest is created and institution
is catering to that element, the teacher, the arm of the
institution is also entitled to avail of remedy provided under
ST. MARY'S EDUCATION SOCIETY v. RAJENDRA PRASAD
BHARGAVA [J. B. PARDIWALA, J.]
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Article 226. In the present case, petitioner is not a teacher
but is a member of clerical staff being L.D.C., hence he is not
entitled to the benefit of that judgment.
So far as the judgment in the matter of Frank Anthony Public
School Employees Association(supra) is concerned, that was
a case where the teachers had approached the court for writ
of mandamus seeking equalisation of their pay scales and
condition of service with those of their counterparts in
government schools and in that context it was observed that
'the management of a minority Educational institution cannot
be permitted under the guise of the fundamental right
guaranteed by Article 30(1) of the Constitution, to oppress
or exploit its employees any more than any other private
employee, therefore the said judgment is distinguishable on
its own facts.
Similarly the benefit of Single Bench judgment of this court
in the matter of Mrs. Kirti Bugde (supra) cannot be granted
to the petitioner because in that judgment the petitioner was
a teacher and a member of the academic staff but that is not
so in the present case.
Having regard to the aforesaid, I am of the opinion that writ
petition filed by the petitioner for issuance of writ of certiorari
against the action of respondent No.3 which is a private
unaided institution is not maintainable under Article 226 of
the Constitution of India, which is accordingly dismissed,
however with a liberty to the petitioner to avail such other
remedies as are available in the law."
12. Being aggrieved with the aforesaid judgment and order passed
by the learned single Judge of the High Court, the respondent No. 1
herein went in appeal under Section 2(1) of the M.P. Uchcha Nyayalaya
(Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005. The Division Bench
of the High Court thought fit to set aside the judgment and order passed
by the learned single Judge and allowed the appeal holding that the writ
application filed by the respondent No.1 herein against the appellants
herein challenging the order of termination from service was maintainable
under Article 226 of the Constitution. The appeal Court remitted the
matter to the learned single Judge for being considered on its own merits.
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The Division Bench, while allowing the appeal filed by the respondent
No. 1 herein, held as under:-
"11. Since all the aforesaid previous judgments have been
considered, the judgment of Marwari (supra) is a binding
precedent. The present appellant was terminated from a
private institution. In Marwari (supra) and Ramesh Ahluwalia
(supra) also the termination of Teacher/Officer was called in
question in a writ petition. As per this judgment, the writ petition
is maintainable. A division bench of this Court in Yogendra
Singh Dhakad Vs. Delhi Public School Society & Ors. 2014
SCC OnLine MP 162 has also taken the same view. So far as
the judgment of Supreme Court in Executive Committee of
Vaish Degree College, Shamli & Ors. Vs. Lakshmi Narain &
Ors. (1976) 2 SCC 58 is concerned, it is not applicable to the
present case as it did not arise out of a writ petition.
12. Considering the aforesaid, order of learned Single Judge
dated 10.07.2017 passed in WP No.1052/2017 is set aside.
The writ petition is restored to its original number. We have
no doubt that writ court shall make every endeavor to decide
the petition expeditiously preferably within two months.
13. The writ appeal is allowed to the extent indicated above."
13. It appears from the aforesaid that the appeal court heavily
relied upon the decision of this Court rendered in the case of Marwari
Balika Vidhyalaya v. Asha Shrivastaga, reported in (2020) 14 SCC
449, which, in turn, has relied upon its decision in the case of Ramesh
Ahluwalia v. State of Punjab, reported in (2012) 12 SCC 331.
14. In view of the aforesaid, the appellants are before this Court
with the present appeal.
LEGAL STATUS OF THE APPELLANT NO. 1 - SOCIETY
15. The appellant No. 1 is a Society registered under the Madhya
Pradesh Society Registrikaran Adhiniyam, 1973. The Society runs an
all-girls school in Mhow, Indore, Madhya Pradesh, by the name St. Mary's
Higher Secondary School, which was founded by a group of French
Catholic Nuns in 1893. The school is a private unaided minority educational
institution, which enjoys the protection guaranteed under Article 30(1)
of the Constitution. There is absolutely no Governmental control over
ST. MARY'S EDUCATION SOCIETY v. RAJENDRA PRASAD
BHARGAVA [J. B. PARDIWALA, J.]
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the functioning and administration of the school. The respondent No. 1
herein was employed in this school prior to his termination. The school is
presently affiliated to the Central Board of Secondary Education (CBSE)
and is thus governed by its Rules and Byelaws. Further, the Society has
its own Byelaws, namely, (1) the Service Conditions for the Employees
of St. Mary's School and (2) Service Rules for Teaching and NonTeaching Staff. The appellant No. 1-Society and the school are absolutely
private institutions, without any aid or control of the Government or any
instrumentality of the Government, and therefore, not a "State" within
the meaning of Article 12 of the Constitution.
