Unassisted private educational institutions fulfill the public obligation to provide education; Jurisdiction susceptible to writ: High Court of Calcutta



The Calcutta High Court ruled that unassisted private educational institutions perform a public function under the Right to Education Act (RTE) and are therefore subject to the jurisdiction of the Court under the article 226 of the Constitution.

Such a public obligation is imposed, in my opinion, both in terms of Article 21A of the Constitution of India and of the TEN Act which gave effect to the fundamental right in no uncertain terms,“a Unique Bench of Justice Shekhar B Saraf observed.

Trust was placed on Marwari Balika Vidyalaya v. Asha Srivastava by which the Supreme Court ruled in support a petition in brief filed by a teacher against a private educational institution without assistance, contesting the termination of its services.

The attention of the Court was also drawn to a decision rendered by the High Court of Allahabad in Roychan Abraham v. UP State, AIR 2019 All 96, where it was found that private establishments providing education to students from the age of six, including higher education, fulfill a public mission; consequently, these institutions become susceptible of jurisdiction by way of writ.

Significantly, it was clarified in the judgment that even if an authority is considered a “state” under Article 12 of the Constitution, constitutional courts, before issuing a summons, in particular that of mandamus, must prove that the contested action of the relevant authority which is contested falls under public law as opposed to private law. (We relied on KK Saksena v. International Commission on Irrigation & Drainage, (2015) 4 SCC 670)

The development comes in a written petition filed by educator Bineeta Patnaik Padhi, an educator by profession, against the termination of her service as director of the military public school in Panagarh while serving in her extended probationary tenure.

The school is operated by the Army Welfare Education Society and YJ Dastoor argued that, since said school was a private school without assistance and AWES which operates it, is not a public body, given the mandate of Article 12 of the Constitution of India, neither said school nor the company supervising the affairs of said school would come under the judicial jurisdiction of this Court.

Lawyer Sonal Sinha, representing the Applicant, argued that such termination violated both his fundamental rights as well as certain statutory rights.

She said the right to education is a fundamental right, therefore all schools fulfill a public duty and, therefore, may be subject to jurisdiction.

We relied on VR Rudani, where the Supreme Court ruled that a summons of mandamus could fall on any person or authority performing a public duty and before a positive obligation to the affected party, such an obligation not needing to be imposed by law.

While it is an accepted fact that AWES operates all public military schools across the country; individual schools, like the said school in this case, must comply with the statutory conformities of the RTE law, the WBRTE rules, etc.“she argued.

It also relied on the Supreme Court’s decision in DS Grewal v. Vimmi Joshi, (2009) 2 CSC 210, to emphasize that the public army school is a public enterprise.

Based on the above observations, the Single Chamber ruled,

what follows is the fact that even if AWES were considered a private body / authority, a summons of mandamus under Article 226 of the Constitution could be issued to him if it was proven that he was fulfills a public duty and owed a positive obligation to an affected party. The reason for this eligibility is the phraseology of section 226 itself.

He added,

A simple reading of the diagrams of the RTE law shows that the legislative intention of Parliament was to ensure that teachers were not left behind in situations and that their grievances in school disputes should be dealt with in a satisfactory manner. The specific provisions of the RTE law stipulate with the greatest clarity that respect for the principles of natural justice is essential, while specific grievance mechanisms would be defined by the “competent government” as defined in the RTE law.. “

Case title: Bineeta Patnaik Padhi v. Union of India & Ors.


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