Calcutta High Court (Appellete Side)
Avyya Todi & Anr vs The State Of West Bengal & Ors on 22 April, 2026
22/04 In the High Court at Calcutta
2026
Constitutional Writ Jurisdiction
AD/07/24
266312
Appellate Side
NANDY
(OP) WPA/2929/2026
AVYYA TODI & ANR.
VS.
THE STATE OF WEST BENGAL & ORS.
Mr. Jishnu Saha, Sr. Advocate
Mr. Anuj Singh, Advocate
Mr. Arka Prava Sen, Advocate
Mr. Ishaan Saha, Advocate
Mr. Sayantan Kar, Advocate
Ms. Deboshree Mukherjee, Advocate
Ms. Trinisha De, Advocate
Mr. Shivam Chaturvedi, Advocate
......for the Petitioners
Mr. Arka Kumar Nag, Advocate
Mr. Manish Biswas, Advocate
......for the State
Mr. S.N. Mookherjee, Sr. Advocate
Mr. Soumya Majumdar, Sr. Advocate
Mr. Soumya Roychowdhury, Advocate
Mr. Subhrojyoti Mookherjee, Advocate
Mr. Biswajit Kumar, Advocate
Mr. Raja Baliyal, Advocate
Mr. Rajarsjhi Ganguly, Advocate
Mr. Aayush Lakhotia, Advocate
Mr. Vidhya Bhusan Upadhyay, Advocate
......for the Respondent Nos. 4 to 6
1. This matter was taken up on an urgent basis, upon
mentioning by the petitioners. The urgency has arisen
according to the petitioners on the ground that the
examination from which the petitioner no. 1 has been
debarred, which was previously slated for sometime
in mid May 2026, has now been pre-poned to
commence on April 23, 2026.
2. The bare minimum facts at the present stage, which
require consideration are that the first petitioner, a
boy of 16 years, pursuing International Baccalaureate
Diploma Programme (hereinafter as IBDP) curriculum
was suspended on January 23, 2026 on account of an
incident which occurred on January 22, 2026. This
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incident related to the petitioner no. 1 along with
several others indulging in an act of violence by
physically bullying a younger student of the same
school and indeed mercilessly beating up the younger
student causing him extreme mental trauma. Needless
to say such allegations have been denied by the
petitioners.
3. It is this action which prompted the authorities to
suspend the boy from the school and initiate
disciplinary proceedings against him. The order of
February 6, 2026 by a co-ordinate bench was carried
in appeal by the petitioners herein in which the
Hon’ble Division Bench passed a detailed order on
February 13, 2026 setting forth certain directions
which would guide the parties hereto, for the future
course of action. It was inter-alia held, that the school
shall grant an opportunity of hearing to the student
and his parents before taking any final decision. This
final decision was directed to be placed before the
learned Single Judge and for the writ petition to be
heard out. The matter was taken up on March
30th,2026. None of the parties made any submission
nor apprised this court about any decision having
been taken by the school to expel the petitioner no1.
The matter was fixed on 13th April 2026 in view of the
urgency pleaded and particularly since it involved the
career of a young student. However, in view of the
resolution adopted by members of the Bar, the matter
could not be taken up on that day.
4. It was only in the course of hearing today, I was
informed that the school has taken a final decision on
March 30, 2026, expelling the petitioner no. 1 from the
school. However, the said decision is not on record.
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Though such decision is beyond the scope of this writ
petition, evidently, since the writ petition was filed
prior to taking such decision, the same may be
considered in view of the directions of The Division
Bench.
5. It is in this short conspectus that the petitioner seeks
an interim order to enable the petitioner to sit for the
examination for the final assessment from class 11 to
class 12, which is to commence on April 23, 2026.
6. As held in earlier orders, the issue of maintainability
was to be decided prior to hearing the main petition as
that would entail the grant of interim orders, if any.
7. Hence, before going into the question of any ad
interim order, the question of maintainability of the
writ petition has to be decided.