16. CBSE-i AFFILIATION BYELAWS
Chapter- I
1. Short Title and Definitions:
1. These Byelaws shall be called Central Board of Secondary
Education - International Affiliation Byelaws.
2. They are effective from April, 1, 2010 with modifications /
amendments from time to time.
3. In case of any dispute(s) regarding the withdrawal of not
granting affiliation or any other matter pertaining to upgradation
and /or any matter arising in respect of anything pertaining to
affiliation with any school and / or any other person, society,
company or organization , the courts and tribunals at Delhi only
shall have the exclusive jurisdiction to entertain such disputes.
2. Definitions:
(i) "Affiliation" means formal enrolment of a school among
the list of approved schools of the Board following prescribed
/ approved courses of studies up to class VIII as well as those
preparing students according to prescribed courses for the
Board's International Curriculum examinations.
x
x
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x
(xxxxii) "School" means any recognized school imparting
elementary / middle / secondary /senior secondary level
education and includes:
(i) a school established, owned or controlled by the
appropriate Government or a local authority;
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(ii) an aided school receiving aid or grants to meet whole or
part of its expenses from the appropriate Government or the
local authority;
(iii) a school belonging to specified category; and
(iv) an unaided school not receiving any kind of aid or grants
to meet its expenses from the appropriate Government or the
local authority.
Chapter-6
23. Powers and functions of the School Managing Committee:
(xi) It shall exercise powers to take disciplinary action against
staff.
25. Head of the School - Duties, Powers and Responsibilities:
(xii) Supervise, guide and control the work of the teaching
and non- teaching staff of the school.
Chapter -7
Service Rules for Employees:
26. Short Title:
(1) Each school affiliated/ to be affiliated with the Board shall
frame Service Rules for its employees which will be as per
Education Act of the State/ Union Territory, if the Act makes
adoption of the same obligatory, otherwise as per Service
Rules given in subsequent sections.
(2) Service Contract will be entered with each employee as
per the provision in the Education Act of the State / Union
Territory or as given in Appendix III, if not obligatory as per
the State Education Act / Act applicable in the country in which
the school is situated.
27. Appointments:
(1) All appointments to all categories of employees except
Group 'D' employees (multitasking staff/ housekeeping) as
per relevant country/Government of India gradation shall be
made by Managing Committee either by direct recruitment or
by promotion through a Selection Committee constituted by
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the School Society/Trust/Company Registered under Section
25 of the Companies Act, 1956 or under the appropriate Acts
of relevant country and in accordance with and upon such
conditions as the Managing committee may decide, which shall
be consistent with norms of the Board / Government if statutory
provision exists. Appointment of Group 'D' employees will be
made by the Principal through constituted Selection
Committee.
(2) The Selection Committee shall include
a) In the case of recruitment of the Head of the School:
(i) the President of the Society;
(ii) the Chairman of the Managing Committee;
(iii) an educationist, nominated by the managing committee;
(iv) a person having experience of administration of schools,
nominated by the Managing Committee; and
(v) an academic officer or representative of the Board.
b) In the case of recruitment of teachers and librarian:
(i) the Chairman of the managing committee;
(ii) Head of the School;
(iii) an educationist, nominated by the managing committee;
and
(iv) a subject expert
c) In the case of recruitment of clerical staff / Laboratory
Assistant:
(i) The Chairman of the managing committee or any member
of the managing committee nominated by the Chairman.
(ii) Head of the school;
(iii) Manager/ Correspondent of the School
d) In case of recruitment of class IV staff / multitasking staff/
housekeeping staff:
(i) Head of the school;
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(ii) A nominee of School Managing Committee.
(3) The Selection Committee shall regulate its own procedure
and in the case of any difference of opinion amongst the
members of the Selection Committee on any matter, it shall be
decided by the trust / society running the school or Board.
(4) The appointment letters of every employee of a school
shall be issued by its managing committee.
(5) Where any selection made by the Selection Committee is
not acceptable to the managing committee of the school, the
managing committee shall record its reason for such
nonacceptance and refer the matter to Board and the trust or
society or Company registered under Section 25 of the
Companies Act, 1956 or under the appropriate Acts of
relevant country running the school and the trust or society,
as the case may be, shall decide the same.
(6) Employees shall be appointed subject to the provisions of
this agreement and they shall have to comply with all the
requirements of the provisions contained herein.
44. Code of Conduct:
Byelaw number 44 of the Chapter-7 prescribes that every
employee shall be covered by the code of conduct. It
prescribes the acts that constitute breach of code of conduct,
the acts which shall not be deemed as a breach is a code of
conduct.
