Introduction

The writ jurisdiction of the Supreme Court under Article 32 and of the High Courts under Article 226 constitutes one of the most powerful constitutional mechanisms for the protection of rights against arbitrary exercise of power. While Article 32 guarantees the right to approach the Supreme Court for enforcement of fundamental rights, Article 226 confers a wider jurisdiction upon the High Courts to issue writs not only for the enforcement of fundamental rights but also “for any other purpose.”

Ordinarily, writ petitions are instituted against the State and its instrumentalities. However, with the growth of private institutions performing functions traditionally associated with the State, courts have increasingly been confronted with the question whether private bodies can also be subjected to judicial review under Article 226. This issue assumes particular significance in the context of private educational institutions, especially when disputes arise between such institutions and their employees.

The question is not merely whether an unaided private educational institution is amenable to writ jurisdiction, but whether service disputes arising from the employment relationship in such institutions can be adjudicated in exercise of the extraordinary jurisdiction of the High Court under Article 226.

Concept of State under Article 12

The maintainability of a writ petition under Article 32 depends upon whether the respondent falls within the definition of “State” under Article 12 of the Constitution. Article 12 provides:

“In this Part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

The definition is inclusive rather than exhaustive. Over the years, the Supreme Court has expanded the meaning of “other authorities” through judicial interpretation.

In Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722, the Supreme Court held that a body substantially financed and controlled by the Government may be treated as an instrumentality of the State. This principle was further refined in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111, wherein the Court emphasized the test of deep and pervasive governmental control.

Consequently, many statutory corporations, government companies and autonomous bodies have been brought within the ambit of Article 12. Nevertheless, several private institutions performing public functions do not satisfy the Article 12 tests and therefore cannot be regarded as “State”.

Wider Scope of Article 226

Unlike Article 32, Article 226 is not confined to actions against the State. Article 226 empowers every High Court to issue directions, orders or writs to “any person or authority” for the enforcement of fundamental rights and “for any other purpose.”

The expression “any person or authority” has received a broad interpretation from the courts. Consequently, a body need not necessarily be a “State” under Article 12 to be amenable to the writ jurisdiction of the High Court.

This distinction led to the evolution of the doctrine of public duty, under which private bodies performing public functions may be subjected to judicial review.

Public Duty Doctrine

The doctrine of public duty rests upon the principle that when a private body performs functions having a public character or discharges obligations affecting the public at large, it may be subjected to judicial review despite not being a State under Article 12.

A landmark illustration of this principle is found in Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649. The Supreme Court held that the Board of Control for Cricket in India (BCCI) was not “State” within the meaning of Article 12 and therefore a writ petition under Article 32 was not maintainable against it. However, the Court observed that because BCCI performs functions of immense public importance in regulating cricket in India, its actions could be challenged before the High Court under Article 226.

Similarly, in Federal Bank Ltd. v. Sagar Thomas, (2003) 10 SCC 733, the Supreme Court clarified that a writ may lie against a private body where it performs a public duty or public function. However, purely private contractual disputes remain outside the ambit of writ jurisdiction.

These decisions laid the foundation for extending judicial review to certain categories of private institutions, including educational institutions.

Educational Institutions and Public Function

The Supreme Court has consistently recognized education as an activity imbued with a public character.

In Unni Krishnan, J.P. v. State of Andhra Pradesh, (1993) 1 SCC 645, the Court held that imparting education is essentially a public function and not a mere commercial enterprise. Educational institutions perform an important social obligation and contribute directly to the realization of constitutional goals.

The constitutional significance of education was further emphasized in T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481. While recognizing the autonomy of private educational institutions, the Court acknowledged that such institutions perform a public function and therefore cannot be treated on par with ordinary commercial establishments.

In the same decision, the Supreme Court recommended the establishment of specialized Educational Tribunals for adjudication of disputes between educational institutions and their employees. The Court observed that forcing teachers and other staff members to institute civil suits for enforcement of service rights is often expensive, time-consuming and ineffective. Although several States subsequently established Educational Tribunals, no comprehensive tribunal mechanism presently exists in Uttar Pradesh for adjudication of such disputes.

Whether Service Matters of Employees are Amenable to Writ Jurisdiction?

The recognition of education as a public function does not automatically imply that every dispute involving an educational institution can be adjudicated through a writ petition.

A crucial distinction must be maintained between public law disputes and private law disputes.

Article 226 is fundamentally a public law remedy. Its primary purpose is to ensure compliance with constitutional, statutory and public duties. On the other hand, disputes arising solely out of contractual obligations generally belong to the realm of private law.

Therefore, the mere existence of an employer-employee relationship does not by itself attract the writ jurisdiction of the High Court. The determinative factor is whether the dispute involves violation of a public duty or a statutory obligation.

If the institution violates service conditions prescribed by statute, statutory rules, government regulations, university statutes, UGC Regulations, CBSE Affiliation Bye-laws, or any other mandatory regulatory framework, the dispute acquires a public law element and becomes amenable to judicial review.

Conversely, where the dispute relates exclusively to the terms of an individual employment contract without involving any statutory obligation, the matter ordinarily remains a private law dispute for which the appropriate remedy lies before a civil court.

Judicial Development of the Law

The Supreme Court directly addressed this issue in Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC 331.

The petitioner, a teacher employed in a private unaided educational institution, challenged disciplinary action taken against him. The Court held that a writ petition was maintainable against the institution because education is a public function and the dispute involved enforcement of legal rights arising from statutory provisions governing service conditions.

The judgment significantly expanded access to judicial review for employees of private educational institutions.

The principle was reaffirmed in Marwari Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449. The Supreme Court upheld the maintainability of a writ petition filed by a teacher against an unaided private educational institution and emphasized that institutions engaged in imparting education perform a public function. The Court held that where statutory obligations governing service conditions are involved, the writ jurisdiction of the High Court can be invoked.

However, concerns subsequently emerged that Ramesh Ahluwalia might be interpreted too broadly so as to convert every employment dispute in a private educational institution into a writ matter.

The Supreme Court revisited the issue in St. Mary's Education Society v. Rajendra Prasad Bhargava, (2023) 4 SCC 498. The Court clarified that the maintainability of a writ petition depends not merely on the nature of the institution but also on the nature of the right sought to be enforced. It emphasized that judicial review under Article 226 cannot be invoked for every contractual service dispute merely because the employer is an educational institution.

The Court reaffirmed that a public law element remains indispensable. Unless the dispute involves breach of a statutory duty, violation of mandatory regulations, or infringement of a public obligation, the matter ordinarily belongs to the domain of private law and must be pursued through ordinary civil remedies.

Conclusion

The legal position emerging from the above decisions may be summarized as follows. An unaided private educational institution performs the public function of imparting education and is therefore amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution. However, this does not imply that every service dispute involving such an institution can be entertained in writ proceedings.

The decisive test is whether the dispute contains a public law element. Where statutory rights, statutory service conditions, regulatory obligations, or public duties are involved, a writ petition is maintainable. On the other hand, disputes arising solely from private contractual obligations ordinarily fall outside the scope of judicial review and must be pursued through civil remedies.

Thus, while Article 226 serves as an important safeguard against arbitrary action by private educational institutions performing public functions, its jurisdiction continues to be governed by the fundamental distinction between public law and private law.

(Author is an Advocate practising at the Allahabad High Court and specialises in service and education laws.)

BHU LLB

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