JUDGMENT Hon’ble Attau Rahman Masoodi, J.—The universal truth ‘man is mortal’ is disproved by certain people of exemplary genius like Claude Martin whose last testimony contained in a will, digitized copy of which is placed on record, testifies his commitment for the cause of education. Each word of the testimony testifies the nobility of soul which rested in the body known by his name, the memory lasts even today in the epitomic form of living institutions i.e. La Martiniere Colleges. The institutions, two at Lucknow (Boys and Girls) undoubtedly are of great repute, not only in terms of education but also the standard of discipline maintained. The institution is presently managed under the able administration of its Principal Mr. C. McFarland whose commitment to the cause undoubtedly is not of unquestionable testimony. 2. Contrary to this belief, a simple issue which could have been resolved by a person of his eminence has surfaced eliminating in a legal battle before this Court since six months and the outcry for justice is loud looking to the worth of a student whose merit and performance is said to be not the least cause of present controversy but for some behaviour which his father in the capacity of natural guardian is alleged to have indulged into. This exercise has resulted into the appellant becoming the ultimate victim who stands deprived of his admission in a prestigious institution of his choice where he has been studying since the last more than thirteen years and performing well for earning a place as a student being at par with his other meritorious colleagues. 3. This special appeal essentially arises out of the judgement rendered by learned Singe Judge in Writ Petition No. 4229 (MS) of 2015 which though having been entertained has been found non-maintainable for the relief sought therein. 3. This special appeal essentially arises out of the judgement rendered by learned Singe Judge in Writ Petition No. 4229 (MS) of 2015 which though having been entertained has been found non-maintainable for the relief sought therein. The judgement rendered by the learned Single Judge, which in our considered opinion, is flawless declines to entertain the relief by giving the following reasons: “Based on the aforesaid discussion specially the pronouncement of Supreme Court in Ramesh Ahluwalia (supra), wherein a writ petition under Article 226 against a private unaided educational institution was held to be maintainable on the ground of performance of public functions and the decision BCC case (supra), even if it is assumed that this writ petition at the behest of the petitioner against a private educational institution is maintainable, it would only be half the job done and the question would still remain whether in the facts of the present case there is any such statutory or positive obligation based on public law element or as stated in the Anadi Muta’s case in para 22 thereof whether there is any such duty imposed upon the school for admitting the student in standard XI by Charter, Common law, Custom or Contract or not. The fact that a writ petition is maintainable under Article 226 of the Constitution does not ipso facto lead to the issuance of a writ. A writ petition may be maintainable yet a writ or an order or direction in the nature of such a writ may not be liable to be issued. Assuming the maintainability of this petition it is the second question which requires consideration. The counsel for the petitioner was not able to place before the Court any statutory rules imposing any statutory obligation on the opposite parties conferring a corresponding right in favour of the petitioner against the respondent institution. He was also not able to show any such obligation imposed by any Charter, Common law, Custom or Contact between the parties. As far as reference by the petitioner to the enquiries conducted by the State authorities and directions issued by them to the respondent institution are concerned, there is no statutory backing to justify such action on their part. The assertion that the action of respondent school being arbitrary was hit by Article 14 of the Constitution has been made only for being rejected. The assertion that the action of respondent school being arbitrary was hit by Article 14 of the Constitution has been made only for being rejected. The Fundamental Right under Article 14 of the Constitution is available against a State and its authorities and not against a private body certainly not for maintaining a writ petition under Article 226 of the Constitution against such bodies. Arbitrary action, if any, may give cause for the aggrieved person to initiate civil action before the Civil Court but not a writ petition against a private educational institution. The opposite parties have been able to demonstrate that admission to standard XI is a fresh admission and not an automatic promotion, a stand supported by learned Senior Advocate Sri Nagar, who appeared and argued on behalf of Indian School Certificate Board and placed before the Court the relevant Regulations in this regard. It is unfortunate that the institution has disowned its student of 13 years. It may or may not be having good reasons to support its action but there is no doubt that there was no statutory or other obligation as referred hereinabove on the part of