8. Mr. S. N. Mookherjee, learned senior advocate
appearing for the respondent school has raised four
issues challenging the maintainability of the writ
petition. The points may be summarized as under:
a. The respondent school is a private unaided institution, which
is not amenable to the writ jurisdiction of this Hon’ble Court.
b. The admission of students and the administration of the
school is squarely within the exclusive domain of the
respondent school and cannot be questioned in a writ court
and at best may find a place in a civil proceeding.
c. The writ petition is also not maintainable as the petitioner
no. 1 is 16 years of age and hence a writ cannot be issued in
his favour as he does not have a right to education, which
limits such rights to students within the age group of 6 to 14
years.
d. Article 21A of the Constitution of India also specifies that the
State shall provide free and compulsory education to
children of the age 6 to 14 years. The petitioner no. 1 being 16
years of age does not come within the purview of Article 21A.
e. He has relied on two decisions, Purushottam Lal Singhania v.
Delhi Public School & Ors. reported in 2006 SCC OnLine Cal
Page |4339 and T.M.A. Pai Foundation & Ors. v. State of Karnataka &
Ors. (2002) 8 SCC 481. Both decisions and particularly the
one of this Hon’ble Court are of the firm view that an
infringement of fundamental right against a private body
cannot be entertained as a matter of fact, of course by
alleging infringement of fundamental right. The much
celebrated decision of Supreme Court of India in T.M.A. Pai
Foundation (supra) also states that in the case of unaided
private school maximum autonomy has to be with the
management with regard to administration including the
right of appointment, disciplinary powers, admission of
students and fees to be charged.
9. Mr. Jishnu Saha, learned senior advocate appearing for
the petitioners has made the following submissions:
i. The writ petition against a private individual or body is
maintainable in the event such private body is discharging
public function, such as education.
ii. He has relied upon the decisions of the Hon’ble Supreme
Court in Miss Mohini Jain v. State of Karnataka, (1992) 3 SCC
666, St. Mary’s Education Society & Another v. Rajendra
Prasad Bhargava &Others,(2023) 4 SCC 498, the Hon’ble
High Court of Himachal Pradesh in Rakesh Kumar & Ors. v.
State of Himachal Pradesh & Ors., 2026 SCC OnLine HP 883;
and the Hon’ble High Court of Calcutta in Bineeta Patnaik
Padhi v. Union of India and Others, 2021 SCC OnLine Cal
1662.
iii. The decisions are clear and unequivocal that right to
education was espoused in the Constitution of India to
enshrine the rights of citizens as a constitutional mandate to
provide education at all levels for the benefit of all citizens.
Thus, such a right cannot merely be wished away on the
basis that a writ petition is not maintainable against a private
body/authority even while discharging a public function.
iv. He also drew attention of this court to the words in Article
226 of the Constitution “to any person or authority” to argue
that the makers of the Constitution did not merely postulate
issuance of a writ to the state or its bodies, but also to private
individuals or private authority, while they were discharging
a public duty.
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10. I have heard learned counsel appearing for the parties
and the decisions relied upon by them including the
documents disclosed by them.
11. Since, at this stage the expulsion order of the
petitioner no. 1 from the respondent no. 4 school is not
before this Court, it would be inappropriate at this ad
interim stage to go into the correctness, legality or
procedural propriety of the action taken by the school
in expelling the student.
12. However, this much is admitted that there was an
incident which resulted in shock and trauma for a
younger student of the same school. The decision as to
whether the petitioner no. 1 was one of the
perpetrators of such an action will have to wait till such
order of expulsion is placed before this Court and the
matter is finally heard.
13. Adverting to the only issue that the parties are
concerned with at present, the decisions were varied
as to whether a court exercising jurisdiction under
Article 226 of the Constitution of India is empowered
to issue a writ against a private body or not. However,
this issue is no longer res integra. The construction of
Article 226 has to be for a purpose which serves the
benefit of maximum number of people without in any
manner diluting the duties cast upon a body or an
authority, especially when such body or authority is
discharging a public duty.
14. Admittedly, the respondent no. 4 is engaged in the act
of imparting education to young citizens of this country
who would at some stage be the future of the country.
