Ku Vidhya Mishra vs Governing Body and Others

Satish K. Agnihotri, J.—Heard learned counsel for the petitioner. The petitioner, being an employee of the Pandit Kishorilal Shukla Law College (for short "the respondent College"), has filed this petition seeking to quash the notice dated 9-7-2012 (Annexure - P/4) without impleading the State Government as well as Pandit Ravishankar Shukla University (for short "the University") as party/ respondents. The respondent No. 1 is the Governing Body, respondent No. 2 is the Society registered under the Societies Registration Act, respondent No. 3 is the College affiliated to the University and the respondent No. 4 is the Secretary to Nandgaon Shiksha Mandal.

Shri Kotecha, learned counsel appearing for the petitioner, would submit that since the respondents are performing the job of public duty, hence they are amenable to the writ jurisdiction of this Court and, as such, the question, which arises for consideration is whether a writ petition is maintainable against the private parties on the ground that they are performing the duty of imparting education, which, according to the petitioner, is a public duty.

Shri Kotecha, in support of his contention, placed reliance upon the decision of the Supreme Court in Binny Ltd. and another v. V. Sadasivan and others1. According to the learned counsel for the petitioner, since the respondents are performing the public duty of imparting education, the writ is maintainable.

In Binny Ltd. (supra), the issue was whether the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India could have interfered with the decision of a private limited company, the Supreme Court after having considered several aspects of the matter observed that "in the matter of employment of workers by private bodies on the basis of contracts entered into between them, the Courts had been reluctant to exercise the powers of judicial review and whenever the powers were exercised as against private employers, it was solely done based on public law element involved therein."

In Binny Ltd. (supra), the Supreme Court further observed as under:

Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel the public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsbury''s Laws of England, 3rd Edn., Vol. 30, p. 682, `a public authority is a body, not necessarily a county council, municipal corporation or other local authority which has public statutory duties to perform and which perform the duties and carries out its transactions for the benefit of the public and not for private profit.'' There cannot be any general definition of public authority or public action. The facts of each case decide the point.

Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not a State within the meaning of Article 12 of the Constitution and such body is amenable to the jurisdiction under Article 226 of the Constitution and the High Court under Article 226 of the Constitution can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties.

The Supreme Court in The Praga Tools Corporation v. Shri C.A. Imanual and Others2, while considering issue whether a writ lies against the company incorporated under the Companies Act, observed that "a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. Thus, an application for mandamus will not lie for an order of reinstatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute."

In The Praga Tools Corporation (supra), the Supreme Court further observed as under :

The company being a non-statutory body and one incorporated under the Companies Act there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. The High Court, therefore, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against the company.

The Supreme Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others v. V.R. Rudani and Others3, observed as under :

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 aided institutions like government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character.3 So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.

In VST Industries Ltd. v. VST Industries Workers'' Union and Another4, observed as under :

In Anadi Mukta case this Court examined the various aspects and the distinction between an authority and a person and after analysis of the decisions referred in that regard came to the conclusion that it is only in the circumstances when the authority or the person performs a public function or discharges a public duty that Article 226 of the Constitution can be invoked.

In Federal Bank Ltd. v. Sagar Thomas and Others5, while considering the issue whether the writ is maintainable against the Bank, the Supreme Court has laid down the principle as under :

From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function.

The other case which has been heavily relied upon is Andi Mukta. It is no doubt held that a mandamus can be issued to any person or authority performing public duty, owing positive obligation to the affected party. The writ petition was held to be maintainable since the teacher whose services were terminated by the institution was affiliated to the university and was governed by the ordinances, casting certain obligations which it owed to that petitioner. But it is not the case here. Our attention has been drawn by the learned counsel for the appellant to paras 12, 13 and 21 of the decision (Andi Mukta) to indicate that even according to this case no writ would lie against the private body except where it has some obligation to discharge which is statutory or of public character.

On bare perusal of the pleadings and consideration of the submission, it is found that the petitioner has no where stated asto whether the State Government has any power of regulation over the educational institute and also despite affording opportunity, the State Government has not been impleaded as a party/respondent. It is stated that the respondent College is affiliated by the University, but no document to that effect has been filed. Indisputably, a writ petition under Article 226 of the Constitution of India is maintainable against the institution, if the said institution performs the public duty or statutory duty.

It is well settled that a duty, which has to be performed by the State Government is a public duty and if the public duty is performed by an institution, even if the college or institution. They are regulated by the rules, regulations, etc. for the purpose of service conditions of the employees, teachers and also for the purpose of maintaining merit and excellence in the institution. This is also the requirement of the University to comply with the certain norms before grant of affiliation.

In The Praga Tools Corporation (supra), the Supreme Court observed as under :

6..But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. Thus, an application for mandamus will not lie for an order of reinstatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute.

The Supreme Court in G. Bassi Reddy v. International Crops Research Institute and Another6, observed as under :

A writ under Article 226 can lie against a "person" if it is a statutory body or performs a public function or discharges a public or statutory duty (Praga Tools Corpn. v. C.A. Imanual, Shri Anadi Mukta Sadguru Trust v. V.R. Rudani SCC at p. 698 and VST Industries Ltd. v. Workers'' Union). ICRISAT has not been set up by a statute nor are its activities statutorily controlled. Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity.

The petition lacks the above-stated details in its pleadings. It appears that the appointment of the petitioner is on account of contract between the respondent College and the petitioner. Copy of the appointment order has also not been filed here. Thus, it is not possible to hold that the respondent College was discharging a public duty, though it may be imparting education, but that also some times is a part of private duty, if not regulated or controlled by the affiliating body or by the State Government. Thus, impleading of State Government as well as the University to ensure that public duty, which is alleged to be performed by the respondent College is properly secured by the State and also to establish that the respondent College was performing the public duty or statutory duty or the same was running on State funding or under an obligation to discharge any function as held by the Supreme Court in Federal Bank Ltd. (supra). Thus, for want of material, it cannot be held that since the educational institution is imparting education, therefore, it comes within the meaning of ''public duty''.

In view of the above, the petitioner has failed to establish that the respondent College was performing public duty, the petition under Article 226 of the Constitution of India is not maintainable for the relief sought in the petition.

Applying the well settled principles of law to the facts of the present case and for the reasons mentioned hereinabove, the writ petition is not maintainable. Resultantly, the writ petition is dismissed, as not maintainable.