46. Disciplinary Procedure:
Suspension
1. The School Managing Committee may place an employee
under suspension where:
a. The disciplinary proceedings against her are contemplated
or pending.
Or
b. A case against her in respect of any criminal offence is
under investigation or trial;
Or
ST. MARY'S EDUCATION SOCIETY v. RAJENDRA PRASAD
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c. She is charged with embezzlement;
Or
d. She is charged with cruelty / physical punishment or mental
harassment towards any student or any employee of the school.
Or
e. She is charged with misbehavior towards any parent,
guardian student or employee of the school;
Or
f. She is charged with a breach of any other Code of Conduct.
49. Procedure for Imposing Major Penalty:
1. No order imposing on any employee any major penalty
shall be made except after an inquiry is held as far as may
be, in the manner specified below:
a) The disciplinary authority shall frame definite charges on
the basis of the allegation on which the inquiry is proposed
to be held and a copy of the charges together with the
statement of the allegations on which they are based shall be
furnished to employee and she shall be required to submit
within such time as may be specified by the disciplinary
authority but not later than two weeks, a written statement of
her defence and also to state whether she desires to be heard
in person;
b) On receipt of the written statement of defence, or where no
such statement is received within the specified time, the
disciplinary authority may itself make inquiry in to such of
the charges as are not admitted or if it considers it necessary
to do so, appoint and inquiry officer for the purpose;
c) At the conclusion of the enquiry the enquiry officer shall
prepare a report of the enquiry recording her findings on
each of the charges together with the reasons thereof;
d) The disciplinary authority shall consider the report of the
enquiry and record its findings on each charge and if the
disciplinary authority is of opinion that any of the major
penalties should be imposed it shall:
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(i) furnish to the employee a copy of the report of the enquiry
officer, where an enquiry has been made by such officers;
(ii) give her notice in writing stating the action proposed to
be taken in regard to her and calling upon her to submit within
the specified time, not exceeding two weeks, such
representation as she may wish to make against the proposed
action;
(iii) on receipt of the representation if any, made by the
employee, the disciplinary authority shall determine what
penalty, if any should be imposed on the employee and
communicate its tentative decision to impose the penalty to
the Committee for its prior approval;
(iv) after considering the representation, made by the
employee against the penalty, the disciplinary authority shall
record its findings as to the penalty, which it proposes to
impose on the employee and send its findings and decision to
the Committee for its approval and while doing so the
disciplinary authority shall furnish to the employee all relevant
records of the case including the statement of allegations,
charges framed against the employee, representation made
by the employee, a copy of the enquiry report, where such
enquiry was made and the proceedings of the disciplinary
authority.
2. No order with regard to the imposition of a major penalty
shall be made by the disciplinary authority except after the
receipt of the approval of the Committee.
51. Disciplinary Committee:
1. In case the employee wishes to appeal against the order of
the Disciplinary authority, the appeal shall be referred to a
Disciplinary Committee. The Disciplinary Committee shall
consist of the following:
a) The Chairman of the School Managing committee or in
her absence any member of the Committee, nominated by her.
b) The Manager of the School, and where the disciplinary
proceeding is against her any other person of the Committee
nominated by the Chairman.
ST. MARY'S EDUCATION SOCIETY v. RAJENDRA PRASAD
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c) A nominee of the Board appropriate authority, She shall
act as an adviser.
d) The Head of the School, except where the disciplinary
proceedings is against her, the Head of any other school
nominated by the CBSE or Director of Education in case the
Act so provides.
e) One teacher who is a member of School Managing
Committee of the school nominated by the Chairman of the
Committee.
2. The Disciplinary Committee shall carefully examine the
findings of the enquiry officer reasons for imposing penalty
recorded by the Disciplinary Authority and the representation
by the employee and pass orders as it may deem fit.
Appendix-IV attached to the Byelaws is with respect to the
minority educational institutions. Clause 6 of Appendix-IV reads
thus:-
"6. Disciplinary Control over Staff in Minority Educational
Institutions: While the managements should exercise the
disciplinary control over staff, it must be ensured that they
hold an inquiry and follow a fair procedure before punishment
is given. With a view to preventing the possible misuse of power
by the management of the Minority Educational Institutions,
the State has the regulatory power to safeguard the interests
of their employees and their service conditions including
procedure for punishment to be imposed."
(Emphasis supplied)
SUBMISSIONS ON BEHALF OT THE APPELLANTS
17. Mr. Pai Amit, the learned counsel appearing for the appellants,
vehemently submitted that the Division Bench of the High Court
committed a serious error in passing the impugned judgment and order.
