Ram Saran Shastry v. State of West Bengal — 1995 DIGILAW 64 (CAL)

Judgment Satyabrata Singh, J. 1. The petitioner in this application, inter alia, has prayed for the following reliefs: (a) a writ in the nature of mandamus commanding the respondents not to give effect and/or further effect to the Annexures "D" and "E" to the petition and/or granting approval to take step for getting the approval of the petitioner forthwith and/or to release of the D.A. to the petitioner forthwith; and (b) a writ of certiorari calling upon the respondents to produce all the relevant records relating to the case and after persual of the same quashing the same. 2. The petitioner admittedly was appointed as a Sanskrit Teacher of Shri Daulatram Nopany Vidyalaya (hereinafter referred to as 'the School') in March 1972. On or about March 13, 1992 the District Inspector of Schools, Secondary Education, directed the head of the Institution to inform him justifying the legality of the constitution of the Managing Committee, failing which, it was threatened, the financial grant would not be released. On or about March 31, 1992 Sri C. D. Singh and three other approved Teachers filed a writ application in this Court questioning the aforementioned order of the District Inspector of Schools, thereupon an interim order was passed directing the concerned respondent to make payment of dearness allowance to teaching and non-teaching staff of the School. On February 23, 1994 the District Inspector of Schools made an enquiry; from the Headmaster of the School as to whether the petitioner had been getting D.A. The petitioner made a representation to the Secretary of the School for getting D.A. released by the State as also for approval of his services by the Board on April 23, 1993 and again on January) 12, 1994. 3. According to the petitioner, he could not attend the School for some time because of his illness. 4. The Rector of the School, however, by his letters dated January 31, 1994 and February 8, 1994 informed him that he had not checked all note books and that all the ticked pages were full of mistakes. He pointed out certain irregularities on the part of the petitioner. The petitioner replied to the said letter of the Rector by his letter dated February 6, 1994. He pointed out certain irregularities on the part of the petitioner. The petitioner replied to the said letter of the Rector by his letter dated February 6, 1994. By reason of the impugned order dated February 29, 1994, the petitioner was informed that he would not be allowed to take classes in Hindi and he was directed to take classes only in Sanskrit, which were fourteen in number, between 11.00 A.M. and 2.00 P.M, from June 1, 1994. 5. The petitioner thereafter filed this writ application on March 29, 1994. In the meantime, the Rector of the School by a letter dated June 30, 1994 asked the petitioner to submit the revised syllabus to the Principal by July 4, 1994. 6. Mr. Sanyal appearing on behalf of the petitioner has submitted that the petitioner is a highly qualified Teacher and throughout his career he had been teaching in Hindi and Sanskrit subjects. The learned Counsel submits that out of seventy-five Teachers engaged in the School, only thirty-six Teachers are approved, which, according to the petitioner, is now thirteen as twenty-three of them have already retired and thus at present sixty-two Teachers are not approved Teachers. The learned Counsel, therefore, submits that as a large number of posts of approved Teachers arc vacant, the petitioner would be considered therefor and this Court should also set aside the impugned order of punishment. 7. In a supplementary affidavit filed by the petitioner it has been brought to the notice of this Court that the respondent School has not only reduced the classes of the petitioner but has also reduced his salary to the extent of about half. 8. Mr. Sanyal, learned Counsel appearing on behalf of the petitioner, submits that at the time of his appointment he was given to understand that the School being an aided School of the State and Government D.A. would be payable to him, his services would be approved by the State. According to the learned Council, the respondents and particularly the Managing Committee of the school was statutorily obliged to act in terms of Rule 28 of the Rules framed under the West Bengal Secondary Education Act. The learned Counsel pointed out that the petitioner had filed representations on 23rd April, 1,977 and 12th January, 1994 to the Secretary of the said School, but no order has been passed thereon. 9. Mr. The learned Counsel pointed out that the petitioner had filed representations on 23rd April, 1,977 and 12th January, 1994 to the Secretary of the said School, but no order has been passed thereon. 9. Mr. Sanyal submits that the writ petition as against the respondent Managing Committee is maintainable keeping in view the promises held out to the petitioner. It was submitted that the school exercises public function and thus it is amenable to writ jurisdiction of this Court. The learned Counsel in support of his contention cites AIR 1985 SC 1621, AIR 1985 SC 330 , AIR 1969 SC 1306 and AIR 1978 SC 47 . It was submitted that an unapproved teacher stands on the same footing as an approved teacher. Mr. Sanyal contends that keeping in view the fact that the Managing Committee of the School does not have any independent role to play but is controlled by the State which is deep and pervasive, the Managing Committee should be construed to be a 'State' within the meaning of Article 12 of the Constitution of India. 