the school which could attract the issuance of a writ as prayed for in the writ petition. The first relief claimed in the writ petition is for issuance of a writ of certiorari quashing the letter dated 21.6.2015 written by the Principal of the School, which is a private unaided educational institution. Moreover the said letter is in response to some letter written by the District Inspector of Schools Anglo India Schools Lucknow. Issuance of a writ of certiorari for quashing a reply such as the one contained in the letter dated 21.6.2015 is unheard of. The claim for issuance of such a writ is not supported by any decision. A writ of certiorari cannot be issued to quash a letter/reply sent by the Head of the private Institution. The Indian School of Certificate Board to which the institution is affiliated, is, itself not a statutory authority nor any effort was made by the petitioner to prove that it was. In view of the discussion made hereinabove it hardly needs to be emphasized that in the facts of the present case, no case is made out for issuance of a writ of certiorari or mandamus as prayed for in the writ petition. In view of the discussion made hereinabove it hardly needs to be emphasized that in the facts of the present case, no case is made out for issuance of a writ of certiorari or mandamus as prayed for in the writ petition. In view of the above discussion, the writ petition fails and is hereby dismissed.” 4. The learned Single Judge has referred to and we reiterated the relevant observations and guiding principles made by the Apex Court in the case of Federal Bank v. Sagar Thomas, (2003) 10 SCC 733 , wherein the maintainability of a writ petition against a private body discharging public duty or positive obligation of public nature is carried out, yet in the light of the reasons recorded as above, the learned Single Judge found it difficult to grant the relief in favour of the appellant for the reason that admissions of students in the institutions were in the realm of a private affair and such a subject could not be expanded to the degree of public duty which, of course, would mean the issues like securing general safety of the students, maintaining cleanliness in the institution and adhering to the other norms for upgrading the standards of education etc. 5. It is true that admissions in a privately managed educational institution though recognized by the Government and affiliated to the Council for the Indian School Certificate, is strictly a private affair falling outside the domain of Article 226 of the Constitution, yet the tenor of letter dated 21.6.2015 and the rules of admission contained in Annexure-5 to the writ petition, circulated for the admissions to Class XI course 2015-17 meant for applications to be made by the students from La Martiniere College, for ready reference are extracted below: “The D.I.O.S. Anglo India Schools, Lucknow (U.P.) Dear Sir, I am in receipt of your letter No. 391-92/2015-16 dated 15th June, 2015 regarding a complaint by Dr. Om Prakash Gupta in reference to the admission of his son to Class 11 in La Martiniere College, Lucknow. In this regard, I am to inform you that - 1. Admission to Class 11 is the prerogative of the Principal of this minority unaided institution. 2. Admission Rules, widely publicized, indicate that admission to Class 11 is not an automatic matter of promotion. 3. In this regard, I am to inform you that - 1. Admission to Class 11 is the prerogative of the Principal of this minority unaided institution. 2. Admission Rules, widely publicized, indicate that admission to Class 11 is not an automatic matter of promotion. 3. The candidate, Vatsal Gupta was not considered suitable for admission to Class 11 for the session 2015-16 in this College, This is for you kind information. Thanking you. Yours faithfully, Sd/- (C. McFarland) Principal No. : DIOS/15/11152 Date: 21st June, 2015 *** La Martiniere College Lucknow ADMISSION TO CLASS XI-I.S.C(YEAR 12) COURSE-2015-17 (Only for applicants from La Martiniere College) 1. Students of La Martiniere College, Lucknow, who names are listed below in the select streams are offered admission for the I.S.C course of 2015-17. The minimum marks for eligibility for admission are given below. 2. Application Form shall be available on payment of Rs. 1000/-, in case, in the College Office on 10, 11 & 12 June, 2015. 3. NOTE: Admission is a privilege, not a right Students who have passed the ICSE examination from La Martiniere College SHALL NOT BE ADMITTED AUTOMATICALLY to Class XI. The Principal reserves the rights to deny admission to any application without assigning a reason. (underlined by us) 4. The Application Form must be completed and submitted at the College office on 15,16 & 17 June, 2015. 5. The session for Class 11 shall commence on 1 July, 2015. If a student who is accepted for admission does no report on time, the offer of admission may be cancelled. Admission is subject to the condition that FEES FOR THE ENTIRE ACADEMIC YEAR 2013 SHALL BE PAID IN ADVANCE AT THE TIME OF ADMISSION. Fees shall be remitted vide Bank Draft/Pay Order/Banker’s Cheque drawn in favour of La Martiniere College, Lucknow SB Flexi 381502050000114. The amount of fees to be remitted is given below.