JUDGMENT ON BOARD : Sanjay K. Agrawal, J. 1. The present Writ Appeal preferred by the Appellant – Sri Sankara Education Society is directed against the Order dated 8.8.2022 whereby the learned Single Judge has disposed of W.P.(S) No.6540 of 2010 filed by Respondent No.1 – Ku. Veena Pal holding it to be maintainable against the Appellant Society, which is a private unaided educational institution, and further directing the Appellant Society to pay all the monetary benefits in respect of revised pay scale and other dues payable to Respondent No.1. 2. The short question that arises for our consideration in this Writ Appeal is as under:- “Whether the learned Single was justified in holding that the Writ Petition filed by Respondent No.1 – Ku. Veena Pal is maintainable against the Appellant Society which is a private unaided educational institution, relating to service dispute?” 3. The above-stated question of law arises out of the following factual backdrop of the case:- That the Appellant Society is an educational institution and is running a Higher Secondary School in the name of ‘Sri Sankara Education Society’ situated at Sector 10, Bhilai, District Durg, Chhattisgarh and it is affiliated by the Central Board of Secondary Education. Respondent No.1 – Ku. Veena Pal was working on the post of Assistant Teacher in the Appellant Society. On 22.2.2008, the Respondent No.1 – Ku. Veena Pal filed a Civil Suit seeking damage to the extent of One Lakh rupees against the Appellant Society. Meanwhile, during the pendency of the said Civil Suit, the Appellant Society revised the pay scale as per the recommendations of the Sixth Pay Commission and granted the revised pay scale to all its employees but declined the said benefit to Respondent No.1, which led to her filing of W.P.S. No.6540 of 2010 titled as “Ku. Veena Pal Vs. Sri Sankara Education Society and Others” in which the Appellant Society raised a plea of non- maintainability of the said writ petition but the learned Single Judge by impugned Order dated 8.8.2022 turned down the said plea of non-maintainability in light of the decision of the Supreme Court rendered in the matter of Marwari Balika Vidyalaya v. Asha Shrivastava, (2020) 14 SCC 449 and ultimately directed the Appellant Society to pay the benefits of the Sixth Pay Commission and annual increment payable to Respondent No.1 – Ku. Veena Pal, leading to filing of the present Writ Appeal under Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 by the Appellant Society. 4. Mr. Shalvik Tiwari, learned Counsel for the Appellant Society, would submit that the Writ of Mandamus sought for by Respondent No.1 against the present Appellant which is a private unaided educational institution seeking benefits of the revised pay scale would not be maintainable as there is no statutory provision, rule or government order directing the private unaided educational institution to implement the recommendations of the Sixth Pay Commission. Furthermore, in light of the finding recorded by their Lordships of the Supreme Court in clause (c) of paragraph 69 in the matter of St. Mary’s Education Society and Another v. Rajendra Prasad Bhargava and Others, (2022) SCC OnLine SC 1091 the Respondent No.1 has no right to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India in respect of matter relating to service as the Appellant Society is not governed or controlled by the statutory provisions. The impugned Order as such is liable to be set-aside and the Writ Appeal deserves to be allowed. 5. Mr. Jitendra Gupta, learned Counsel appearing for Respondent No.1 – Ku. Veena Pal, would support the impugned Order and submit that the Appellant- Society’s objections have rightly been overruled by the learned Single Judge in light of the decision of the Supreme Court in Marwari Balika Vidyalaya (supra) and the impugned Order therefore does not deserve any interference but affirmation. 6. We have heard learned Counsel appearing for the parties, considered their rival submissions made herein-above and also gone through the record of the case with utmost circumspection. 7. The Supreme Court in the matter of Sushmita Basu and Others v. Ballygunge Siksha Samity and Others, (2006) 7 SCC 680 wherein the issue of implementation of the recommendations of the Third Pay Commission by the private unaided educational institutions was involved and the writ petitioners therein sought for Writ of Mandamus to implement the recommendations of the Third Pay Commission including their implementation with retrospective effect, which their Lordships of the Supreme Court declined in absence of statutory provision and observed in paragraph-4 as under:- “4. In this context, we must also notice that the Writ Petition in the High Court is filed for the issue of a writ of mandamus directing a private educational institution to implement the recommendations of the Third Pay Commission including their implementation with retrospective effect. Even the decision relied on by learned counsel for the appellants, namely, K. Krishnamacharyulu & Ors. Vs. Shri Venkateswara Hindu College of Engineering and Anr. [ (1997) 2 S.C.R. 368 ] shows that interference under Article 226 of the Constitution of India to issue a writ of mandamus by the court against a private educational institution like the first respondent herein, would be justified only if a public law element is involved and if it is only a private law remedy no Writ Petition would lie. We think that even going by the ratio of that decision, a writ of mandamus could not have been issued to the first respondent in this case.” 8. The matter of Marwari Balika Vidyalaya (supra), relates to removal of teachers from service which was subject to approval from the State Government and the approval of the State Government was required both for appointment as well as for removal of the teachers. The principle of law laid down in Marwari Balika Vidyalaya (supra) was considered by their Lordships of the Supreme Court in the matter of St. Mary’s Education Society (supra) where in paragraphs 57 to 60 it was distinguished by recording the finding as well, which is being reproduced herein below:- “57. In Marwari Balika Vidhyalaya (supra), this Court followed Ramesh Ahluwalia (supra) referred to above. 