10. It is submitted that the mala fide on the part of the Managing Committee of the School would be evident from the fact that the impugned order had been passed immediately after the petitioner filed application for sending his representations to the proper authorities. It was, therefore, submitted that the doctrine of equitable estoppel would applyi as against the respondent school. 11. Mr. Arunava Ghosh, learned Counsel appearing on behalf of the respondents 4 to 15, however, submits that the writ petition suffers from mis-joinder of causes of action inasmuch as the petitioner is not entitled to pray for two reliefs in one writ application, namely, (1) approval of his appointment and (2) for restoration of his original salary which had been reduced on pro rata basis after he had been relieved from taking Hindi classes and was allowed to take Sanskrit classes only. 12. He further submitted that in view of the fact that the petitioner's appointment was not in terms of the provisions of Rule 28 of the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided) 1969 (hereinafter referred to as the said Rules), the writ application is not maintainable. It was submitted that the petitioner being admittedly an unapproved teacher, his appointment was based on purely private contract. It was submitted that the petitioner being admittedly an unapproved teacher, his appointment was based on purely private contract. The petitioner was also not appointed against the sanctioned post and thus he does not have any legal right to obtain a writ of1 or in the nature of mandamus as has been prayed for in the writ petition. The learned Counsel submits that even assuming that the school is amenable to writ jurisdiction, the appointment of the petitioner being contrary to Rule 28, the act of the Managing Committee is ultra vires the Statute and on that ground too a writ of mandamus cannot be issued. The learned Counsel submits that even if this Court directs the District Inspector of Schools to consider the matter relating to grant of approval of the petitioner, the case of the petitioner cannot be considered in isolation admittedly 62 unapproved teachers are working in the School. The learned Counsel in support of his aforementioned submissions relied upon Executive Committee in Vaish Degree College vs. Lakshmi Narayan reported in AIR 1976 SC 888 and 1991(2) Cal CRN 451 : 1991 Labour & Industrail Cases 2261. 13. The questions which, therefore, arise for consideration in this application are (1) whether the petitioner is entitled to obtain a writ of mandamus directing the respondents to approve his service, and (2) whether the impugned order, directing deduction of the salary of the petitioner is sustainable. 14. In terms of Article 226 of the Constitution of India this Court can issue a writ only against the State. However, a public body: exercising public function is also amenable to writ jurisdiction of this Court. 15. There cannot be any doubt that keeping in view the fact that imparting of education is the function of the State, a writ application would be maintainable as against an aided school. 16. In Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mohatsav Smarak Trust & Ors. vs. V.R. Rudani & Ors., reported in AIR 1989 SC 1607 it has been held that an aided school is amendable to writ jurisdiction of this Court. 17. In Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jawnti Mohatsav Smarak Trust & Ors. 16. In Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mohatsav Smarak Trust & Ors. vs. V.R. Rudani & Ors., reported in AIR 1989 SC 1607 it has been held that an aided school is amendable to writ jurisdiction of this Court. 17. In Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jawnti Mohatsav Smarak Trust & Ors. vs. V.R. Rudani & Ors., reported in AIR 1989 SC 1607 , the Supreme Court has, inter alia, held that a writ of mandamus can be issued when the respondents have a duty of a public nature-It has been held : "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. It has to be appreciated that the appellants trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control “maintenance and working of educational institutions." The Apex Court further stated the law thus: "The law relating to mandamus has made the most spectacular advance. It may be recalled that the remedy by prerogative writs in England started with very limited scope and suffered from many procedural disadvantages." Having traced out the development of law in England, the Apex Court observed : "There, however, the prerogative writ of mandamus confined only to public authorities to compel performance of public duty. The 'public authority' for the means every body which is created by statute-and whose powers and duties are defined by statute. So Government departments, local authorities, police authorities and statutory undertakings and corporations, are all 'public authorities'. But there is no such limitation for our High Courts to issue the writ 'in the nature of mandamus'. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English Law. Under Article 226, writs can be issued to 'any person or authority. It can be issued "for the enforcement of any of the fundamental rights and for any other purpose. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English Law. Under Article 226, writs can be issued to 'any person or authority. It can be issued "for the enforcement of any of the fundamental rights and for any other purpose. It was further stated : "Commenting on the development of this law, Professor De Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposd 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 Action, 4th Ed. P. 540) we share this view. The judicial control over the fact expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It should remain flexible in meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226." 