Any school which is a private unaided institution
cannot be brought within the realm of state logistics
nor can its autonomy, which is of primary importance,
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be curtailed in a manner which would destroy its
autonomy. At the same time such a body imparting
education, which has over a period of time been
construed as a public duty, should not be allowed to
function in an arbitrary or whimsical manner.
15. Any school while imparting education is undoubtedly
embarking on the domain of a duty cast upon it
involving public element and necessarily public
wellbeing. Schools imparting education can be
construed as engaged in an activity imparting
education as a collective benefit for a body of citizens,
termed as students. There is thus no impediment in
holding that this act of schools (that is imparting
education) falls within the domain of public duty
having a direct nexus with the job undertaken by it. If,
in the exercise of such duty, the school acts arbitrarily
or whimsically, a public law action will vest in the
aggrieved person, who may at that stage seek
invocation of a prerogative action under Article 226 of
the Constitution of India. In St. Mary’s Technological
Education Society (supra) it has been clearly held by
the Hon’ble Supreme Court of India that if an action is
assailed against a private institution which relates to
the public duty that is imparting education, the same
would be amenable to the writ jurisdiction. At the
same time as held therein a private dispute by an
employee against a private unaided school may not
fall within the domain of discharging a public duty by
this school. The said action would necessarily be
covered by a private action between the employee
and the private institution as the employer. In this
particular case, it is not a case of employer and
employee. It is the grievance of a student, a
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beneficiary of the public duty being discharged by the
school that is imparting education, which has been
assailed in the writ petition.
16. The decision relied upon by the respondent
particularly in the case of T.M.A. Pai Foundation &
Ors. (supra) relates to certain minority institutions
asserting their rights to establish and administer
educational institution of their choice unhampered by
rules and regulations that impinge upon their
autonomy. In the present case, it is not a question of
the autonomy of the school but the nature and
character of an act of commission and/or omission
taken by the school in suspending and now as it
seems expelling a student on the ground of
misbehavior or physical assault on another student.
17. The nature of the act as afore stated, by the school
has a commencement, a substantive part and a
consequence. The Act Commences from the Order of
suspension of the alleged errant student which is
attributable to an incident to which the student was
allegedly a perpetrator. The substantive part of the
act is to suspend the student from attending classes
and ultimately expelling him from the institution. The
consequence is the denial of the petitioner’s right to
continue with his education in the institution. All
three parts form a fraction of the whole. The whole
being the students’ right to receive education as well
as the duty of the school to impart education.
Whether the act has been done in a rightful manner
and is at all correct or not in so far as the procedural
propriety is concerned is to be visited at the time of
hearing of the petition. What is germane now is that
the entire act of suspending and expelling the
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student thereby denying him the right to obtain
education can be construed as an act which falls
within the domain of a public duty. Since the act is
entirely between a student and the institution and not
in any private domain, but clearly in the realm of
discharging a public duty by the School, I have no
hesitation in holding that the instant act relates to
such public duty of the School and falls within the
public domain. The act of expulsion or even
suspension of the student has the effect of the
institution refusing to impart education to the
petitioner and clearly has a direct nexus, as laid
down in St. Mary’s Education Society (Supra), to the
duty of the school to impart education which falls
within the realm of public duty.
18. In so far as the connected issue is concerned as to
whether right to education is a fundamental right or
not, it is true that by way of Article 21-A the right to
education has been limited to students between the
age group of six to fourteen and the Petitioner being
a student of sixteen years of age doesn’t fall within
the parameters of this Article. However, it is equally
true that while deciding the issue of right to life
under Article 19 of the Constitution of India, the
Hon’ble Apex Court has held in Unni Krishnan
(Supra) that right to education is well within the
benchmark parameters of right to life. Hence, any
student who is denied a right to education can invoke
the prerogative powers of the High Court under
Article 226 of the Constitution of India.
19. Had this action been against the very same school by
an employee, I suspect if the writ petition could have
been maintainable. In that case as reiterated by the
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Supreme Court of India in St. Mary’s Education
Society (supra) the tenor of the dispute would have
nothing to do with the public duty being discharged
by the school, it would have been a private dispute
between the school as an employer and the
aggrieved person as an employee. However in the
present circumstance, that is not the case. The school
is discharging a public duty and has taken the
decision to show cause and now suspend the
petitioner no. 1 while discharging such a public duty.
