Whether Writ Petition against Private School Maintainable?

A Full bench of the Allahabad High Court comprising of Chief Justice Govind Mathur, Justice Suneet Kumar and Justice (Dr.) Y.K. Srivastava, has decided the issue of maintainability of the Writ Petition against Private Schools. The Judgments came in the case of Roychan Abraham vs State of U.P. and Others (Writ A No. 63708 of 2014).

The matter came to be referred to the Larger Bench by the Single Judge on being confronted with the judgment rendered by the Supreme Court in Ramesh Ahluwalia vs State of Punjab and others (2012 (12) SCC 331), wherein, the Court held that a private educational body performing the public duty or discharging public function would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution of India, consequently, in the opinion of the referring Court, the Full Bench judgment of Allahabad High Court in M.K. Gandhi and others v. Director of Education (Secondary) U.P. and others (2006 (62) ALR 27) and Division Bench decision rendered in Anjani Kumar Srivastava Vs State of U.P. and others (2017 (7) ADJ 112) needed to be revisited.

Issues framed by the Court:

  1. Whether private institutions imparting education perform the public duty, a State function, making them amenable to judicial review under Article 226 of the Constitution of India;
  2. Whether the Full Bench decision rendered in M.K. Gandhi and Division Bench judgment in Anjani Kumar Srivastava requires to be revisited in view of the Supreme Court decision rendered in Ramesh Ahluwalia.


Petitioner, an assistant teacher of the junior section of Saint Francis School, a Christian Minority Institution school, was placed under suspension. After that, his services came to be terminated on 07 March 2014 with immediate effect. The writ petition was filed assailing the order of termination being arbitrary and in violation of the service conditions of the institution. A preliminary objection was raised that the writ petition is not maintainable before the High Court under Article 226 of the Constitution against the private educational institution in view of the Full Bench decision rendered in M.K. Gandhi. 

Observations of the Court:

The Court observed that the importance of ‘State’ as contemplated under Article 12, is confined to the restrictions placed in Part-III of the Constitution upon the ‘State’ as against rights conferred by the said Part. Article 13 prohibits the ‘State’ in taking away or abridging by law any fundamental right and any such law would be void. The remedy for enforcement of Part-III rights itself has been made a fundamental right under Article 32 conferring jurisdiction on the Supreme Court. The jurisdiction of the Supreme Court under Article 32 could be invoked only in respect of rights conferred by Part-III in relation to ‘State’ actions.

The Court after examining the Judgments of the Supreme Court on the interpretation and scope and Article 12, the Court observed that within a decade, thereafter, the concept of ‘State’ had undergone drastic changes; with the State entering commercial space, acting through corporations, thus, making it an agency or instrumentality of the State. The public corporation, therefore, became a third arm of the Government which were often of a specialised and highly technical character. The employees of a public corporation are not civil servants. In so far as public corporations fulfil public tasks on behalf of government they are public authorities and were subject to control by the Government. The public corporation being a creation of the State is subject to the constitutional limitation as to the ‘State’ itself.

After this, the Court interpreted the scope of Article 226 of the Constitution of India and observed that the power of the High Court to issue writ begins with a non-obstante clause. The power and jurisdiction of the High Court is much wider. The jurisdiction extends to enforcement against infringement of Part III rights, against ‘State’ and also against ‘any person or authority and ‘for any other purpose’. The limitation of action against the ‘State’ alone is not there under Article 226 of the Constitution. Thus, there is a distinction between the powers to issue writs as between the Supreme Court and the High Court. The power to issue writ conferred upon the Supreme Court by Article 32 is for enforcement of Part III rights, but the power to issue writs as conferred under Article 226 upon the High Court is for enforcement of fundamental rights as against ‘State’ and non-fundamental rights as against any ‘other person or authority’ or ‘for any other purpose’. Thus, is the distinction between writ jurisdiction of the Supreme Court and the High Court, that even where the Supreme Court declines an Article 32 writ petition on the ground that the offending party/authority is not ‘State’ yet the High Court can interfere and issue the writ under Article 226 in appropriate cases.

The Court stressed upon the term ‘authority used in Article 226 and observed that it must receive a liberal meaning unlike the term ‘authority’ in Article 12. The words “any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the ‘person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.

After examining the scope of Article 12 and 226 of the Constitution of India, the Court held that a private body though not ‘State’, but performing public duty is amenable to the writ jurisdiction under Article 226 of the Constitution. Whether a writ would lie at the behest of an aggrieved party against the offending act of the private body performing public duty would depend upon the facts and the nature of the offending act complained against.

After this, the Court moved on the next question as to Whether private educational institutions perform public duty?

The Court observed that to impart education is a State function, it is the obligation of the welfare State to ensure that children are imparted education, which is one of the directive principles of State Policy enshrined in Article 41 of the Constitution of India. The State can, however, delegate its functions to the private sector educational institutions and while doing so, the State has created its limbs as it was in the case of companies and corporation to discharge its constitutional obligation of imparting education at all levels from primary to higher education. The State neither has the funds and resources to set up educational institutions and in particular institutions imparting higher education. Imparting education is not a State monopoly, though it is one of the most important functions of the Indian State. The right to establish and administer educational institution is guaranteed under the Constitution to all citizens under Article 19(1)(g) and 26, and to the minorities specifically under Article 30.

The Court relied upon various Judgments of Supreme Court such as Unni Krishnan, T.M.A. Pai Foundation and Others vs. State of Karnataka and others, Miss Raj Soni v. Air officer in charge Administration and another and Pramati Educational & Cultural Trust and others versus Union of India and others, to come to the conclusion that all the educational institutions are subject to judicial review of the High Court under Article 226 of the Constitution of India.


Question (i): Private Institutions imparting education to students from the age of six years onwards, including higher education, perform public duty primarily a State function, therefore are amenable to judicial review of the High Court under Article 226 of the Constitution of India.

Question (ii): The broad principle of law which has been formulated in the judgement of the Full Bench in M.K. Gandhi and Division Bench in Anjani Kr. Srivastava is confined to the facts obtaining therein and is not an authority on the proposition of law that private educational institutions do not render public function and, therefore, are not amenable to judicial review of the High Court. The judgements do not require to be revisited.

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