Imparting Of Education Not Sufficient To Bring All Unaided & Minority Private Schools U/Art 226: Calcutta High Court

The Calcutta High Court on Friday dismissed a plea challenging the notices issued by a school mandating COVID-19 vaccination to its teachers finding that such a writ petition cannot be maintained. Justice Moushumi Bhattacharya held that a petition against a private unaided institution or school is not maintainable since the right sought to be enforced is purely of a private contractual character."This Court is of the view 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 enquiry as to whether the function can be equated with that of the State must delve a level deeper to ascertain the link between the impugned act and the function of imparting education by the entity concerned."The petition was filed by an Assistant Teacher praying for a declaration that the administration of Covid-19 vaccine is not mandatory when it conflicts with a person's religious beliefs. He also sought a mandamus commanding the respondent school to allow him to continue his work as a teacher and release his salary with all arrears from October 2021.The petitioner objected to being administered the Covid-19 vaccine on the ground that journals show that Covishield has been experimented on foetuses, which according to him, is against Christian beliefs. He therefore argued that the vaccine has become 'tainted' and cannot be forced on a devout, practising Christian. He did not want to be administered with Covaxin either since he was unsure of the methods employed in the clinical trials for the that vaccine.Meanwhile, the school issued a notice asking the staff to submit their vaccination certificates failing which they would be considered on leave without pay. Due to his refusal to be vaccinated, he was not allowed to enter the school premises since October 2021, thereby leading to deprivation of salary and not being permitted to carry on with his teaching commitments. The petitioner accordingly sought a direction on the Principal to cancel the said notice.Counsel appearing for the respondent school challenged the maintainability of the writ petition, arguing that it cannot be maintained since it was filed against a private unaided school.However, Advocate Subir Sanyal appearing for the petitioner urged that the school performs a public function in imparting education to students, and would hence come within the purview of Article 226 of the Constitution of India. The Court looked into the question of maintainability first. It pointed out that the debate of which 'person or authority' can be pulled within the sweep of Article 226 has been discussed in numerous Supreme Court decisions. It is settled that the focus is on the nature of the duties being performed by the private body, and 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.Although Article 226 would apply to an authority that qualifies as a State under Article 12, it excludes private law rights which would not be enforceable in writ jurisdiction, since the rationale of judicial review is a challenge to an action under administrative law. "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."The Court emphasised that private bodies can exercise public functions, but they 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. Therefore, the court disagreed with the petitioner's argument that the school imparting education to students is a public law element and pointed out 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 next question was what redressal was sought for by the petitioner. The cause of action shows that although the petitioner had urged violation of his rights under Articles 21 and 25(1), the relief prayed for is essentially for disbursement of salary. The petitioner was simply seeking to enforce his contract of service with the school and to circumvent the embargo from continuing with his services.The Court noted that both Articles 21 and 25(1) are subject to reasonable limits according to the procedure established by law. "There is little doubt that the impugned notice which is under challenge - requiring teachers and staff to submit their Vaccination Certificates to the School - does not impinge either upon the personal liberty of the petitioner or his right to profess and practice the religion of his choice."The Court also found many loopholes with the petitioner's objection to getting vaccinated on the allegation that they may ...

Imparting Of Education Not Sufficient To Bring All Unaided & Minority Private Schools U/Art 226: Calcutta High Court

Hannah M Varghese

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