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Judgment
By way of the present writ petition, the petitioners have challenged the action of the respondent No.5 "Lords Education And Health Society" - a private contractor, which restricted petitioners' contractual engagement upto 31.08.2020, though its agreement (dated 20.05.2016) executed with the Chief Medical & Health Officer Churu, still subsists and would continue till 20.05.2021.
Mr. Mahaveer Bishnoi, learned counsel for the petitioners, narrating the requisite facts, informed that petitioners' services were availed by respondent No.5 on contract basis and an agreement dated 01.06.2016, came to be executed between them.
Learned counsel further apprised that the petitioners' aforesaid contract with the respondent No.5, was initially for a period of three years and the same was extended for further period of one year upto 30.06.2020, whereafter, it has been extended only for a period of two months i.e. upto 31.08.2020.
It was highlighted that the respondent No.5 had entered into the agreement with the petitioners in furtherance of memorandum of understanding dated 20.05.2016, which was executed between the CMHO, Churu and respondent No.5.
While pointing out that the said agreement dated 20.05.2016 was for a period of five years, Mr. Bishnoi argued that the extension of petitioners' engagement only upto 31.08.2020 - before expiry of the contract awarded to respondent No.5, is illegal and arbitrary.
Raising a grievance that the respondent No.5 has arbitrarily dispensed with petitioners' contractual engagement w.e.f. 31.08.2020, by way of communication dated 01.07.2020, learned counsel argued that the respondent No.5 was not justified in confining extension of petitioners' contract upto 31.08.2020, much before its agreement with the State Government - CMHO, Churu would expire.
In response to Court's query, as to how a writ can be issued to respondent No.5, which is a private entity, it was argued by Mr. Bishnoi that Article 226 of the Constitution knows no bar and expression "to any person or authority" of Article 226 of the Constitution of India, gives a large expanse to the power of the High Court. He submitted that a writ can well be issued even to a private party including respondent No.5.
Learned counsel contended that since respondent No.5 is discharging medical and health services on behalf of the State Government and receives payment from out of public exchequer, it is discharging public services and hence, it is akin to State or its instrumentality.
In support of his argument that writ petition is maintainable against respondent No.5, as it is discharging public function, learned counsel relied upon a host of judgments. The judgments relied upon by him are being dealt with one after another as under:-
(a) Shri Anandi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust & Ors. Vs. V.R. Rudani & Ors. : AIR 1989 SC 1607 : Dealing with situation that a college, a private body, did not confer the benefit of revised pay scale notwithstanding the fact that the University, to which it was affiliated, had taken a decision to grant revised pay scale to all Teachers of affiliated colleges, it was found that the decision of the University was binding on the affiliated colleges. Hon'ble the Supreme Court in such circumstances held that a mandamus can be issued to the college.
(b) Som Prakash Rekhi Vs. Union of India & Anr. : AIR 1981 SC 212 : In this case, the action of Bharat Petroleum Corporation Ltd. (erstwhile Burmah Shell) was under challenge. The respondent-Corporation being a Government of India undertaking, was held to be amenable to writ jurisdiction.
(c) Ajay Hasia etc. Vs. Khalid Mujib Sehrawardi & Ors. : AIR 1981 SC 487 : The respondent in the said case was Regional Engineering College, one of the 15 Engineering Colleges in the country, sponsored by the Government of India. Having examined the status of the college and considering that the Central Government had full control of the affairs of the society, Hon'ble the Supreme Court held that the college falls within the four corners of the State/authority within the meaning of Article 12 of the Constitution of India.
(d) Sukhdev Singh & Ors. Vs. Bhagatram Sardar Singh Raghuvanshi & Anr. : AIR 1975 SC 1331 : The respondent against which a mandamus was sought, in this case was, "Oil & Natural Gas Ltd.", established under Oil & Natural Gas Commission Act, 1959. Having found that the Oil & Natural Gas Ltd. is owned by the Government and is having exclusive privilege of extracting petroleum, the Apex Court held that it falls within the meaning of State under Article 12 of the Constitution of India. In the said case, Hon'ble the Supreme Court also examined the status of Industrial Finance Corporation and Life Insurance Corporation, which too were established under separate enactments of the Central Government.
(e) Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology & Ors. : 2002(5) SCC 111 : The question, which came up for consideration before Hon'ble the Supreme Court, in this case was, whether the Council of Scientific and Industrial Research (CSIR) was State, within the meaning of Article 12 of the Constitution of India. Having scrutinised the status of said Council, which was established pursuant to a resolution adopted (6 of 8) [CW-6936/2020] by the Legislative Assembly and accepted by the Government of India; and the fact that management and control of the said Council was with the Central Government and it was receiving financial aid, Hon'ble the Supreme Court held said Council to be State within the meaning of Article 12 of the Constitution of India.
The precedents cited by learned counsel for the petitioners, are clearly distinguishable on facts. Considering and analyzing the facts and status of those institutions, the Supreme Court came to the conclusion that the respondents therein were either established by an Act of State/Central Government or the State was having financial and administrative control over such institutions or they were getting financial aid. It was only on the basis of such conclusion it was held that a mandamus/writ can be issued to those Institutions.
In juxtaposition with the facts involved in the aforesaid cases, if the facts of the present case are examined, more particularly the contract executed between the petitioners and the respondent No.5, it clearly comes to fore that the petitioners have entered into a contract with respondent No.5, which is purely a private entity. The State has no control over its internal affairs.
This being the position, in considered opinion of this Court; firstly, the respondent No.5 cannot be held to be a statutory authority or State by any stretch or extension of the provisions of Article 12 of the Constitution of India, respondent No.5 cannot be said to be a State or its instrumentality. Secondly, the dispute being purely of contractual nature, the remedy available to the petitioner is that of filing a suit for injunction or a suit for damages. The remedy under Article 226 of the Constitution of India, in the facts of the present case, particularly when hordes of disputed questions are required to be examined, cannot be availed by the petitioners.
Undoubtedly Article 226 of the Constitution empowers the High Court to issue a writ to a private person. But Article 226 cannot be read in isolation. We have to read Article 12 and 14 of the Constitution before the relief claimed by the petitioners is granted.
Petitioners' grievance, in essence, is against respondent No.5. Conduct of respondent No.5, even if presumed or held to be arbitrary, is immune from judicial scanner of this Court, as by any stretch of imagination it cannot be treated to be a State or its instrumentality.
Merely, because Article 226 of the Constitution empowers this Court to issue a writ to a private entity, it, by ipso-facto does not mean that the High Court can examine action of private individuals on the anvil of fairness or touchstone of Article 14 of the Constitution.
Merely, because of respondent No.5 getting amount from the State Government, does not make it an instrumentality of the State. As the amount it receives is a consequence of a purely commercial transaction. The same is neither any aid nor is their any pervasive control of the State.
This being the position, this Court is not persuaded to examine the conduct of respondent No.5, in its extra ordinary jurisdiction under Article 226 of the Constitution.
In the present case, respondent No.5 is nothing less than a private contractor and the dispute sought to be agitated by way of (8 of 8) [CW-6936/2020] present petition is a contractual dispute, for which a petition under Article 226 is not the remedy.
As an upshot of the discussion foregoing, petition for writ fails.
Stay application also fails.