$~81 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Decided on: 26.03.2025 + W.P.(C) 19669/2005 RAKESH KUMAR TOMAR .....Petitioner Through: Mr. Anil Mittal, Mr. Shaurya Mittal, Mr. Atul Chauhan, Advocates.

versus D.A.V.COLLEGE MANAGING COMMITTEE .....Respondent Through: Mr. Anurag Lakhotia, Mr. Udit, Advocates. CORAM:

HON’BLE MR. JUSTICE PRATEEK JALAN PRATEEK JALAN, J. (ORAL)

1. The original petitioner, Rakesh Kumar Tomar (deceased), was employed as an Accounts Clerk in the respondent No. 2- D.A.V. Centenary Public School, Sector - 56, Noida, Uttar Pradesh [“the School”]. He had filed this writ petition, directed against orders dated 13.09.2004 and 15.12.2004. By the order dated 13.09.2004, his services were terminated by the School on the ground of “Absence without Leave” for a period of two years. By the communication dated 15.12.2004, his representation against the termination was also rejected.

2. Two preliminary objections have been taken by Mr. Anurag Lakhotia, learned counsel for the School. The first relates to the maintainability of the writ petition in respect of a service dispute against a private unaided school, and the second, to the territorial jurisdiction of this Court.

3. I have heard Mr. Anil Mittal, learned counsel for the petitioners Signature Not Verified Signed By:SOMYA W.P.(C) 19669/2005 Page 1 of 9 (legal heirs of the original petitioner), and Mr. Anurag Lakhotia, learned counsel for the respondent, on the preliminary objections.

4. The first objection is based upon the judgment of the Supreme Court in St. Mary's Education Society v. Rajendra Prasad Bhargava,1 which concerns the maintainability of writ petitions relating to service disputes, at the instance of employees of private educational institutions. The Court considered its earlier judgments on this question, and came to the conclusion that, even if imparting education is taken to be discharge of a public function, this would not attract the writ jurisdiction, for adjudication of individual grievances of employees, which are governed by contractual relationships.

5. The conclusions of the Court have been set out in paragraph 75 of the said judgment and read as follows:

“75. We may sum up our final conclusions as under:

75.1. An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public.

75.2. Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were

1 (2023) 4 SCC 498 [hereinafter, “St. Mary’s”].

Signature Not Verified

Signed By:SOMYA W.P.(C) 19669/2005 Page 2 of 9

regulated by the statutory provisions or the employer had the status of “State” within the expansive definition under Article 12 or it was found that the action complained of has public law element

75.3. It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a constitutional court, its employees would not