Deeksha Singh vs Delhi Public School, Gwalior and others

Hon''ble Shri Justice Sujoy Paul

By filing this petition under Article 226 of the Constitution, the petitioner has prayed for following relief:-

That, by issuance of the writ order or direction the respondents no. 1 to 3/institution may kindly be directed to allow to continue the petitioner to prosecute the studies of Class IX and she be also allowed to participate in the ensuing final examination which is likely to be held for the academic year 2012-13 and to continue her in the respondents no. 1 to 3/institution up to Class XII.

Shri Katare submits that the respondent/school is affiliated with Central Board of Secondary Education (CBSE), New Delhi and is a registered society. Since institution is imparting education, it is performing the duties of the State and, therefore, it is amenable to the writ jurisdiction of this Court being a "State" within the meaning of Article 12 of the Constitution. He submits that the relief aforesaid is due to the petitioner and writ petition is tenable. In support of the said contention, he relied on the judgment of this Court in Writ Appeal No. 595/2006 (Miss Hill Education Society vs. Smt. Neeti Bhan and others) and another Division Bench judgment of this Court, reported in 1994 M.P.L.S.R. 174 (Ratan Prasad Kushwaha and others vs. North Coalfields Limited and others).

I have heard learned counsel for the petitioner at length.

The petitioner has prayed for a mandamus to permit her to continue in Class-IX and she be allowed to participate in final examination. No doubt that earlier a Division Bench of this Court in Ratan Prasad Kushwaha (supra) took a view in 1994 that such private unaided institutions may be amenable to writ jurisdiction of the High Court and the same view was followed in WA No. 595/2006, however, the march of events and subsequent judgments cannot be forgotten. In Yashwant Singh Sikarwar Vs. Teresian Carmel Educational Society and others, , this Court opined that writ cannot be issued against an unaided institution for a relief which is personal in nature. Another Division Bench of this Court in the case reported in Sunil Kumar Saxena Vs. Holy Cross Ashram Higher Secondary School and Others, opined that the writ petition against unaided institution is not maintainable unless element of public law is involved. In the facts of that case, it was opined that termination of an employee amounts to a grievance of personal nature and element of public law is not involved therein. A microscopic reading of this judgment would show that the Division Bench has taken note of various subsequent judgments of the Supreme Court on the subject. In para 11 of the judgment, the earlier view of the Division Bench is taken note of, wherein it was held that unaided institution is amenable to the writ jurisdiction of the High Court. After taking note of other judgments and considering various Supreme Court judgments on the subject, it is opined that writ is maintainable against an unaided educational institution when element of public law is involved. In the event the said facet is absent, the writ is not tenable.

Examining the case of the petitioner on the aforesaid test laid down would show that there is no public law element involved in the present case. The Principal Seat in the case reported in 2011 (4) MPLJ 587 (Virendra Singh vs. Principal, Christ Church Boys Senior Secondary School, Jabalpur and another), opined that writ against unaided institution is not maintainable. The dispute between the petitioner and the respondents does not have any public law element and, therefore, writ petition was dismissed.

In view of the aforesaid, it is clear that the grievance of the petitioner in the present case also does not have any public law element. In this view of the matter, I am unable to hold that writ petition is tenable. For the reasons stated above, writ petition is not entertained. However, liberty is reserved to the petitioner to avail the remedy in accordance with law. It is made clear that this Court has not expressed any opinion on the merits of the case.