SC: Service Cases Resulting from Contracts Without Statutory Force Are not Reviewable Under Article 226

Supreme Court Law Insider

Aastha Thakur

Published on: 05 September 2022, at 21:11 IST

The Supreme Court recently held that decisions of public interest can be reviewed under writ jurisdiction by the High Courts. Therefore, decisions related to service contract in association with educational institutions are not part of the writ jurisdiction under Article 226 of the Constitution.

The division bench of Justices Aniruddha Bose and JB Pardiwala, agreed with the decision given by the Bench of Madhya Pradesh HC that employee of private educational institution challenging the termination from his service was not maintainable in law.

The Hon’ble Justice Pardiwala objected that even the body is performing the public duty still all its decisions do not come under the purview of judicial review.

The Judge was of the view that, “Only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction. If the action challenged does not have the public element, a writ of mandamus cannot be issued as the action could be said to be essentially of a private character,” 

After exhaustive hearing sessions from both sides, the Court concluded that:

  • Application filed 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. For determining 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;
  • Even if it be assumed that an educational institution is imparting public duty, the act complained should show direct relation with the discharge of public duty. It is not arguable that public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a limited jurisdiction. 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;
  • It must be held that even though a body may be carrying out a public duty or performing a public function, which makes its decisions subject to judicial review by a Constitutional Court, its employees would not have the right to rely on the High Court’s authority granted by Article 226 with regard to matters relating to their employment when those matters are not governed or controlled by the statutes.
  • Educational body performs various functions indulging into various facets of public life and in the societal sphere.  The actions or decisions made 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, even though those functions that would fall within the purview of a “public function” or “public duty” are unquestionably open to challenge and scrutiny under that provision.
  • Even if it be assumed that teaching by private unaided school comes within the term of public duty, an employee of a non-teaching staff engaged under administration or internal management working will be only seen as agency created by it.
  • In any event, the obligations to provide education cannot and should not be understood as being inseparably linked to the terms of employment or contracts between a school and non-teaching employee. This is especially true with regard to any disciplinary actions that could be taken against a specific employee. The court may only become involved when the dismissal of a member of the non-teaching staff violates specific legislative provisions and is committed by the employer. However, rather of interfering with the performance of a public responsibility, such interference will be based on a legal violation.

Background and judgment

The case initially begins when the respondent for his various misconduct was served show cause notice cum suspension by the appellate-private unaided education institution.

After departmental enquiry, his service was terminated, the appeal filed by the respondent was also dismissed by the Disciplinary Committee. Aggrieved then approached the HC which set aside the order of the disciplinary committee.

The order of High Court was challenged before the Division Bench who held that the writ filed by the petitioner against his termination was maintainable.

The question of law raised before the Supreme Court was to decide whether a service dispute involving private educational institution and its employee could be adjudicated in writ jurisdiction.

The petitioner put stress on the fact that the school was affiliated to the Madhya Pradesh State Board during his appointment, later it was affiliated with the CBSE. Therefore, it was argued that school falls within ambit of “State” under Article 12 of the Constitution, and that it could be said to have been performing public duty.

However, the Court clarified here that the CBSE is only a society registered under the Societies Registration Act, and the school was not part of the statute and hence, can’t count as a statutory body.

Furthermore, the court stated that while a body may be discharging a public function or performing a public duty, 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 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”,

In plain words, the court said, the action challenged holds no public element and therefore, the mandamus could not be issued as the action was essentially of a private character.

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.”

The court has jurisdiction to intervene where the service conditions either regulated by the statutory provisions, the employer had the status of “state” under Article 12, or it was found that the action complained of had a public law element.

In end the Court also added that the petitioner has other legal remedy available like to take this issue with the CBSE or the State.

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