Thus, the denial of the petitioner’s right to participate
in the proceedings in the school of attending classes
and taking the exam or the assessment is completely
within the realm of public duty cast upon the school.
There is clearly an element of public duty, infraction
whereof is under challenge in this writ petition.
20. In Unni Krishnan v. State of Andhra Pradesh (Supra),
read with Mohini Jain v. State of Karnataka(Supra),
the Supreme Court authoritatively declared that the
right to education, though not expressly catalogued
in Part III of the Constitution, is intrinsic to and flows
from the right to life guaranteed under Article 21 of
the Constitution of India. The Court recognized that
the expression “life” under Article 21 does not
signify mere animal existence but also incorporates
the right to live with human dignity, intellectual
freedom, and the full development of one’s
personality. Education was held to be the very
foundation upon which the dignity of the individual
rests, for without education the freedom guaranteed
by the Constitution would remain illusory and
incapable of meaningful exercise. These
pronouncements thus elevate education from a mere
P a g e | 10
constitutional aspiration to an enforceable
component of the right to life, without which the
promise of social justice and constitutional
democracy would remain incomplete.
21. In view of the aforesaid discussions, I have no
hesitation in holding that the writ petition is
maintainable. Having held the writ petition to be
maintainable, it is now incumbent to assess whether
an ad interim order of injunction on the assessment
or examination which is to commence from April 23,
2026 in the respondent no. 4 can be stayed or be
kept in abeyance. It is in these circumstances that the
question of balancing the equity assumes a rather
pivotal role. The petitioner no. 1 is not the only
student who is taking such an
examination/assessment but is one amongst many. It
is true that the petitioner seeks to challenge the
expulsion which has been meted out to him by the
school on the alleged ground of misbehavior, assault
and causing trauma to another student. It is equally
true that this order of expulsion is not before this
Court as it was passed after the writ petition was filed
before this Hon’ble Court.
22. Any sort of restraint against the examination to be
conducted by the respondent no. 4 would prejudice
the entire batch of students and for no fault of theirs a
large number of students would stand to lose a year
of their academic career. This would not only be
prejudicial but would be a complete dilution if not an
infraction of the rights of such students.
23. On the other hand, to permit the petitioner no. 1 to sit
for the exam would cause a similar dilution of the
school’s autonomy to initiate an action against any
P a g e | 11
errant student, if the situation so arose. Thus, any
interim order at this stage directing the school to
permit the petitioner no. 1 to sit for the examination
would result in or at least would have to result in
keeping the order of expulsion in abeyance till such
time that the writ petition was finally disposed of. The
expulsion order is not before this court. Hence, to
take any decision in respect of the order of expulsion
in its absence would tantamount to passing an order
of a prima facie satisfaction without even perusing
such order of expulsion. This would lead to judicial
impropriety.
24. In the circumstances afore-stated, the balance of
equities is of a clear 2:1 ratio. The two being: – a. The
autonomy of the school in dealing with its own affairs;
b. The well being and the rights of a large number of
students who are also going to sit for the
examination.
25. The one on the other hand being the rights of this
particular student, the petitioner no. 1 herein.
However, the right of this young person also requires
some protection.
26. Since this is an internal examination to be conducted
by the school itself, I direct the petitioner’s right to sit
for this examination as a student of the respondent
no. 4 would be subject to the outcome of the writ
petition. Thus, in other words, in the event the writ
petitioners are successful in their pursuit, the
petitioner no.1 will be permitted to sit for this
examination at a later date, which the school will
arrange to ensure that the petitioner no. 1 does not
lose an academic year to his career.
27. Since Mr. Saha prays for leave to file a
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supplementary affidavit to bring on record the order
of expulsion along with certain other documents.
Such leave is granted. The petitioners will file the
supplementary affidavit by April 30, 2026.
28. Let affidavits in opposition be filed by May 20, 2026
reply thereto, if any, by June 20, 2026.
29. List this matter in the monthly combined list of July
2026.
(Reetobroto Kumar Mitra, J.)
