Writ Petition Against Private Schools is Maintainable: Calcutta HC

On Tuesday, the Calcutta High Court ruled that a private unaided educational institution is amenable to writ jurisdiction under Article 226 of the Indian Constitution.

It was further held that a school operated by the Army Welfare Education Society would come within the meaning of State under Article 12.

Justice Shekhar Saraf ruled that the school, even if it is unaided, discharges a public duty under the Right to Education (RTE) Act and West Bengal Right to Education (WBRTE) Rules.

However, the Bench clarified that even if an authority is deemed to be State under Article 12 of the Indian Constitution, the constitutional courts before issuing any writ has to satisfy that such an action of the concerned authority that is under challenge and it forms a part of public law.

This order was given in a plea filed regarding the maintainability of a plea. It was raised in a plea filed by Bineeta Patnaik Padhi that challenged her termination from the post of Principal of Army Public School, Panagarh.

She approached the Court and submitted that her termination violated her statutory and fundamental rights. The Army operated the school in question.

Advate Sonal Sinha, who appeared for the petitioner, submitted that schools under AWES had to comply with RTE provisions and to by-laws of CBSE. She further stated that the petitioner’s service came within the RTE  and was not merely a private contract between the petitioner and the school.

ASJ YJ Dastoor, who appeared for Centre, stated that there was no violation of either statutory rights or fundamental rights of the petitioner in the instant case. He further contended schools under AWES were not recipients of financial aid from the State or Centre but received funds from the Army.

Lastly, Mr Dastoor stated that Courts could use jurisdiction under Article 226 only if public law were involved.

After hearing both sides, the Court observed that the legislative intent of the RTE Act was to ensure the teachers were not left to fend for themselves if their grievances are not amicably settled.

Accordingly, the Court ruled that statutory provisions under the RTE and West Bengal RTE make this case fit for judicial review.

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The Bench placed reliance on Marwari Balika Vidyalaya vs Asha Srivastav wherein the Court held that a writ application was maintainable if the school was an unaided one. Therefore the Bench ruled that a private unaided school amenable to writ jurisdiction was no longer res integra.

As per the Court, since the school had discharged a public duty that was given to it under the Right to Education Act, it would be subject to Article 226 jurisdiction.

The Court ordered that the respondent authorities are given four months to file their affidavits-in-opposition. The petitioner could submit the affidavits in reply within two weeks after that.

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