1. This appeal arises from a judgment of a Single Judge made on 5 November 1992, in Civil Rule No. 476 of 1989. The facts leading to the writ petition are, in brief, as follows. The Silchar Collegiate School is a recognised, institution run by a private body. The petitioner was initially appointed as temporary teacher in the school with effect from 1 April 1976; later, as the Vice-Principal temporarily with effect from 1 January 1983. The petitioner was confirmed as Assistant Teacher with effect from 1 April 1988. Thereafter by a resolution, dated 4 February 1989 of the managing committee of the school, the petitioner was reverted from the post of the Vice-Principal to, his substantive psot of the Assistant Teacher with effect from 6 February 1989, and Smt. Ratna De was promoted purely on temporary basis. Thereafter, notice, dated 4 February 1989, was issued by the management reverting the petitioner to the post of Assistant Teacher and appointing Ratna De as the Assistant Headmistress, against the reversion from the post of Vice-Principal, the petitioner submitted a representation to the Inspector of Schools, Cachar. The Inspector of Schools, vide letter, dated 17 February 1989, forwarded the representation to the Secretary of the managing committee for point-wise comment on the representation, and directed the Secretary not to give effect to the notice, dated 4 February 1989. But the management did not obey the direction of the Inspector. In the writ petition, the petitioner has challenged the notice, dated 4 February 1989.
2. The learned Single Judge has held that the petitioner was reverted from the post of Vice-Principal to his substantive post of Assistant Teacher in violation of the rules of natural justice; and that the school is amenable to the writ jurisdiction of the High Court for the management did not object to the application of the Assam Aided Higher Secondary, High and Middle School Management Rules, 1976 (Rules for short), and “apart from public duty to be performed by the managing committee there is interference by the Government agencies, namely, the Inspector of Schools, under relevant rules.” The learned Judge quashed the impugned notice and directed the managing committee to reinstate the petitioner as the Vice-Principal and granted consequential reliefs mentioned in the judgment. Hence this appeal by the management.
3. Sri D.K Bhattacharjee, learned counsel for the appellant, has made the following submissions. First, the Inspector of Schools has no control over the teachers as the school is purely a private institution run by a private body. Secondly, the school or its management is not subject to the writ jurisdiction of the High Court. Thirdly, there was no violation of principles of natural justice, while reverting the petitioner from the post of Vice-Principal to the post of Assistant Teacher.
4. One of the question which, therefore, arises for consideration is whether the Inspector of Schools has control over the teachers of the school in question on the facts and in the circumstances of the case. It is not disputed that the school does not receive grant-in-aid from the State Government, that is to say, the school is purely a private institution. However, the order, dated 30 May 1987, of the Inspector of Schools (Annexure G to the writ petition) indicates that the Inspector, in the exercise of the power under the rules, reconstituted the managing committee. The rules indicate that they apply to aided schools. There is no indication that rules apply to unaided private school. It may be as a matter of courtesy, the management forwarded to the Inspector names of the persons proposed as office-bearers and members of the managing committee, and the Inspector accordingly purported to reconstitute the committee. The rules do not give any such power to the Inspector. Recognition of a private school is dealt with by the Assam Education Department Rules and Orders. Under Para. 6 of that Rules and orders, in respect of managing committee of a private recognised school, it is sufficient if the school is under the control of management of a regularly constituted committee in which teaching staff is represented.
4A. Be that as it may, the order, dated 31 March 1976, appointing the petitioner as temporary teacher with effect from 1 April 1976 (Annexure A to the petition), the order, dated 28 December 1982, appointing the petitioner as Vice-Principal (Annexure B to the petition), and the order, dated 5 October 1988, confirming the petitioner as Assistant Teacher with effect from 1 April 1988 (Annexure B(I) to the petitioner) were made by the management without prior approval of the Inspector. If the rules are or were applied to the school, such appointments are or were to be made with the prior approval of the Inspector of Schools under rule 23(5) of the rules. Therefore, merely because the managing committee was purportedly reconstituted by the Inspector of Schools, or the constitution of the managing committee was purportedly approved by the Inspector, under the rules, it cannot change the character of the school as an aided institution as the school does not receive grant-in-aid from the Government and the power to appoint or to remove the teachers is not with the Inspector of Schools but with the managing committee although the Director of Public Instruction has the authority to recognise the school or to withdraw the recognition. It may be stated here that no rule or statute has been brought to our notice to show that the Inspector or the Director has control over the teacher of an unaided school in the matter of appointment or removal of teacher.