** 6. The Principal reserves the right to alter the above-mentioned combinations without prior notice. The College offers the following courses: HUMANITIES COMMERCE SCIENCE(MATH) SCIENCE(Bio) (i) English English English English (ii) Hindi/Mathematics/ Art Hindi/ Mathematics/ Art/Physical Edu. The amount of fees to be remitted is given below.** 6. The Principal reserves the right to alter the above-mentioned combinations without prior notice. The College offers the following courses: HUMANITIES COMMERCE SCIENCE(MATH) SCIENCE(Bio) (i) English English English English (ii) Hindi/Mathematics/ Art Hindi/ Mathematics/ Art/Physical Edu. Hindi/ Computer Science Biotechnology/ Physical Education Hindi/ Computer Science/ Physical Education (iii) Economics/ Physical Education Economics Physics Physics (iv) History Commerce Chemistry Chemistry (v) Political Science Accounts Mathematics Biology *Minimum Marks for Eligibility for Admission to Class XI STREAM/SUBJECT COMBINATION Science with Mathematics 70% in Maths 65% in Science Science with Biology 60% in Science Commerce (without Mathematics) 65% Aggre. (Best 5 subjects) 70% in Mathematics Commerce(without Mathematics) 65% Aggregate 65% in Mathematics Commercial Studies OR Economics as subjects in Class 10 Humanities with Mathematics 70% in Mathematics Humanities with Economics 65% in Mathematics Humanities without Eco. & Maths 45% Aggregate (Best 5 subjects) ** Fees for applicants from la Martiniere College CLASS RESIDENT SCHOLAR RESIDENT SCHOLAR (with Computer Science) DAY SCHOLAR DAY SCHOLAR DAY SCHOLAR (with Computer Science) Humanities 158454 160554 55410 55410 Commerce 158454 160554 55410 55410 Science (with Biology) 159774 161874 56730 56730 Science (with Biology & Bio-Technology) Science 160674 160674 57630 57630 Science (with Mathematics) 159354 161454 56310 58410 Science (with Mathematics & Bio-Technology) 160254 160254 57210 57210 No. Date: 01 June 2015 Sd/- (C. McFarland) Principal” 6. The lofty cause of education reflected in the will of Claude Martin and well managed over the last centuries would not have been a reality unless it stood recognized by law of the land.. The management and administration of the educational institutions has undergone a tremendous change post-independence of this Country. The absolute monarchy is over and the Constitution of India has found its place to govern the nation as per its tenets, of which Part-III is a basic feature. Article 19 of the Constitution, through which a legal entity derives its rights to excel in the field of public services and education as of today, comes within the fold of public duty, the position is no more res integra. The fixation of criteria for admission essentially is part of this duty and for this reason alone, the conditions for affiliation provide twin requirements i.e. ‘NOC’ from the State Government and disclosure of the admission process which aspect does not seem to have been brought to the notice of learned Single Judge. The fixation of criteria for admission essentially is part of this duty and for this reason alone, the conditions for affiliation provide twin requirements i.e. ‘NOC’ from the State Government and disclosure of the admission process which aspect does not seem to have been brought to the notice of learned Single Judge. The rules extracted above are the only material which the respondent institution has relied upon to deny admission to a meritorious student who is otherwise fully eligible and qualified. 7. The import of the rule as a matter of general principle, in the form in which it is expressed does call for an interpretation in the light of Article 14 of the Constitution of India, even for the reason that even a private contract between the parties, if found arbitrary and unjust, would not be recognized contrary to the fundamental conscience of fair policy. 8. At this juncture, it would be appropriate to mention the arguments of Sri J. Nagar, learned Senior Counsel for the Council for the Indian School Certificate. He has pointed out from the regulations as contained in Chapter 1 Clause D, which is extracted hereunder: “D. Conditions of Entry 1. Entry to the Indian School Certificate Examination in the case of eligible candidates who are being entered for the first time is restricted to candidates with a minimum of 75% attendance of the working days during each year of the two-year course at school(s) affiliated to the Council and registered for the Indian School Certificate Examination. The last date of computing attendance at schools is January 31, of each of the two -years course. Candidates may be entered only by the school they are attending and in this respect, the decision of the Head of the School is final.” 9. A perusal thereof clearly empowers the Head of the School with a final decision on admissions. The said clause also indicates the minimum of 75% attendance of the working days during each year of the two-years course. 10. The Principal of the college does have a right to deny permission to any student but reasons therefor have to be just and proper. The said clause also indicates the minimum of 75% attendance of the working days during each year of the two-years course. 