18. In Mubarak Hussain vs. State of Bihar & Ors., reported in 1992(2) BLJR 716, I speaking for the Division Bench of the Patna High Court observed ;- "22. The submission of Mr. Jai Prakash to the effect that no writ can be issued as against respondent No. 3 has also no force. Respondent No.3, School, is a recognised, institution and, thus, has a statutory duty to perform. 23. Recently in Tejaswini Patil vs. Bangalore University & Ors., reported in 1991 Karn. 352,. it was held that when a college is affiliated to a Board and is governed by ihe provisions of the Act, it is amenable to writ: jurisdiction of the High Court under Article 226 of the Constitution. 25. Yet recently in Raj Soni vs. Air Officer, incharge Administration, reported in AIR 1990 SC 1305 , it was held.: "The recognised private schools in Delhi whether aided or otherwise are governed by the provisions of the Act and the Rules. The respondent management is under a statutory obligation to uniformly apply the provisions of the Act and the Rules to the teachers employed in the School. When any authority is required to act in a particular manner under a statute it has no option but to follow the statute. The respondent management is under a statutory obligation to uniformly apply the provisions of the Act and the Rules to the teachers employed in the School. When any authority is required to act in a particular manner under a statute it has no option but to follow the statute. The authority cannot defy the statute on the pretext that it is neither a State nor an 'authority' under Article 12 of the Constitution of India." It was held by the Karnataka High Court in the aforementioned case :- "Once we find that the activities of a private, educational institution regulated by the provisions of the Act and the Universities Act, the mere fact that the institution is not receiving financial aid, makes no difference for the issue of a writ under Article 226 for the enforcement of the public duty and/or the provisions of the Act." 27. In Francis Jhon vs. The Director of Education & Ors., reported in AIR 1990 SC 423 , it was held ;- "Any private schools which received aid from the Government under the Grant-in-Aid Code, which is promulgated not merely for the benefit of the Management but also for the benefit of the employees in the School for whose salary and allowances the Government was contributing from the public funds under the Grant-in-Aid Code cannot escape from the consequences following from the breach of the Code and particularly where the Director of Education who is an instrumentality) of the State is participating in the decision making process. Under these circumstances we find that the High Court was wrong in upholding that the orders of the Director of Education and of the Dispute Settlement Committee were not amenable to the jurisdiction of the High Court under Article 226 of the Constitution since the matter squarely falls within the principles laid down by this Court in Taka Ram's case, AIR 1984 SC 1621 ." 31. In Monmohan Singh vs. Commissioner, Union Territory, reported in AIR 1985 SC 364 , the Supreme Court held: "The educational institution receiving financial grant from the Government is a State as defined under Article 12 of the Constitution." However, the question which would arise for consideration is whether a teacher who has been appointed without following the procedure prescribed under the law, is protected under the said Rules. The answer to the said question, in my' opinion, should be rendered in the negative. 19. In Life Insurance Corporation of India vs. Escorts Ltd. & Ors., reported in AIR 1986 SC 1370 the Supreme Court held: "For example, if the action of the State is political or soverign in Character, the Court will keep away from it. The Court will not debate academic matters or concern itself with the intricacies of trade and commerce. If the action of the State is related to contractual obligation or obligations arising out of the Court, the Court may not ordinarily examine it unless the action has some public law character attached to it. Broadly speaking the Court will examine actions of state in they pertain to the public law domain and refrain from examining them if they pertain to the Private law field. The difficulty will lie in demarcating the frontier between the public domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in each case with reference to the particular, the activity in which the State of the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and the host of other relevant circumstances. (Underlining is mine for emphasis) 20. In Bihar State Co-operative Marketing Union Ltd., vs. Indian Farmers Fertilizer Co-operative & Ors., reported in 1994(2) BLJ 563 a Division Bench of the Patna High Court relied on Life Insurance Corporation's case (supra) and observed as follows :- "12. * * * * * * * * * * * * "Thus in my opinion, this court in exercise of its power under Article 226 cannot adjudicate upon such a dispute by entertaining a writ application under Article 226 of the Constitution. Moreover, it has been rightly contended by Mr. * * * * * * * * * * * * "Thus in my opinion, this court in exercise of its power under Article 226 cannot adjudicate upon such a dispute by entertaining a writ application under Article 226 of the Constitution. Moreover, it has been rightly contended by Mr. Chatterjee, learned Counsel appearing for the respondents that the petitioners have remedy for settlement of such dispute under s. 74 of the Multi-State Co-operative Societies Act, 1984, by the Central Registration which is wide enough to include even the present dispute which exists between the member and the Board and, thus even according to the Supreme Court decision in the case of Shri Anadi Mukta Sadguru S.M.Y.S.J.N.A, Trust vs. V. R. Dudani (supra), in which it has been held that 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. But besides these, Their Lordships also have held that once the aforesaid are absent and when the party has no other equally convenient remedy, mandamus, cannot be denied." 