5. The next question which arises for consideration is whether a writ of mandamus would lie against an unaided private body running a school.
6. Audi Mukta Sadguru Shree Muktajee Vandas Swami Suvama Jayanti Mahotsav Smarak Trust v. V.R Rudani (1989 - II L.L.N 281], is a case where mandamus was issued to a Government aided college. The facts of that case were as follows. A trust was managing an affiliated college to which public money was paid as Government aid. The trust closed the college with the termination of services of all academic staff. The teachers demanded only arrears of salary, provident fund, gratuity and closure compensation. They did not claim their continuance in service. One of the questions which came up before the Court for consideration was whether the trust which was not a statutory body was subject to writ jurisdiction. The Court held that the aided institution like the Government institution discharges public function byway of imparting-education to the students, the service conditions of the academic staff are not purely of a private character, and the employment in such institutions is not devoid of any public character. In Para. 20, at page 287 of the judgment it was held:
“The words ‘any person or authority’ used in Art. 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owned by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.”
[emphasis added]
In Para. 21, at page 287, it was observed:
“In Praga Tools Corporation v. C.A Imanual [(1969) 1 SCC 585 : A.I.R 1969 S.C 1306] this Court said that mandamus can issue against a person or body to carry out the duties placed on them by the statutes even though they are not public officials or statutory body…”
In Para. 22, at pages 287 and 288 it was held:
“Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states:
‘To be enforceable by mandamus a public duly docs not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract (Judicial Review of Administrative Act 4th Edn. P. 540). We share this view,”
7. In Unni Krishnan v. State of Andhra Pradesh [(1993) 1 SCC 645 : A.I.R 1993 S.C 2178], the Supreme Court has inter alia, held:
“(1) The citizens of this country have a fundamental right to education. The said right flows from Art. 21. This right is, however, not an absolute right. Its content and parameters have to be determined in the light of Arts. 45 and 41.
(2) The obligation created by Arts. 41, 45 and 46 of the Constitution can be discharged by the State either by establishing institution of its own or by aiding, recognising and/or granting affiliation to private educational institutions.
(3) A citizen of this country may have a right to establish an educational institution but no citizen, person or institution has a right much less a fundamental right, to affiliation or recognition, or to grant-in-aid from the State. Recognition and/or affiliation shall be given by the State subject only to the conditions set out in and only in accordance with the scheme contained in the judgment.”
In respect of nature of function discharged by private educational institutions, it was observed in Para. 77 that they discharge public duty, and after considering the decision in Audi Mukta Sadguru [1989 — II L.L.N 281] (vide supra), the Court at Para. 79, observed:
“…In spite of it, if the emphasis is on the nature of duty on the same principle it has to be held that these educational institutions discharge public duties. Irrespective of the educational institutions receiving and it should be held that it is public duty. The absence of aid does not detract from the nature of duty.”
(emphasis added)
8. In view of the above observation, a private institution, whether or not it receives grant-in-aid, preforms or discharges public duty in so far as it concerns imparting of education; and the question, whether such an institution will be amenable to writ jurisdiction depends upon the nature of the right-duty relationship between the institution and other persons.
9. The question then is — Whether a writ shall lie against the management of the school in question for the relief claimed by the writ-petitioner? As already stated, the school is a recognised one and the relief prayed for in the writ petition is declaration that the resolution and notice for reversion is illegal. Therefore, if the declaration is granted it will amount to reinstatement of the petitioner as the Vice-Principal of the school a consequence to the declaration. The legal status of an employee in a privately managed college and whether a contract for personal service can be specifically enforced came up before the Supreme Court in Executive Committee, Vaish Degree College v. Lakshmi Narain [1976 - I L.L.N 474]. The facts in that case were thus. Executive Committee in Vaish Degree College which was Registered under the Registration of Co-operative Societies Act was initially affiliated to Agra University and later to the Meerut University. The service of the Principal of the college who was appointed after obtaining formal approval of the Vice-Chancellor was terminated about two years later. The Principal challenged the order of termination in a suit filed by him. The Supreme Court has after considering the earlier decisions of the Court, held, in Para. 18, at page 484:
“On consideration of the authorities mentioned above it is clear that a contract of personal service cannot ordinarily be specifically enforced and a Court normally would not give declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer. This rule, however, is subject to three well recognised exceptions—
(i) where a public servant is sought to be removed from service in contravention of the provisions of Art. 311 of the Constitution of India;
(ii) where worker is sought to be reinstated on being dismissed under the industrial law;
(iii) where a statutory body acts in breach or violation of the mandatory provisions of the statute.”
