Private Unaided Schools Are Subject To Writ Jurisdiction Under Article 226 If Service Conditions Are Governed By Statutory Provisions Like DSEAR, 1973 : Delhi HC

The Delhi High Court bench comprising of Justice Prateek Jalan held that a private unaided school is subject to writ jurisdiction under Article 226 of the Constitution if its service conditions are governed by statutory provisions like the Delhi School Education Act and Rules, 1973 (DSEAR). Background Facts The petitioner was appointed as a Post-Graduate Teacher in Chemistry in the respondent School. The petitioner was appointed to the post on 20.07.1998. The appointment letter contained an express provision that the terms and conditions of her appointment are governed by the Delhi School Education Act and Rules, 1973 (DSEAR). The Rule 110(2) of DSEAR state that every teacher, laboratory assistant, Librarian, Principal or Vice-Principal employed in such school shall continue to hold office until he attains the age of 60 years. If such employee attains the age of superannuation on or after the 1st day of November of any year, they shall be reemployed upto the 30th day of April of the year immediately following. The petitioner attained the age of 60 years on 30.11.2024. In terms of Rule 110(2), she addressed a representation to the Principal of the School on 27.10.2024, seeking reemployment until 30.04.2025. She made a further representation on 14.11.2024, after receiving a communication dated 04.11.20244, stating that she would superannuate on 30.11.2024. However, her representation was rejected by the respondent school. Aggrieved by the same, the petitioner filed the writ petition under Article 226 of the Constitution, seeking re-employment until 30.04.2025 in terms of the Rule 110(2) of the DSEAR. It was contended by the petitioner that her service conditions were governed by the DSEAR, which explicitly provides for re-employment until April 30 of the following year if a teacher attains the age of 60 on or after November 1. It was clarified that the petitioner do not want to further disturb the arrangements that have since been made for teaching in the School. However, she was willing to report to the School from 24.02.2025, and would be available for such duties as the School may assign to her, commensurate with her position. On the other hand it was contended by the respondent school that the judgments of the Supreme Court in 'St. Mary's Education Society and Anr. v. Rajendra Prasad Bhargava And Ors.' and 'Army Welfare Education Society, New Delhi v. Sunil Kumar Sharma & Ors.' made it clear that service matters regarding private unaided schools are not amenable to the writ jurisdiction of the Court. Findings of the Court The case of St. Mary's Education Society and Anr. v. Rajendra Prasad Bhargava And Ors. was relied upon by the court wherein the Supreme Court held that in the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service. It was observed that in a case of retirement and termination, no public law element is involved. It was further observed that a writ under Article 226 of the Constitution against a private educational institution shall be maintainable only if a public law element is involved and if there is no public law element is involved, no writ lies. Even if imparting education by private unaided school is a public duty, an employee of a non-teaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether a person is employed by school to discharge that duty. It was further held where the removal of an employee of nonteaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered with by the Court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty. It was held by the court that in a situation where the service conditions are governed by statute, the judgment in St. Mary's itself carves out an exception, in which the writ remedy is available. Therefore, it was held that the exception referred to in St. Mary's14 was clearly applicable. Therefore the objection raised by the respondent was rejected by the court. It was observed by the court that if service conditions are governed by statute, and the institution is discharging a public function, a writ would lie against it in respect of such service conditions. It was further observed by the court that the relief sought by the petitioner is directly in terms of Rule 110(2) of DSEAR which provides for the retirement age, and it provides for re-employment, as sought by the petitioner. The purpose of Rule 110(2) is to prevent disruption in the teaching of students in the midst of the academic year. It was further observed that the effect of the action of the School is that such disruption has already occurred....

Private Unaided Schools Are Subject To Writ Jurisdiction Under Article 226 If Service Conditions Are Governed By Statutory Provisions Like DSEAR, 1973 : Delhi HC

Namdev Singh

Tags