21. In Arjed Ali vs. Stale of West Bengal, reported in 1991(1) CLT 211, it has been clearly held that if the service conditions of an employee of Co-operative Society is not governed by a statute, a writ will not lie. In that case, however, it was found that the service conditions of the concerned employee is governed under a statute and, therefore, a writ petition was held to be maintainable. 22. It is, therefore, evident that even in relation to a State this Court cannot exercise its jurisdiction under Article 226 of the Constitution of India unless any public law element is involved in the matter. 23. The State of West Bengal enacted the West Bengal Board of Secondary Education Act, 1963 (hereinafter referred to as the said Act) s. 45(2) (d) empowers the State Government to make rules for the composition, power and functions of Managing Committee of institutions which are known as Rules for Management of Recognised Non-Government Institutions (Aided and Unaided) 1969, Rules 28(7) of the said rules reads thus : "In all cases of appointment, both permanent and temporary, the Committee shall issue letters of appointment specifying the terms and conditions of such appointment. In the case of a permanent appointment, a teacher or an employee appointed on probation shall be confirmed on the expiry of the period of probation unless an order to the contrary is issued at least six weeks before the date on which confirmation normally falls due. In the case of an appointment on temporary basis against a permanent post the teacher or the employee so appointed shall be confirmed on completion of two years' continuous satisfactory service in the Institution: Provided that no appointment shall be made in a Vacancy if it is not against a sanctioned post, permanent or temporary". 24. The Director of Education in exercise of his powers conferred upon him under clauses (i) and (ii) of sub-rule (1) and by clause (i) of sub rule (4) of rule 28 of the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 issued directions relating to the manner in which an appointment of a teacher in an aided school can be effected. A bare perusal of the aforementioned rules would demonstrate that before a teacher is appointed who would be entitled to receive salary from the State of West Bengal, the conditions laid down therein have to be fulfilled which, inter alia, are (1) the post must be a sanctioned one, (2) the District Inspector of Schools has granted prior permission for filling up of the vacancy, (3) the vacancy has to be filled up in terms of the said Rules by calling for names of the eligible candidates from the Employment Exchange and/or by issuance of advertisement, (4) a Selection Committee has to be constituted in accordance with the said Rules, (5) the Selection Committee interviews and considers the cases of the eligible candidates and prepares a panel, (6) the Managing Committee approves the panel and sends the same to the District Inspector of Schools for his approval and (7) approval of such appointment is made. 25. The petitioners does not fulfil any of the conditions laid down in the Rules. 26. It is admitted that the post is not a sanctioned one. It is also not disputed that none of the statutory requirements was followed in the matter of appointment of his petitioner as a teacher in the said school. 27. The appointment of the petitioner, therefore, was de hors the statute. 26. It is admitted that the post is not a sanctioned one. It is also not disputed that none of the statutory requirements was followed in the matter of appointment of his petitioner as a teacher in the said school. 27. The appointment of the petitioner, therefore, was de hors the statute. A fortiorari, his services are not protected by any statute and, thus, the same is governed under common law of master and servant. 28. The decisions referred to by Mr. Sanyal may now be taken note of. In Assistant Collector of Central Excise, Chandan Nagar, West Bengal vs. Dunlop India Ltd. & Ors., reported in 1985 SC 330 the Apex Court held "Art. 226 is not mean to short circut or circumvent statutory procedures. It is only when where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Art. 226 of the Constitution." Mr. Sanyal submitted that from the aforementioned passage of the Supreme Court it would appear that where private and public wrongs are inextricably mixed up, a writ petition would be maintainable. The learned Counsel submitted that although in the instant case services of the petitioner are not protected under any statute or statutory, rules, keeping in view the nature of wrongs done to him, this Court should exercise its jurisdiction. 29. The aforementioned contention of the Learned Counsel cannot be accepted. In Dunlop's case aforementioned, the Apex Court was concerned with the jurisdiction of this Court to grant interim order as also entertain a writ application when there exists an alternative remedy. The Supreme Court in the aforementioned case categorically held that the High Court can exercise its jurisdiction only when statutory remedies are entirely ill-suited, to meet the demands of extra-ordinary situation. 