934-WP-2906-2021.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH : NAGPUR. WRIT PETITION NO. 2906 of 2021 Deepali d/o Ramesh Gawande vs. Union of India, through Ministry of Human Resource Development Department of Higher Education and School Education,and others ------------------------------------------------------------------------------------------------------- Mr. C. B. Dharmadhikari, Advocate for petitioner. Mr. S.A.Chaudhari, Advocate for respondent no.1. Mr. M.G.Bhangde, Senior Advocate i/b Mr. Adarsh Baheti, Advocate for respondent nos. 3 to 7. ------------------------------------------------------------------------------------------------------- CORAM :- ANIL S. KILOR and RAJNISH R. VYAS, JJ. DATE :- 25thAUGUST, 2026. P. C. Heard the learned counsel for the respective parties. 2. The petitioner, who was appointed as a Primary Teacher vide order dated 07.07.2001 and got confirmation on 10.11.2003, came to be dismissed vide order dated 05.10.2019. Such dismissal is under challenge in this writ petition. 3. Shri M. G. Bhangde, learned Senior Advocate appearing for the respondent nos. 3 to 7, at the outset, raises a preliminary objection to the effect that since the appointment order makes it amply clear that the appointment of the petitioner was subject to Bhartiya Vidya Bhawan’s School Rules and Regulations, as framed and amended, and made applicable to the staff from time to time, it is a private contract and it has no statutory flavour. 4 It is submitted by the learned Senior Advocate that since the appointment of the petitioner does not govern by any statute, the petitioner cannot enforce the private contract by filing a writ petition under Article 226 of the Constitution of India. In support of his submissions, he has 2026:BHC-NAG:11266-DB 934-WP-2906-2021.odt 2 placed reliance on the judgments of the Hon’ble Supreme Court of India in the case of State Bank of India and others vs. S. N. Goyal reported in [ (2008) 8 SCC 92] and in the case of St.Mary’s Education Society and another vs. Rajendra Prasad Bhargava and others reported in [(2023) 8 SCC 498]. 5. On the other hand, Shri C. B. Dharmadhikari, learned counsel for the petitioner, while pointing out that the petition is maintainable, has placed reliance on the judgment of the Hon’ble Supreme Court of India in the case of Ramesh Ahluwalia vs. State of Punjab reported in [(2012) 12 SCC 331]. He submits that since imparting education is a public duty, the petitioner can ask for enforcement of rights against such an unaided institution. 6. Having heard the rival contentions and having gone through the judgments cited supra by both the parties, there is no dispute that the respondent-School is performing a public duty by imparting education to the students and therefore, writ petition under Article 226 of the Constitution of India is maintainable. However, a question is, whether in the light of the fact that the services of the petitioner do not govern by any statute and the Rules under which the petitioner was appointed not having a statutory flavour, the petitioner can seek enforcement of private contract ?. 7. In the case of S. M. Goel (supra), the Hon’ble Supreme Court of India has held in para 17 as under: 17. Where the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable, having regard to the bar contained in Section 14 of the Specific Relief Act, 1963. Even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement. The three well-recognised exceptions to this rule are: 934-WP-2906-2021.odt 3 (i) where a civil servant is removed from service in contravention of the provisions of Article 311 of the Constitution of India (or any law made under Article 309); (ii) where a workman having the protection of the Industrial Disputes Act, 1947 is wrongly terminated from service; and (iii) where an employee of a statutory body is terminated from service in breach or violation of any mandatory provision of a statute or statutory rules. There is thus a clear distinction between public employment governed by statutory rules and private employment governed purely by contract. The test for deciding the nature of relief damages or reinstatement with consequential reliefs is whether the employment is governed purely by contract or by a statute or statutory rules. Even where the employer is a statutory body, where the relationship is purely governed by contract with no element of statutory governance, the contract of personal service will not be specifically enforceable. Conversely, where the employer is a non-statutory body, but the employment is governed by a statute or statutory rules, a declaration that the termination is null and void and that the employee should be reinstated can be granted by courts”. 8. Similarly, it is beneficial to refer to the judgment of the Hon’ble Supreme Court of India in the case of St. Mary’s (supra) paragraphs 32 and 36 read thus: “32. The contention canvassed by Respondent 1 is that a writ petition is maintainable against the Committee of Management controlling the affairs of Institution (minority) run by it, if it violates any rules and Bye-laws laid down by CBSE. First, as discussed above, CBSE itself is not a statutory body nor the regulations framed by it have any statutory force. Secondly, that the Board grants recognition to the institutions on certain terms and conditions itself does not confer any enforceable right on any person as against the Committee of Management”. “36. It needs no elaboration to state that a school affiliated to CBSE which is unaided is not a State within Article 12 of the Constitution of India [see Satimbla Sharma v. St Paul's Senior Secondary School]. Nevertheless the school discharges a public duty of imparting education which is a fundamental right of the citizen [see K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg.]. The school affiliated to CBSE is therefore an "authority" amenable to the jurisdiction under Article 226 of the Constitution of India [see Binny Ltd. v. V. Sadasivan]. However, a judicial review of the action challenged by a party can be had by resort to the writ jurisdiction only 934-WP-2906-2021.odt 4 if there is a public law element and not to enforce a contract of personal service. A contract of personal service includes all matters relating to the service of the employee confirmation, suspension, transfer, termination, etc. [see Apollo Tyres Ltd. v. C.P. Sebastian]” 9. From above referred observations made by the Hon’ble Supreme Court of India in the judgments cited supra, it is evident that though the school imparting education is performing public duty, a writ under Article 226 of the Constitution of India is maintainable. However a private contract is not enforceable under Article 226 of the Constitution of India against the respondent-School. 10. The judgment cited by the learned counsel for the petitioner in case of Ramesh Ahluwalia (supra) speaks only about maintainability of the writ petition where a school is performing public duty. However, the said judgment does not deal with right of such employee who is working in a private school to seek enforcement of private contract. As such, the aforesaid judgment is of no assistance to the petitioner. 11. Considering the law laid down by the Hon’ble Supreme Court of India in the case of S. M. Goel and St.Mary’s (supra), we are of the opinion that since the appointment of the petitioner is by way of private contract, the petitioner cannot ask for enforcement of such contract by filing the present writ petition. 12. Accordingly, the writ petition is dismissed. However, the petitioner is at liberty to take recourse to such remedies, available and permissible in law. No order as to costs. ( RAJNISH R. VYAS, J.) (ANIL S. KILOR, J.) Andurkar. Signed by: Jayant S. Andurkar Designation: PA To Honourable Judge Date: 28/08/2026 20:19:48