58. We may say without any hesitation that the respondent No. 1 herein cannot press into service the dictum as laid down by this Court in the case of Marwari Balika Vidhyalaya (supra) as the said case is distinguishable. The most important distinguishing feature of the case of Marwari Balika Vidhyalaya (supra) is that in the said case the removal of the teacher from service was subject to the approval of the State Government. The State Government took a specific stance before this Court that its approval was required both for the appointment as well as removal of the teacher. In the case on hand, indisputably the government or any other agency of the government has no role to play in the termination of the respondent No. 1 herein. 59. The State Government took a specific stance before this Court that its approval was required both for the appointment as well as removal of the teacher. In the case on hand, indisputably the government or any other agency of the government has no role to play in the termination of the respondent No. 1 herein. 59. In context with Marwari Balika Vidhyalaya (supra), we remind ourselves of the Byelaw 49(2) which provides that no order with regard to the imposition of major penalty shall be made by the disciplinary authority except after the receipt of the approval of the disciplinary committee. Thus unlike Marwari Balika Vidhyalaya (supra) where approval was required of the State Government, in the case on hand the approval is to be obtained from the disciplinary committee of the institution. This distinguishing feature seems to have been overlooked by the High Court while passing the impugned order. 60. In Marwari Balika Vidhyalaya (supra), the school was receiving grant-in-aid to the extent of dearness allowance. The appointment and the removal, as noted above, is required to be approved by the District Inspector of School (Primary Education) and, if any action is taken dehors such mandatory provisions, the same would not come within the realm of private element.” Thereafter, their Lordships have laid down the following principles in paragraph 69:- “69. We may sum up our final conclusions as under:- (a) 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. (b) 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. (b) 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 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. (c) 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 have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a "public function" or "public duty" be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service. (d) Even if it be perceived that imparting education by private unaided the school is a public duty within the expanded expression of the term, an employee of a non-teaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether “A” or “B” is employed by school to discharge that duty. It is immaterial whether “A” or “B” is employed by school to discharge that duty. In any case, the terms of employment of contract between a school and nonteaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education. This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of nonteaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered by the court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty. (e) From the pleadings in the original writ petition, it is apparent that no element of any public law is agitated or otherwise made out. In other words, the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character.” 9. Following the principles of law laid down in St. Mary’s Education Society (supra), it is quite vivid 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 have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. Nothing has been brought on record in the instant case that the service condition of Respondent No.1 – Ku. Veena Pal was being governed or controlled by the statutory provisions. The dispute between the Appellant- Society and the Respondent No.1 – Ku. Veena Pal remained in the realm of an ordinary contract of service. In that view of the matter, such writ petition relating to service matter would not be maintainable, as also held by the Supreme Court in the matter of Sushmita Basu (supra). We are, thus, unable to subscribe to the view taken by learned Single Judge while passing the impugned Order holding the Writ Petition to be maintainable, as the Writ Petition filed by Respondent No.1 – Ku. We are, thus, unable to subscribe to the view taken by learned Single Judge while passing the impugned Order holding the Writ Petition to be maintainable, as the Writ Petition filed by Respondent No.1 – Ku. Veena Pal seeking Writ of Mandamus commanding the Appellant-Society to pay the benefits flowing from the recommendations of the Sixth Pay Commission would not be maintainable as the Appellant Society is not governed or controlled by the statutory provisions. Accordingly, the impugned Order dated 8.8.2022 passed by learned Single Judge is set-aside and W.P. (S) No.6540/2010 stands dismissed. However, the Respondent No.1 is not precluded from availing the other remedies available to her under the law to recover the said amount. 10. This Writ Appeal resultantly is allowed with no order as to costs.