30. In this case, the petitioner's conditions of service are not governed by any statute or statutory rules at all. It is now well-known that a decision is an authority for what it decides and not what logically can be deduced therefrom. It is also well-settled that a decision has to be read as a whole and cannot be construed as a statute. 31. It is now well-known that a decision is an authority for what it decides and not what logically can be deduced therefrom. It is also well-settled that a decision has to be read as a whole and cannot be construed as a statute. 31. In this view of the matter, it is not possible, in my opinion, to agree with the contention of Mr. Sanyal that in a case of this nature also a writ petition would be maintainable. 32. In Monmohan Singh vs. Commissioner, Union Territory, Chandigarh, reported in 1985 SC 364, the Supreme Court was considering a case where the condition of service of the concerned Head Master was governed by Punjab Aided Schools (Security of Service) Act (19 of 1969). The Supreme Court in the aforementioned decision came to the factual conclusion that the petitioner was dismissed from service by the new Managing Committee only because he was appointed by the previous Managing Committee. In that case the appointment of the petitioner was confirmed by the competent authority of the Chandigarh Administrator. The Supreme Court in the aforementioned fact situation held- " . . . . . . . . Any agreement, not in consonance with the statutory provisions beneficial to a class in need of protection cannot be given effect to if it stands in derogation of the mandatory provisions of the statute. Section 3 makes it obligatory to hold a disciplinary enquiry before an employee of an aided school can be either dismissed, removed or reduced in rank............." 33. In the aforementioned case it was further noticed that the writ petition was directed against an order of statutory quasi-judicial authority, which was held to be a Tribunal within the meaning of Article 227 of the Constitution of India. The Supreme Court upon taking note of its earlier decision in Ajay Rasia vs. Khalid Mujib Sehra Vardi, (1981) 2 SCR 79 ( AIR 1981 SC 487 ) observed ,"the aided school receiving 95% of the expenses by way of grant from the public exchequer and whose employees have received the statutory protection under the 1969 Act and who is subject to the regulations made by the Education Department of the Union Territory of Chandigarh as also the appointment of Head Master to be valid must be approved by' the Director of Public Instruction, would certainly be amenable to the writ jurisdiction of the High Court. 34. 34. In this case the petitioner had not been appointed in a sanctioned post nor has been appointed upon following the procedure laid down under the Rules. His services are, thus, not protected either by any statutory Act or Rules or Regulation. Monmohan Singh's case (supra) thus, also has no application to the facts of the present case. 35. In Francis John vs. The Director of Education & Ors., reported in 1990 SC 423, the Apex Court again was considering a matter where the Headmaster of a School was subjected to a disciplinary proceeding. The school was recipient of the grant-in-aid as per the Grant-in-Aid Code. The disciplinary proceedings were started against the petitioner in accordance with the Grant-in-Aid Code. In the said decision the Supreme Court relied upon its earlier judgment in Tika Ram vs. Mundikota Shikshan Prasaran Mandai, reported in AIR 1984 SC 1621 . In Tilak Ram's case the Supreme Court observed in para 9 as follows : "In the instant case also we are concerned with the Grant-in-Aid Code. The decision which was challenged before the High Court was the order of the Director of Education dated July 12, 1984 which is fully extracted above. It is further seen that a copy of the above order has been communicated by the Director of, Education not merely to the Management of the School but also to the Zonal Officer, North Education Zone, Mapsa and the Grant-in-Aid Section of the Directorate of Education. If the impugned orders of the Director of. Education and of the Dispute Settlement Committee to which he had referred the case are set aside then the order of termination of service of the appellant, which is pursuant to them would also have to fan. Any private school which receives aids from the Government under the Grant-in-Aid Code, which is promulgated not merely for the benefit of the Management but also for the benefit of the employees in the School for whose salary and allowances the Government was contributing from the public funds under the Grant-in-Aid Code cannot escape from the consequences flowing from the breach of the Code and particularly where the Director of Education who is an instrumentality of the State is participating in the decision making; process. Under these circumstances we find that the High Court was wrong in upholding that the orders of the Director of Education and of the Dispute Settlement Committee were not amenable to the jurisdiction of the High Court under Article 226 of the Constitution since the matter squarely falls within the principles laid down by this Court in Tika Ram's case, AIR 1984 SC 1921 (supra)." 36. In Tika Ram the Supreme Court clearly held that where the right is a non-statutory character, a writ petition will not lie against the Management but in that case reliefs were granted in favour of the petitioner as the petition was directed against an order passed on quasi-judicial proceedings by a Director. 37. In the instant case, the petitioner does not receive any salary or allowances from the Government. No amount is being spent on the petitioner from the public fund. Even the Grant-in-Aid Code is not applicable in the case of the petitioner nor there has occurred any breach of the said condition. 