Imparting education simpliciter is not sufficient for bringing all unaided, minority private schools under sweep of Art. 226: Calcutta HC

The Calcutta High Court has ruled that imparting of education simpliciter is not sufficient for bringing all unaided and minority private schools and colleges under the cover of Article 226.

The bench of Justice Moushumi Bhattacharya said that the decision which is sought to be enforced or challenged by invoking the writ jurisdiction of the court must be in the discharge of a public function, the denial of which can be deflected back to the public duty imposed on the body.

"In other words, the functions performed by the private body must transcend the limitations of the nature of the body or the source of the power and affect the rights of the public akin to that of the functions performed by the State in its sovereign capacity," the court said. 

The court observed thus while dealing with a writ petition moved by an Assistant Teacher of St. James’ School, Kolkata against the notice issued by the school mandating submission of Covid-19 Vaccination Certificates for the staff.

The petitioner had refused to undergo vaccination on the ground of violation of his religious beliefs, and consequently, he had been denied entry to the school and had not been paid any salary since October 2021. 

Through the present writ petition, the petitioner sought a declaration that administration of Covid-19 vaccine is not mandatory when it conflicts with a person’s personal religious beliefs.

He also sought a mandamus commanding the respondent School to forthwith allow him to continue his work as a teacher and release his salary with all arrears.

However, the school challenged the maintainability of the writ petition contending that since the respondent school was a private unaided school therefore a writ petition against it could not be maintained.

On the other hand, the counsel for the petitioner argued that since the respondent school performs a public function in imparting education to students, hence, it would come within the purview of Article 226 of the Constitution of India.

The single judge bench referred to various judgments of the Top Court including St. Mary’s Education Society vs. Rajendra Prasad Bhargava (2022) and said that although the decision on amenability to writ jurisdiction may vary on the particular facts of a case, the focus on private bodies has shifted to and settled on the nature of the duties being performed by the private body.

"The emphasis is not on the source of power but on the performance of a function which can be equated to that of the State", it emphasised.

Court stressed that the action must satisfy the test of public law in the form of discharge of public functions with the object of achieving a collective benefit for the public with the body having the authority to perform functions of a public nature.

Court noted that in the present case, the argument of the petitioner on the public law element was on the school imparting education to students although he essentially sought a mandamus to the school to permit him to continue his job and disburse his salary.

Court held the attempt of the petitioner "indeed dichotomous" while stating that a "purely personal and pragmatic case for monetary relief fixed on lofty (and vexing) religious speculation cannot be sustained and that too against a private un-aided School".

"The expanded contours of Article 226 of the Constitution making space even for private individuals discharging public duties or public functions cannot become the justification for entertaining writ petitions for disputes where the right in question is purely in the realm of private law and cannot be wedded to the public duties performed by the entity", the court held. 

Case Title: Dr. Nirjhar Bar v. Union of India & Ors.