Teachers in unaided institutions discharging public duties are amenable to writ jurisdiction, despite being contractual employees, and review cannot be based on merits alone.

1. Heard finally with the consent of both the parties. This review petition under Order 47 Rule 1 of CPC has been filed assailing the order dated 09.05.2023, passed in W.A. No. 1619/2022 whereby, the writ appeal has been dismissed.

2. Brief facts of the case are that the respondent Nos.2 to 17 had approached this Court by filing W.P. No.11165/2021 claiming the reliefs pertaining to the payment of salary by the respondent No.5/School.

3. The review petitioners had filed an application I.A. No.3412/2022 seeking dismissal of the writ petition on account of its maintainability as a preliminary objection on the ground that the respondent No.5/School is an unaided Educational Institution and the private respondents herein were employed in the aforesaid school on contractual basis only as teachers. In the application it was stated that the private respondents have claimed the reliefs pertaining to payment of salary which does not involve any sort of public functions on the part of review petitioners, therefore, the petition is not maintainable qua the review petitioners. The learned Single Judge overruled the objections with regard to the maintainability vide order dated 28.10.2022, passed in W.P. No.11165/2021 holding that the writ petition under Article 226 of the Constitution of India is maintainable.

4. Being aggrieved, the review petitioners filed W.A. No.1619/2022. The writ appeal was also dismissed vide order dated 09.5.2023 relying on various judgments of the Apex Court wherein, it is held that the writ petition would be maintainable where the employees/teachers are discharging public function. The writ Appellate Court held that the school run by the review petitioners, being an unaided school by virtue of Section 2 (n) of the Right of Children to Free and Compulsory Education Act, 2009 (in short the "Act of 2009") coupled with Rules in the name of Right of Children to Free and Compulsory Education, Rules, 2011(hereinafter referred to as "Rules of 2011") were discharging a public duty as was cast upon it by the said statutes and maintained the order passed by the learned Single Judge. Being aggrieved, the present review petition has been filed.

5. Learned counsel for the review petitioners submitted that this Court failed to consider the judgment of the Apex Court in the case of St. Mary's Education Society and Ors. Vs. Rajendra Prasad Bhargava and Ors. (2023) 4 SCC 498 in which it is held that the action impugned before the writ court has no nexus with public element, even though the private body in question may be discharging public functions, the writ jurisdiction cannot be invoked in such a case. Learned counsel pointed out that this ground was specifically raised even before the learned Single Judge as well as before the Appellate Court, however, this aspect escaped attention of this Court. Therefore, the order passed in the writ appeal needs to be reviewed.

6. Shri Rishiraj Shrivastava, learned counsel appearing for the private respondents vehemently opposed the prayer and submitted that though the judgment of St. Mary's Education Society (Supra) was considered by the learned Single Judge, however, while coming to the conclusion held that a teacher, undoubtedly is an employee, who imparts education on behalf of the unaided educational institution, has a direct nexus to the main purpose of the educational institution and dismissed the objection.

7. Even the Appellate Court in writ appeal relying on various judgment of the Apex Court came to the inference that the employees were discharging public duty cast upon them by virtue of the statutes and as such, the publ