38. On the other hand, in Anupam Ghosh vs. Union of India & Ors., reported in 1991(2) CHN 451 : 1991 Labour & Industrial Cases 2261, upon which reliance has been placed by Mr. Ghosh a Division Bench of this Court upon considering a large number of decisions held that in the matter of termination of a service flowing from a private contract, no writ will lie. It was held in paragraph 9- "Even if it is assumed that the company is "State" within the meaning of Article 12, in our view, no writ should lie against the order of termination passed against the writ petitioner. The nature of the State action impugned in the writ proceeding is required to be considered carefully for deciding as to whether or not the same can be held to be a subject-matter of public law remedy of writ. It is not the mere fact of employment by a public authority or instrumentality per se which makes an action of such instrumentality touching the question of employment of its employee a subject-matter for interference under the constitutional writ jurisdiction. It is not the mere fact of employment by a public authority or instrumentality per se which makes an action of such instrumentality touching the question of employment of its employee a subject-matter for interference under the constitutional writ jurisdiction. In our view, if the right of the employee of an instrumentality or agency of the State flows from private contract between the parties and conditions of service are not governed or controlled by any statutory provisions and the impugned action of the instrumentality or agency in the matter of employment of its, employees has no public law character, there will be no occasion for interference in the writ jurisdiction. In the absence of other consideration, namely existence of statutory provisions, the breach of which is complained in a state action relating to the employment of the concerned employee seeking for a remedy in writ jurisdiction, state action relating to contractual obligations will not be examined unless the action has some public law charater for exercising Constitutional writ jurisdiction. In such a case, the employee of: the agency of, instrumentality may avail other alternative remedies in a different forum. In this connection reference may be made to the decision in Praga Tool's case. It has been held in the said decision that it is well understood that a mandamus lies to secure the performance of a public or statutory duty. It is not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. If• company is a nonstatutory body but incorporated under the Companies Act, there is neither a statutory nor a public duty is imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus nor is there in its workmen any corresponding legal right for enforcement of any such statutory or public duty." 39. The said view has again been taken by another Division Bench of, this Court in Director, Indian Association for the Cultivation of Science, Jadavpur & Ors. vs. Ashoke Kumar Roy & Ors., reported in 1992 (1) CLl 319, wherein it was held "it is firmly the established principle that a Mandamus would not lie in favour of private duties and/or private obligations". The Learned Judges observed: "16. vs. Ashoke Kumar Roy & Ors., reported in 1992 (1) CLl 319, wherein it was held "it is firmly the established principle that a Mandamus would not lie in favour of private duties and/or private obligations". The Learned Judges observed: "16. In the instant case, admittedly, the service of the respondents is not controlled or regulated by any statute or rule having the force of law. It was a purely contractual and outside the domain of public law. Only in case where there are some statutory protection to the service condition of an employee, in that event it would be open for judicial review by the Court. In the absence of any statutory protection of Rules or Regulations having statutory flavour, judicial review by. a writ of mandamus is not available. . . ". 40. For the reasons aforementioned, it must be held that no writ lies as against the Managing Committee of the respondent school at the instance of the petitioner because the writ petition does not involve any public law element in between himself and the concerned respondents. In view of the fact that the statutory rules framed by the State having not been followed in that appointment of the petitioner, it cannot be said that the petitioner has derived any legal right to obtain a writ of or in the nature of mandamus, as has been sought for. The submission of Mr. Sanyal to the effect that the petitioner has a legitimate expectation that his service would be approved in terms of the Rules framed by the State, cannot also be accepted. Only because in the appointment letter allegedly it was stated that the petitioner would be entitled to the Government D.A., the same does not mean that a promise was made by the school authority that he would be a Government servant. In any case, the State is not bound by the purported promise. It is now well known that no relief can be granted only on the basis of legitimate expectation for obtaining a writ of Mandamus. There must exist a legal right in the petitioner and a corresponding legal duty cast on the respondent. Such a legal right being not present in the case of the petitioner, a writ cannot be issued only upon invoking the doctrine of legitimate expectation. 41. The Supreme Court recently in Madras City Wine Merchants Association & Anr. There must exist a legal right in the petitioner and a corresponding legal duty cast on the respondent. Such a legal right being not present in the case of the petitioner, a writ cannot be issued only upon invoking the doctrine of legitimate expectation. 