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TMI Blog2010 (3) TMI 1086X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Society was set up with the blessings of late Shri T.A. Pai, then a Union Minister with eminent people involved in it. Dr. V.A. Pai Panandiker, the appellant in LPA No.313/2002 was a Member Secretary. Dr. Brahma Chellaney, respondent No.1 also came to be associated with this organization, who is also one of the eminent persons of his field. The Centre was granted lease of land by the Government of India at institutional rates to construct its campus building in 1978-79 after it was originally set up in 1972 and the new campus started functioning from March, 1980. Respondent No.1 was appointed as a Research Professor on 23.6.1993 and a fresh letter of appointment was issued on 1.4.2000 increasing the remuneration with retrospective effect. The services of respondent No.1 were, however, terminated on 16.8.2000 giving three (3) months' salary in lieu of such termination. Aggrieved by this action, respondent No.1 filed WP (C) No.5928/2000 in this Court along with an interlocutory application praying for interim stay. The learned single Judge in terms of order dated 15.11.2000 granted stay of termination. In the mean time, Dr. V.A. Pai Panandiker resigned on 2.9.2000 though the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as recorded in the order dated 27.8.2008 read with the order dated 18.11.2008 that he was not pressing that issue or the claim that the Centre is an authority covered within the ambit of Article 12 of the Constitution of India and could not support the observations in the impugned judgement in that behalf. It was, thus, agreed that to that extent the observations in the impugned judgement are unsustainable and are accordingly set aside. 7. However, the question which was sought to be agitated, and over which elaborate arguments have been addressed by learned counsels for the parties is the amenability of the Centre to the writ jurisdiction of this Court under Article 226 of the Constitution of India under the category of "other authority". 8. The surprising part is that this matter has been sought to be agitated despite the factual matrix not existing and in that sense a legal opinion is being invited in a vacuum. This is the direct result of the insistence of the learned counsel for the appellant that this question of law vis-a-vis the Centre needs to be adjudicated in its favour while on the other hand, learned counsel for respondent No.1 canvassed that the observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Article 226 of the Constitution of India even though in the Division Bench of this Court in Air Vice Marshal J.S. Kumar Vs. Governing Council of Air Force Sports Complex & Anr. 126 (2006) DLT 330 (DB) it was observed that merely because the Government had provided some land to the AFSC, it would not make the AFSC a state under Article 12 of the Constitution of India. 12. A reference was also made to Rahul Mehra & Anr. Vs. Union of India 114 (2004) DLT 322 (DB) in the context of the status of the Board of Control for Cricket in India. It was held that while BCCI may be amenable to writ jurisdiction but every action of the BCCI would not be subject to judicial review but only such of the actions which fall within the ambit of public law. A body, public or private, could not be categorized as amenable or not amenable to writ jurisdiction and their function test was the correct one to test maintainability. 13. Learned senior counsel canvassed before us that in the impugned judgement the Centre has not been held as comparable to a regular educational institution to invite the ratio of Unni Krishnan J.P. & Ors. Vs. State of Andhra Pradesh & Ors. (1993) 1 SCC 645, but the factum of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1950 was this. There was no law in India which prohibited any private individual or body from establishing a university and it was therefore open to a private individual or body to establish a university. There is a good deal in common between educational institutions which are not universities and those which are universities. Both teach students and both have teachers for the purpose. But what distinguishes a university from any other educational institution is that a university grants degrees of its own while other educational institutions cannot. It is this granting of degrees by a university which distinguishes it from the ordinary run of educational institutions. (See St. David's College, Lampeter v. Ministry of Education 3). Thus in law in India there was no prohibition against establishment of universities by private individuals or bodies and if any university was so established it must of necessity be granting degrees before it could be called a university. But though such a university might be granting degrees it did not follow that the Government of the country was bound to recognise those degrees. As a matter of fact as the law stood up to the time the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant to a project etc." From The World Bank Dictionary "1. Hunting for facts or truth about a subject; inquiry; investigation: The researches of men of science have done much to lessen disease. SYN: study. 2. Organized scientific investigation to solve problems, test hypothesis, or develop or invent new products; atomic research, cancer research." From Wikipedia, the Free Encyclopedia on Internet "Research is defined as human activity based on intellectual application in the investigation of matter. The primary aim for applied research is discovering, interpreting, and the development of methods and systems for the advancement of human knowledge on a wide variety of scientific matters of our world and the universe. Research can use the scientific method, but need not do so." 18. Insofar as the factual matrix is concerned learned counsel emphasized that the Centre is a registered Society which originally worked from a rented premises till it was made available a lease of land by the Government of India on which the Centre constructed the building. The plea advanced was that the Government had no role in its founding nor say either in the consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viii. The use of recurring Government grant-in-aid for maintenance of permanent faculty while non-recurring grant-in-aid is used for infrastructural support. ix. The Central Government and ICSSR have oversight authority over the Centre in terms of accounts, foreign funding and representation on the Governing Board. x. The receipt of large funds from the Government of India, State Governments and Public Sector Undertakings and Government agencies. xi. Income of the Centre from the work done on behalf of public bodies. xii. The large amount of fund flow is apparent even for the financial year 2006-2007 where ₹ 1.58 crore was received from public sources - recurring Government grant-in-aid ₹ 69.00 lakh; profit from test & examination-Rs.47.00 lakh; rent payment from National Knowledge Commission-Rs.42.00 lakh in respect of part of premises of the Centre. 