10. The Principal of the college does have a right to deny permission to any student but reasons therefor have to be just and proper. In the instant case, the counter-affidavit filed by the respondent college, does not utter a single word against the merit and suitability of the student for giving admission in class XI except that the admission has been denied to the appellant on the basis of some confidential process undertaken by the Principal for judging the suitability of the candidate as his father had indulged into filing of complaints. 11. At this juncture, the arguments of Sri J. N. Mathur, learned Senior Counsel about the conduct of the appellant’s father deserves mention. He submits that his behaviour and the manner in which he filed successive complaints relating to realisation of some small funds or about involving the students into some extra curricular activities led the Principal of the institution to believe that the father of the appellant had virtually opposed the manner in which the school was conducting itself. According to Sri Mathur, such complaints were baseless and were unnecessarily generated, coupled with the influence being exercised at the Governmental levels to pressurize the Principal of the institution to take such action which was resisted by the institution. 12. Sri Mathur also orally submitted that the Principal of the institution has informed that the manner in which appellant’s father had behaved with the teachers of the institution also added to this belief that the continuance of the appellant would be a constant source of disturbance for the institution and to the students at large. Sri Mathur, therefore, submitted that it was in this background that it was ultimately decided not to continue the appellant and which leaves no room for doubt that the decision was neither mala fide nor arbitrary but was founded on plausible reasons. He has also, therefore, defended the action of the Principal and also invited the attention of the Board to the various paragraphs of the counter-affidavit. 13. We may point out that neither the rules of admission nor the rules of affiliation of the Board do anywhere indicate that an admission can be denied to student on account of any errant behaviour of his parents. 13. We may point out that neither the rules of admission nor the rules of affiliation of the Board do anywhere indicate that an admission can be denied to student on account of any errant behaviour of his parents. This was a decision taken by the institution in order to avoid any confrontation in future by the father of the appellant. There was, however, no complaint either with regard to the behaviour of the appellant or his merit and performance in the institution. It is correct that in order to ensure a strict discipline and to maintain the prestige of the institution, appropriate action at times, could be undertaken but that has to be balanced with the future career of a student, and the possible scar that may be left on his mind without there being any fault on the part of the student. 14. The issue relating to attendance is yet another hurdle in the passage of the appellant. For this we find that recommendations can be made by the Principal of the institution by the Board in this background and peculiar circumstance, where the appellant has been the victim of circumstances engaged in a prolonged legal battle before this Court. This period which has been spent in litigative pursuit by the appellant, therefore, is a peculiar circumstance, where the Board should and ought to exercise its power of granting relaxation when no fault can be attributed to the appellant on any score. 15. We have made the aforesaid observations without disagreeing with the conclusions drawn by the learned Single Judge only in the interest of a student whose future career may be marred by any such battle lines drawn between the father of the appellant and the school administration. Our observations are founded on principles of equity where the law is dormant enough to enable us to translate our judicial conscience in the interest of a ward who is sought to be discarded on account of the alleged misdeeds of his father. 16. It is here that we would like to mention that this Court in exercise of jurisdiction under Article 226 of the Constitution of India, should step in as a guardian, when the natural guardian has clearly defaulted in the discharge of his duties of maintaining a behaviour conducive to the atmosphere of the school. The Court exercises the jurisdiction of parens patriae. The Court exercises the jurisdiction of parens patriae. In the background aforesaid, the Court cannot be a mute spectator on account of the misdemeanour of the appellant’s father or the resisting attitude of the institution. It is the appellant’s career and his personal conduct that has to be assessed by us for the purpose of allowing him to continue his educational career with the held of the respondent institution. The institution, therefore, should now reconcile itself only to the extent of the future of the appellant and we would not like to compel the institution to forebear the alleged behaviour of the appellant’s father. We cannot but deprecate his conduct in trying to assert himself in a manner that was unwarranted causing unnecessary interference in the functioning of the institution by asking administrative authorities to take any action or hold any enquiry into the matter. In our considered opinion, the same was absolutely uncalled for and we would, therefore, observe that the appellant’s father shall keep himself out of the bounds of the institution, until the appellant completes his educational career. 