41. The Supreme Court recently in Madras City Wine Merchants Association & Anr. vs. State of Tamil Nadu & Anr., reported in 1994(5) SCC 509 , upon reviewing its earlier decisions as also the decision rendered by the English Courts held- "From the above it is clear that legitimate expectation may arise :- (a) if there is an express promise given by the public authority ; (b) because of the existence of a regular practice which the claimant can reasonably expect to continue; (c) such an expectation must be reasonable. However, if there is any change in policy or in public interest the position is already by, a rule or legislation, no question of legitimate expectation would arise." 42. The managing committee of the school evidently is not a public authority. The petitioner has also not pleaded existence of any long standing practice. On the contrary on the petitioner's own, showing, services of a large number of teachers have not been sent for approval as yet. 43. Reference in this connection may also be made to a recent decision of House of Lords in R. vs. Secretary of State for Transport exparte Richmond upon Themes London Borough Council and others, reported in 1994(1) All E.R. 577 at 599. 44" For the self same reasons, the plea of the petitioner, that doctrine of Promissory Estoppel is attracted in the instant case, can not be accepted as the same applies in respect of a public authority. Essential facts of the said doctrine are:- (i) a representation may be made to induce a course of conduct on the part of the person to whom it is made ; (ii) an act of or omission resulting from the said representation ; and (iii) alteration of position by the promise pursuant to such promise (See Sone Vanaspati vs. State of Bihar, 1995 (1) PLJR Page 2). 45. In Executive Committee of Vaish Degree College Shamli & Ors. Lakshmi Narain & Ors., reported in AIR 1976 SC 888 , the Supreme Court held- "17. 45. In Executive Committee of Vaish Degree College Shamli & Ors. Lakshmi Narain & Ors., reported in AIR 1976 SC 888 , the Supreme Court held- "17. On a consideration of the authorities mentioned above, it is therefore, clear that a contract of personal service cannot ordinarily be specifically enforced and a Court normally would not give a 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 employee. 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 Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; and (iii) where a statutory body acts in breach or violation of the mandatory provisions qf the statute." 46. In Syed Iqbal Ali Imam Raza vs. State of Bihar & Anr., reported in AIR 1994 Patna 167, a bench of five judges stated- "26. In Francis vs. Municipal Councillors of Kuala Lumpur (1962) 3 All ER 633 Lord Morris held :- "When there has been a purported termination of contract of service, a declaration to the effect that the contract of service still subsisted will rarely be made. This is a consequence of the general principle of law that the Courts will not grant specific performance of contracts of service. Special circumstances will be required before such a declaration is made and its making will normally be in the discretion of the Court." Besides that, the instant case stands on a different footing from cases where a Government servant is dismissed, compulsorily retired or otherwise removed from service before expiry of his normal tenure of service, say, before reaching the age of superannuation. The age of superannuation of the judicial officers stands extended upto 60 years but is not automatic. The right to continue in service is not absolute. It is hudged in by the liability to be (compulsorily) retired at the age of 58 on assessment and evaluation, in addition to the compulsory retirement at the earlier stages under the Service Rules. The Evaluation Committee decided not to extend the benefit of the increased superannuation age to the petitioner. The right to continue in service is not absolute. It is hudged in by the liability to be (compulsorily) retired at the age of 58 on assessment and evaluation, in addition to the compulsory retirement at the earlier stages under the Service Rules. The Evaluation Committee decided not to extend the benefit of the increased superannuation age to the petitioner. The decision of the Committee is subject to ratification/enforcement by the Full Court. If the Full Court ratifies/endorses the decision of the Evaluation Committee it will necessarily relate back to 31st January, 1994 i.e., the date on which the petitioner attained the age of 58 years. Granting consequential relief by directing that the petitioner will be deemed to continue in service will result in anamolous situation and will be contrary to the judgment of the Supreme Court. The petitioner cannot claim any right except these under the two judgments of the Supreme Court. Public interest and expediency should deter this Court giving any such relief at this stage. I am satisfied that no consequential relief of any kind can be granted." 