Do Private Educational Institutions Perform a “Public Function” by Imparting “Education”?

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India has seen an outstanding development in the field of education and it holds a significant spot in the worldwide education market. With more than 1.3 billion populace, a market size of US$ 100 billion or more, advanced education organizations exceeding 36,000, and contributing 59.7 percent of the market size, India has one of the biggest advanced education frameworks in the world. With the private sector taking a bigger portion of student enrolments consistently, there is a tremendous potential for private value support in the training area for supported development and conveyance of value education. Be that as it may, this support has additionally made extraordinary difficulties and one of such difficulties is the amenability of educational establishments to the more extensive writ jurisdiction of the High Courts under Article 226 of the Constitution of India (“COI”) in its ability of being an ‘authority’.

The Calcutta High Court has recently in the case of Bineeta Patnaik Padhi v. Union of India & Ors.[1] has held that private unaided educational institutions discharge public function under the Right to Education (RTE) Act and are subsequently amiable to the Court’s writ jurisdiction under Article 226 of the Constitution.

In the said case, a writ petition was filed by Bineeta Patnaik Padhi, an educationist by profession, against the cessation of her administrations as the Principal of Army Public School at Panagarh while serving in her tenure as an all-inclusive probationer. The Army Welfare Education Society is in charge of the operations of the school and it was the contention of YJ Dastoor, (learned Additional Solicitor General, appearing on behalf of the respondents) that since the said school was a private independent school and the AWES which is overseeing it, is anything but a public body, taking into account the order of Article 12 of the Constitution of India, neither the said school nor the society regulating the issues of the said school would be amenable to the writ jurisdiction of this Court.

Advocate Sonal Sinha, addressing the Petitioner, contended that such termination of services was disregarding both, her fundamental rights as well as certain statutory rights. She expressed that the right to education is a fundamental right, accordingly all schools discharge a public obligation and thus, are amenable under the writ jurisdiction of courts.

She relied on the judgment given by the Supreme Court in the case of Anandi Mukta Sadguru Shree Mukta Jeevandasswami Suvarna Jaya vs V.R. Rudani & Ors[2], wherein the Supreme Court ruled that a writ of mandamus could deceive any individual or authority carrying out a public obligation and owing a positive responsibility to the influenced party, wherein such an obligation need not be forced by statute. To prove that Army Public School is a public enterprise, she relied on the judgment given by the Supreme Court in the case of DS Grewal v. Vimmi Joshi[3].

She argued, “While it is an admitted fact that the AWES operates all Army Public Schools across the country; the individual schools, as the said school, in this case, have to conform to the statutory compliances of the RTE Act, WBRTE Rules…

Court’s Decision

Relying upon several judgments, the single-judge bench of Justice Shekhar B Saraf observed, “Such a public duty stands imposed, in my opinion, in terms of both Article 21A of the Constitution of India as well as the RTE Act which gave effect to the fundamental right in unequivocal terms”

The case of Marwari Balika Vidyalaya vs. Asha Srivastava[4] was relied upon, wherein a teacher filed a writ petition against a private unaided educational institution, challenging the termination of her services. The Supreme Court in this case held that the writ petition will be maintainable.

The case of Roychan Abraham v. State of UP[5], was also taken into account by the court. In this case, a Full Bench of the Allahabad High Court ruled that private organizations granting schooling/education to students from the age of six years and onwards, including higher education carry out a public obligation; appropriately, such establishments become amenable to the writ purview. It has also been explained in this judgment that regardless of whether an authority is considered to be a ‘State‘ under Article 12 of the Constitution, the constitutional courts prior to issuing any writ, especially that of mandamus, should fulfill that such denounced action of the authority concerned which is under challenge, forms a part of the public law instead of private law.

Based on the submissions from both parties, and relying upon previous judicial pronouncements, the single judge bench ruled,

“What follows is the fact that even if AWES was considered to be a private body/authority, a writ of mandamus under Article 226 of the Constitution could be issued to the same if it were proved that it is performing a public duty and it owed a positive obligation to an affected party. The reason for such permissibility is the phraseology of Article 226 itself.”

It also added, “A bare perusal of the schematics of the RTE Act, exhibits that the legislative intent of the Parliament was to ensure that teachers were not left in the lurch in situations and their grievances in school disputes, would have to be addressed satisfactorily. Specific provisions of the RTE Act lay down with utmost clarity, that compliance with the principles of natural justice is a must while specific grievance redressal mechanisms would be laid down by the ‘appropriate government’ as defined in the RTE Act.”

Conclusion

The High Court’s judgment has sweeping ramifications for educational organizations as it not just gives an extra remedy against the “Deemed Universities” (and by suggestion other educational institutions carrying out a public function and public obligation) but a generous one as the High Courts have wide powers under Article 226 of the COI which would now be able to be utilized as often as possible by the prosecutors against such organizations to get their fundamental rights. Subsequently, while on one hand, the court’s judgment is being appreciated by students and general society everywhere, the Deemed Universities and different organizations for education are not very satisfied.


[1]  W.P.A. 5544 of 2021

[2] (1989) SCR (2) 697

[3] (2009) 2 SCC 210

[4] CIVIL APPEAL NO.9166 OF 2013

[5] AIR 2019 All 96

Written By

Siddhant Gupta

Dr. Ram Manohar Lohia National Law University, Lucknow

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