17. We are the least persuaded by the arguments raised on the legal plain, by Sri Ramesh Pandey, learned counsel for the appellant or the judgements relied upon by him. We say this because the learned counsel ought to have at the threshold before the learned Single Judge or even before us, made an effort to minimise the impact of the misdemeanour of the appellant’s father by a bona fide declaration which was not done presumably due to intransigence on the part of the father of the appellant. In such cases, a litigant should be well advised by his counsel to at least feel the pulse of the Court and not load the proceedings with the dry and barren tenets of law especially while invoking the discretionary extraordinary remedy under Article 226 of the Constitution. 18. In such cases, a litigant should be well advised by his counsel to at least feel the pulse of the Court and not load the proceedings with the dry and barren tenets of law especially while invoking the discretionary extraordinary remedy under Article 226 of the Constitution. 18. It is stated in Para 37 of the counter-affidavit that for maintaining the standards of excellence, it is the duty of the institution to maintain conducive atmosphere for the studies of the students, and the institution in question being an Anglo-Indian school, is beyond the administrative reach of authority of either the District Magistrate or the District Inspector of Schools so far complaints from the guardian of the students, as is the situation at hand where the appellant’s father raised a complaint before the said authorities. 19. It is this complaining attitude of the appellant’s father which ultimately has resulted into denial of admission to the appellant. It is in such peculiar circumstances where the misdemeanour of the father of the appellant has irked the institution bringing them to loggerheads. 20. Looking to the will of the founder of this great institution, we have no doubt that the institution in question enjoys the minority status and rightly so, but in the facts and circumstances of the present case, we may not allow the law and justice to be distant neighbours. 21. We are pained to notice the conduct of appellant’s father but we are equally skeptical about the stand adopted by the institution. Delving into the allegations and counter allegations, we are sure, would lead us nowhere and that would not be conducive to comment upon the litigating parties. 21. We are pained to notice the conduct of appellant’s father but we are equally skeptical about the stand adopted by the institution. Delving into the allegations and counter allegations, we are sure, would lead us nowhere and that would not be conducive to comment upon the litigating parties. We, therefore, propose to dispose of the appeal by issuing the following directions: (i) We direct that the appellant shall be allowed to pursue his educational career in Class XI and XII in the institution in question, provided he does not misconduct himself and for that purpose the institution shall grant him admission so that he is able to complete his course of Class XI and XII and appear in home as well as Board examinations; (ii) We direct the Board to exercise its powers and pass appropriate orders permitting the appellant to complete the aforesaid courses and also to allow him to appear in the examinations without detaining him on the ground of alleged shortage of attendance for which relaxation may be granted keeping in view the peculiar facts of the present case; (iii) The appellant shall make good the deposit of the entire fees and other dues in relation to the pursuit of his studies and anyother demand by the institution according to the rules of the institution. In order ensure this, we direct that the appellant shall deposit a sum of Rs. One lac forthwith through a Bank draft with the institution which shall be subject to final accounting that will also be paid in relation to the dues of the school including fee etc. The appellant’s father shall not raise any objections in relation to such realisation of finances that may be directed by the school from time to time; (iv) The Principal of the institution shall be at liberty to take appropriate action and seek necessary orders from this Court in the event appellant’s guardians indulge into any objectionable behaviour. 22. We have taken this opportunity to exercise our extraordinary jurisdiction in the peculiar facts and circumstances of the present case and our judgement should not be treated to be laying down the law for any such matter relating to admissions and will not be treated as a precedence to the detriment of the institution. 23. 22. We have taken this opportunity to exercise our extraordinary jurisdiction in the peculiar facts and circumstances of the present case and our judgement should not be treated to be laying down the law for any such matter relating to admissions and will not be treated as a precedence to the detriment of the institution. 23. The special appeal is disposed of with the aforesaid directions and the judgement of the learned Single Judge dismissing the writ petition, would stand modified to the aforesaid extent. ———————