47. In Wade & Forsyth's Administrative Law 1994 Edn. at page 1018 it is stated :- In R vs. Crown Prosecution Service ex. p. Hogg (1994) The Times, 24th April, the Court of Appeal upheld the refused of leave to move for judicial review sought by a prosecutor in the Crown Prosecution Service who had been dismissed during the probationery period. The relationship between the Crown as employer and a Crown Servence as employees was a private law relationship as held in Mecloren vs. Home Officer (199) ICR 824 and in this case it lacked the statutory underpinning discussed in R. vs. East Barkshire Health Authority ex. p. Welsh (1985) Q.B, 152, 48. In Union of India vs. M/s. Binani Consultants (P) Ltd., reported 1995 (1) CLT 66 a Division Bench of this Court stated the law thus: "Under the agreement it is clear that the rate of pay phones had been granted under a contract. True this contract has been entered into by and between the Department of the Central Government and the writ-petitioner/opposite-party in respect of a telephone which is established, maintained by the Telephone Authorities. It is in the field of contractual obligation between the parties, it is not the law a Writ Court can intervene in each and every case. True this contract has been entered into by and between the Department of the Central Government and the writ-petitioner/opposite-party in respect of a telephone which is established, maintained by the Telephone Authorities. It is in the field of contractual obligation between the parties, it is not the law a Writ Court can intervene in each and every case. A public Body may have a power to take decision which will in some way effect or vary existing private law right of an individual. An individual may challenge such decision for judicial review. If the source of power is stautory indicating that the matter has a sufficiently public element to render it susceptible judicial review. It is a case of a private law right the individual had to proceed by an ordinary action. The Court has drawn a distinction derived from contract which is a clause as 'private law rights' and rights derived from public law. By 'public law right' the Court generally means the ability to invoke the supervisory jurisdiction of the Court to ensure the public authorities to perform their statutory duties and properly exercised their statutory powers. The state may expressly or impliedly impose restriction on the exercise of contractual power by a Public Body. Judicial review will be available to determine whether contract violates such statutory restriction or there has been breach of contract in violation of the statutory restriction. The Court would be performing the public law supervisory role of ensuring compliance with statutory limitation on the powers of public authorities and would not be dealing with private law issue of what the terms of the contract were or whether they had been broken: 49. In Anand Shankar. Prasad vs. State of Bihar, reported in 1994(2) B.L.J.I. 1, speaking for the Division Bench held: "It is now well known that where an appointment is found to have been made without following the mandatory provisions of the recruitment rules and/or in violation of the provisions of Article 16 of the Constitution of India or by any authority who had no jurisdiction in such matters, the appointment being a nullity, the principles of natural justice have no application in relation thereto." 50. In this view of the matter, no relief can be granted to the petitioner as against the Managing Committee. 51. In this view of the matter, no relief can be granted to the petitioner as against the Managing Committee. 51. However, it goes without saying that the petitioner would be entitled to question the said order of punishment before appropriate forum or may file a suit for damages. 52. The submission of Mr. Sanyal to the effect that the petitioner cannot expect any justice at the hands of the District Inspector of Schools, can not be accepted. No allegation of mala fide has been made against him. 53. A statutory functionary must be allowed to carry out the statutory functions. This Court can neither usurp the jurisdiction of a statutory functionary nor can give any direction as to law and as to in what manner, he should carry out his statutory duties. 54. However, keeping in view the allegations made by the petitioner with regard to the management of the school, :in my opinion, the matter requires serious consideration at the hands of the District Inspector of Schools as also the West Bengal Board of Secondary Education. In the event, it is found by the aforementioned authorities that the respondent school had been violating the norms set up by the State of West Bengal as also the West Bengal Board of Secondary Education in the matter of grant of recognition of the said school as also appointment of teaching and non-teaching staff, the authorities may take such action as against the Managing Committee of the School as it may seem fit and proper and in accordance with law. 55. The District Inspector of Schools is also directed to call for the entire records relating to the teaching and non-teaching staff of the school and consider the matter relating to grant of approval to such teachers who are entitled therefor, if any, in terms of the rules framed by the State of West Bengal and/or directions issued by the Director of School Education. In the event, the District Inspector of Schools finds that the petitioner or any other teacher is entitled for grant of such approval, he may do so at an early date, preferably within a period of 6 weeks from the date of communication of this order. 56. In the event, the District Inspector of Schools finds that the petitioner or any other teacher is entitled for grant of such approval, he may do so at an early date, preferably within a period of 6 weeks from the date of communication of this order. 56. These observations are being made as the Supreme Court recently in (1994) 3 Supreme Court Cases 552 at p. 565 has held that education cannot be converted into commerce nor can the managing committee of a school seek to obtain the said result by relying upon the wider meaning of education. 57. This application is, thus, disposed of with the aforementioned directions and observations, but in the facts and circumstances of the case, there will be no order as to costs. Application disposed of.