ORDER

Heard finally with the consent of both the parties.

1. The present writ appeal under section 2(1) of the Madhya Pradesh Uccha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 has been filed assailing the order dated 28.10.2022 passed by the learned Single Judge in W.P. No. 11165/2021 whereby the learned Single Judge has rejected the preliminary objection with regard to maintainability of the writ petition against private unaided minority educational institution and held that the writ petition is maintainable against the private unaided institutions.

2. Brief facts of the case are that the appellant/respondent (respondent in writ petition) is a private unaided minority educational institution imparting education to students in Indore and does not receive any grant either directly or indirectly, from the Government. The appellant is affiliated to Council for the Indian School Certificate Examinations(for short 'CISCE' hereinafter) Thus, appellant is a private institution and is solely dependent on the fees which is received from the parents for day to day functioning including salary of its teaching and non-teaching staff.

3. The respondents herein had filed a writ petition bearing W.P. No. 11165/2021 challenging their termination. The respondents herein have prayed for the following reliefs in the writ petition :

“ Appropriate writ, Order or Direction may kindly be issued that,

(1) Retrospective termination of the petitioners be held as illegal and be set aside.

(2) Respondent No.5 be directed to make payment of full salary to the petitioners till date, including the payment of back wages alongwith interest of 12% p.a. thereon.

(3) Respondent No.3 be directed to initiate inquiry against respondent No. 5 for illegalities committed by respondent No. 5.

(4) Respondent No. 4 be directed to cancel the affiliation of respondent No.5. Any other relief that this Hon'ble Court may deem fit in the facts and circumstances of this case may kindly be passed in the interest of justice.”

4. During the pendency of petition, the present appellant (respondent No.5) filed preliminary objection with regard to maintainability of the writ petition on the ground that it is a settled principle of law that the relief as sought by the respondents in the writ petition under Article 226 of the Constitution of India cannot be granted by this Court, as the appellant is a private unaided minority institution. The respondent No.2 to 17 were appointed as teachers by the appellant purely on contractual basis governed by the service rules of the institution, therefore, the writ of mandamus cannot be issued against a private body, such as the appellant. The learned counsel for the appellant submitted that on the aforesaid grounds, the writ petition ought to have been dismissed by the learned Single Judge.

5. Learned counsel further submitted that from the appointment order, it is clear that the respondent(s) No.2 to 17 were appointed purely on contract basis and thus the issue of termination was covered under the ambit of private law and as such no public element was involved. It is settled principle of law that private unaided minority institution such as appellant herein can be made amenable only when the action and inaction of such institution relates to public function performed by such institution whereas the issue under challenge in the said writ petition was arising out of completely private contract.

6. Learned counsel for the appellant relied upon the order passed in the case of Apollo Tyres Ltd. v. C.P. Sebastian reported in (2009) 14 SCC 360 wherein it has been held that “ a contract of personal service includes all matters relating to the service of employee – confirmation, suspension, transfer,termination etc”. Thus, by no stretch of imagination, the learned Single Judge ought to have dismissed the writ petition filed against the present appellant.

7. On the other hand, learned counsel for the respondents opposed the prayer and su