How does an unaided private educational establishment come under article 226 of the Constitution? The High Court of Madhya Pradesh explains


The High Court of Madhya Pradesh, Gwalior Bench, recently issued a writ of mandamus under Article 226 of the Constitution of India ordering an unaided private educational institution to pay the dues that he owed to one of his former employees. The bench consisting of Judge M. Phadke observed that the institution separates education, which involves the public law element, thereby enabling the Court to exercise its power under Section 226 of the Constitution – The courts intervene in the exercise of jurisdiction under section 226, whenever the conditions of service are regulated by statutory provisions or the employer had the status of a “State” within the meaning of the broad definition of Article 12 or the action complained of has been found to have a public law element. Thus, in summary, a public obligation, to be enforceable by writ of mandamus, does not necessarily have to be imposed by law. It may suffice that the obligation was imposed by charter, common law, custom or even contract. The facts of the case were that the applicant was appointed director of the respondent institution, but his services were subsequently terminated, quite abruptly. He took steps with the establishment to issue him the discharge letter and to pay his terminal dues, but without an anvil. He then approached the district receiver, but he could not obtain the expected results. Injured, he seized the Court by filing a request for an order under Article 226 of the Constitution. In support of the maintainability of his petition, the petitioner argued before the Court that clause 19(2)(a)(i) of the Central Board of Secondary Education Regulations (Defendant #1) authorizes him to withdraw the affiliate of a school that is found guilty of failing to pay the salaries and allowances of teachers and other employees. Thus, the CBSE cannot escape its responsibility. Turning his attention to the Respondent Institution, the Claimant argued that private institutions providing education to students perform a public function, which is in the nature of the function of the State and, therefore, these institutions become liable to the written jurisdiction of the Court under Article 226. Furthermore, by placing reliance on the legislative intention to make the right to education a fundamental right, the Petitioner argued that the burden on the the Respondent Institution brought it squarely within the scope of the State under Article 12. On the contrary, the Respondent Institution argued that it did not fall within the scope of Article 12 since It was an autonomous body under the Ministry of Education with its own statutes, rules and regulations. The defendant institution further pointed out that it is a privately funded institution and does not receive any financial contribution from the Union Government or the State Government. It was also argued that given the operation of the Defendant Institution, CBSE was not a necessary party. Thus, the Defendant Institution argued that the motion in brief was not admissible. Considering the submissions of the parties, the documents on file and the jurisprudence established by the Supreme Court in KK Saksena v. International Commission on Irrigation and Drainage and Ramakrishna Mission v. Kago Kunya, the Court summarized that in cases such as the Applicant’s, two ingredients must be satisfied for the Court to invoke its jurisdiction under Article 226: Public law character involved in the lis Violation of fundamental/statutory right of the Applicant With respect to the impediment of the Institution being an unassisted school, the Court observed- To impart education is a function of the state, it is the obligation of the welfare state to ensure that children receive an education, which is one of the guiding principles of state policy enshrined in Article 41 of the Constitution of India. The state can, however, delegate its functions to educational institutions in the private sector and in doing so, the state has created its members as it was in the case of companies and corporations to fulfill its obligation constitutional right to provide education at all levels, from primary to primary. Higher Education. Referring to the relevant provisions of the Right to Education Act, the Children’s Right to Free and Compulsory Education Rules 2011 and the CBSE Membership Regulations, the Court found that reading them together favored the case of the petitioner -… the organic inference that follows is that since the said school which is run by respondent no. to the rules of 2011 and to the rules of affiliation to the CCNR, had discharged a public duty imposed on it by the said statutes. Such a public duty is mandatory, in my view, under Article 21A of the Constitution of India as well as the RTE Act, Rules 2011 and CBSC Membership Regulations which gave effect to the right fundamental in unequivocal terms. Therefore, I am of the informed opinion that the cited provisions of the RTE Act read together with the cited provisions of the CCNR Rules 2011 and Affiliation Regulations, do regulate the Applicant’s contract of service, and it therefore falls within the scope of the exception as stated in KK Sakesna (supra) and Kago Kunya (supra). The Court therefore noted that there was a clear manifestation of violation of the rights of the petitioner, making it a proper case for judicial review under Section 226 of the Constitution of India. The Court then turned to the decision of a division bench of the Court in the case of Bela Saxena v. State of Madhya Pradesh, in which the Court upheld the writs court’s decision dismissing a petition filed against a private school by referring to the Supreme Court’s decision in Trigun Chand Thakur v. State of Bihar. Discussing the concepts of obiter dictum and ratio decidendi under Article 141 of the Constitution, the Court observed- …in light of the above discussion and legal pronouncements, the Supreme Court’s judgment in the case of Trigun Chand (supra) on which the order of the division bench of this Court in the case of Bela Saxena (supra) is based, is a decision which is not express and not based on reasons nor proceeding on the consideration of the matter referred therein, cannot be considered as a law declared to have binding effect as envisaged by Article 141. With the above findings, the Court agreed with the assertions put forward by the petitioner – In accordance with the arguments put forward on behalf of the petitioner, I am of the opinion that the present motion in brief against respondents 2 and 3 is admissible. Respondents 2 and 3 are therefore requested to make payment of all terminal dues due to the claimant and also to issue his clearance certificate. The entire exercise must be carried out within 1 month from the date of receipt of the certified true copy of this decree, failing which the sums due would bear interest at the rate of 6% from their date. due until they are fulfilled. With the above-mentioned observations, the Court ruled that the application was admissible and, consequently, the Respondent Institution was called upon to pay the terminal dues it owed the applicant. Accordingly, the motion was granted. Representations Ms. Smriti Sharma, Counsel for Claimant Mr. DP Singh, Central Board of Secondary Education Mr. Yogesh Chaturvedi, Counsel for Respondents No. 2 and No. 3 Case Title: MRITUNJAYA SHUKLA VERSUS CENTRAL BOARD OF EDUCATION SECONDARY AND ORS. Citation: 2022 LiveLaw (MP) 199


[ad_1] The High Court of Madhya Pradesh, Gwalior Bench, recently issued a writ of mandamus under Article 226 of the Constitution of India ordering an unaided private educational institution to pay the dues that he owed to one of his former employees. The bench consisting of Judge M. Phadke observed that the institution separates education,…

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