A similar question again came up for consideration in Dipak Kumar v. DPI [(1987) 2 SCC 252 : A.I.R 1987 S.C 1422]. In that case Dipak Kumar was appointed Lecturer in English in Lady Kens Girls College, Shillong, which was a Government aided college. Later his services were terminated. The Supreme Court refused to grant declaration that Dipak Kumar continued to be in service of the college and that he was entitled to all the benefits following from the declaration. However, the Supreme Court, by exercising the power under Art. 136 of the Constitution, directed the Slate of Meghalaya to grant three years' salary and allowances to the teacher with effect from the date of termination.
10. In Audi Mukta [1989 - II L.L.N 281] (vide supra), at Para. 13, at page 285 it was observed:
“The decision in Vaish Degree College [1976 - I L.L.N 474], was followed in Deepak Kumar Biswas case [(1987) 2 SCC 252 : A.I.R 1987 S.C 1422] (vide supra). There again a dismissed lecturer of a private college was seeking reinstatement in service. The Court refused to grant the relief although it was found that the dismissal was wrongful. This Court instead granted substantial monetary benefits to the lecturer. This appears to be the preponderant judicial opinion because of the common law principle that a service contract cannot be specifically enforced.”
In Para. 15, at page 286 it was observed thus:
“If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied….”
11. The law laid down by the Supreme Court in the abovecited cases may now be summarised. A service contract cannot be specifically enforced except, in the cases of civil servant, workmen under the industrial laws, and employee or officer under statutory body and governed by the statute. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty, mandamus will not lie.
12. Although a private educational institution performs public duty in so far as imparting of education is concerned, it may not discharge public duty in other matters. The present case is purely of a private institution, and the management of the school is also a private body. Therefore, if the right of the employees in this school is purely of a private character, the management preforms no public duty in this regard. The petitioner is an employee of a private body. He is not a civil servant nor a workman under the industrial law. This being the position, if the petitioner is directed to be reinstated in service it would be against the preponderant judicial pronouncement of the Court that a service contract cannot be specifically enforced. Therefore, the alleged right of the petitioner in this case is of a private character, and no mandamus can issue and no petition for mandamus will lie.
13. Learned Single Judge issued the writ on the ground that principle of natural justice was violated. Even if a writ lies against the management of the school, it is to be examined whether principle of natural justice is attracted in such a case.
14. The next question which, therefore, arises for consideration is whether the principles of natural justice would be attracted in the present case. It has already been concluded that the school in question is a private institution (not Government aided school), and that the alleged rights of the petitioner are of purely a private character. Therefore, the law of master and servant shall apply in such a case. This being the situation, no prior notice or affording the servant of an opportunity to have his say is required before termination or dismissal. If the servant sues the master and the master satisfies the Court that the master was justified in terminating or dismissing the service, it will be sufficient. The view taken by us finds support from a decision in Ridgway v. Hungerford Market [(1835) 3 Ad and EL 171]. In that case, it was held that it was sufficient if, when the servant sued the master, the master satisfied the Court that he was justified in terminating the service (see also Halsbury's Laws of England, 4th Edn., Vol. 16, Para. 648). Therefore, the principle of natural justice is not attracted in such a case.
15. Keeping the above principle in view, let us now examine the case on hand. The management has explained that the seniority was required to be determined as a complaint was made by Smti Ratna De to the effect that the petitioner who was junior to her had been promoted to the post of Vice-Principal. Before determination of the seniority, the petitioner was given notice to show cause as to why his seniority should not be counted from 1 June 1978. He submitted his reply to the show cause and also participated in the meeting of the managing committee held on 4 February 1989. The managing committee, on 4 February 1989 after considering the materials before it, resolved that the petitioner was junior to Smt. Ratna De by giving reasons thereof and Smt. Ratna De was promoted (see Annexure II to the counter). Promotion of a teacher who is senior to the petitioner to the post of Vice-Principal and reversion of the petitioner from the post of Vice-Principal which he was holding in the temporary capacity, we are of the view, was justified.
16. For the foregoing reasons, the petitioner is entitled to no relief. Accordingly, the appeal is allowed and the judgment of the learned Single Judge made in Civil Rule No. 476 of 1989 is set aside, writ petition is dismissed accordingly, No costs.