He would submit that the learned single Judge of the High Court rightly
took the view that the writ petition filed by the respondent No.1 herein
seeking to challenge the order of termination passed by the appellant
No. 1 herein could not be said to be maintainable in law. He would
submit that the Division Bench of the High Court in an intra-court appeal
ought not to have taken the view that the writ petition under Article 226
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of the Constitution at the instance of the respondent No. 1 herein was
maintainable before the learned single Judge.
18. Mr. Pai would submit that the Division Bench of the High
Court mis-directed itself by relying upon the two decisions of this Court
rendered in the cases of Ramesh Ahluwalia (supra) and Marwari
Balika Vidhyalaya (supra).
19. Mr. Pai laid much stress on the following three aspects of the
matter:-
(a) Indisputably, the appellant No. 1 is a private unaided minority
educational institution;
(b) The dispute between the appellants and the respondent No. 1
herein is purely contractual in nature and does not involve any
public law element, and
(c) The respondent No.1 herein has sought relief only against the
two orders of termination and both of which have been passed
by the appellant No. 1 in its capacity as a private body.
20. In such circumstance referred to above, Mr. Pai prays that
there being merit in his appeal, the same may be allowed and the impugned
order passed by the Division Bench of the High Court may be set aside.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
NO. 1
21. The respondent No. 1 herein appeared virtually in-person. He
relied upon the written submissions furnished by him to this Court. In his
written submissions dated 10.08.2022, he has mainly stated as under:-
"That the respondent no. 1 (Rajendra Prasad Bhargava) is
filing this Written Notes as per this Hon'ble Court's Order
Dated:08.08.2022 seeking that the judgment and final order
dated: 15.12.2021 of the Hon'ble High Court of Madhya
Pradesh, Bench at Indore in Writ Appeal No. 485/2017 kindly
be upheld whereby the writ petition of Respondent No. 1 was
maintainable.
That the Respondent No. 1 was working in St. Mary's Hr. Sec.
School, Mhow (M.P.) run by the appellant namely St. Mary's
Education Society, serving as a LDC since July 1, 1987. That,
the respondent no. 1 has performed his duty honestly, diligently,
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allegiance (loyalty) and with hard work during his 27 years
of service and there is no adverse remark in his Service Book
and Annual Confidential Roll. That, as far as the respondent
no. 1 has knowledge and information, on the basis of that
the respondent no. 1 humbly prays to this Court that:
I) Mandamus is a very wide remedy which must be available
to reach injustice wherever it is found. Technicalities should
not come in the way of granting that relief under Article 226.
"A word is said to be mandatory as well as defining in nature
when the word MUST is used in meaning of that word."
As the word "MUST" is used in the aforesaid statement about
the mandamus by this Hon'ble Court, the mandamus becomes
mandatory as well as defining in nature. Hence it is proved
that 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.
I (Respondent No. 1), therefore, humbly pray to this Hon'ble
Supreme Court that kindly reject the contention urged by the
appellant on the maintainability of the writ petition and to
kindly upheld the Impugned judgment and final order dated:
15.12.2021 rightly and legally held by the Hon'ble High Court
of Madhya Pradesh, Bench at Indore in Writ Appeal No. 485
of 2017.
1. Kindly read page No. 2 and 3 of Reply to the SLP.
OR
Kindly read page No. 76 and 77 of Reply to the SLP (Annexure
R-2 Ramesh Ahluwalia case reported in (2012) 12 SCC 331).
2. Kindly read Para 20 on page No. 89, Para 21 on page No.
89-90 and Para 22 on page No. 90 of Reply to the SLP
(Annexure R-3 Andi Mukta case reported in 1989 AIR 1607)
(1989) 2 SCC 691
3. Kindly read page No. 6 and 7 of Reply to the SLP.
OR
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Kindly read Para 15 on page No. 97, 98 and 99 of Reply to
the SLP (Annexure R-4 Marwari Balika Vidhyalya Case
reported in (2020) 14 SCC 449.
4. Kindly read page No. 49 of SLP (Annexure P-5 Yogendra
Singh Dhakad versus Delhi Public School Society, 2014 SCC
Online MP 162: AIR 2014 (NOC 580) 211."
22. In his written submissions, the respondent No. 1 has also
requested this Court to consider the following social circumstances:-
"i) That, my youngest son Ashwin Bhargava is suffering from
Cancer of Nasopharanx (Rare type of Head and Nose
Cancer) and I'm facing severe financial difficulties in his
medical treatment.
ii) That, my wife Smt. Sunita Bhargava, 53 years has been
operated upon for Carnio Vertebral Junction Anamoly on
25.12.2021. She has been discharged on 02.01.2022 and still
completely on bed. Her medication is still going on through
physiotherapy and regular follow up for future periodic
evaluation.