22. It may be noticed that respondent No.1 has filed documents in support of each of the aforesaid aspects and thus submitted that these are not just stray allegations but substantiated by documentary proofs and if all these factors are taken into account there can be no doubt that the Centre is amenable to writ jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 226 of the Constitution of India states that every High Court has jurisdiction to issue appropriate writs to any person or authority for the enforcement of any fundamental right and for any other purpose. The expressions "any person" and "for any other purpose" have been explained and elucidated upon by the Supreme Court. The words "any person or authority" used in Article 226 are not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing the public function. In Shri Anadi Mukta Sadguru SMVSJM Smarak Trust & Ors v. V.R.Rudani & Ors., AIR 1989 SC 1607 the Court held that the law relating to mandamus has made the most spectacular advance. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to "any person or authority". It can be issued "for the enforcement of any of the fundamental rights and for any other purpose". The term "authority" used in Article 226, in the context, must receive a liberal meaning unl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uot; 21. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute Commenting on the development of this law, Professor De Smith states : "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." (Judicial Review of administrative Act 4th Ed. p.540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice whenever it is found'. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition." 26. Thereafter a reference was made to the pronouncement of the Supreme Court in various matters as discussed aforesaid. 27. In Saroj Devi (Widow) Vs. Union of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution of India by the retrenched teachers of a public aided college (a public trust) affiliated to the University seeking a writ of mandamus for compelling the college management to pay them terminal benefits and arrears of salary due. Such a petition was held to be maintainable. The maintainability of the writ petition was challenged on the ground that the respondent-entity was a registered trust under the Bombay Trust Act and thus not amenable to the writ jurisdiction of the High Court. A distinction was made between enforcing the service contract and claiming terminal benefits and arrears of salary. It would be useful to reproduce the following observations: "15. 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 majo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lexible terms, It gives scope for development. It uses the words "having regard to". Those words are very indefinite. The result is that the courts are not bound hand and foot by the previous law. They are to 'have regard to' it. So the previous law as to who are-and who are not- public authorities, is not absolutely binding. Nor is the previous law as to the matters in respect of which relief may be granted. This means that the judges can develop the public law as they think best. That they have done and are doing. 17. There, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The 'public authority' for them mean every body which is created by statute and whose powers and duties are defined by statute. So Government Departments local authorities, police authorities and statutory undertakings and corporations, are all 'public authorities'. But there is no such limitation for our High Courts to issue the writ 'in the nature of mandamus'. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early times, it was made generally available through the Court of King's Bench, when the Central Government had little administrative machinery of its own. Early decisions show that there was free use of the writ for the enforcement of public duties of all kinds, for instance against inferior tribunals which refused to exercise their jurisdiction or against municipal corporation which did not duly hold elections, meetings, and so forth. In modern times, the mandamus is used to enforce statutory duties of public authorities. The courts always retained the discretion to withhold the remedy where it would not be in the interest of justice to grant it. It is also to be noticed that the statutory duty imposed on the public authorities may not be of discretionary character. A distinction had always been drawn between the public duties enforceable by mandamus that are statutory and duties arising merely from contract. Contractual duties are enforceable as matters of private law by ordinary contractual remedies such as damages, injunction, specific performance and declaration. In the Administrative Law (Ninth Edition) by Sir William Wade and Christopher Forsyth, (Oxford University Pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. In a book on Judicial Review of Administrative Action (Fifth Edn.) by de Smith, Woolf & Jowell in Chapter 3 para 0.24, it is stated thus: "A body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. This may happen in a wide variety of ways. For instance, a body is performing a public function when it provides "public goods" or other collective services, such as health care, education and personal social services, from funds raised by taxation. A body may perform public functions in the form of adjudicatory services (such as those of the criminal and civil courts and tribunal system). They also do so if they regulate commercial and professional a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntervene. 13. Lloyd L.J., agreeing with the opinion expressed by Sir John Donaldson M.R. held : "I do not agree that the source of the power is the sole test whether a body is subject to judicial review, nor do I so read Lord Diplock's speech. Of course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If at the end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review." 14. In that decision, they approved the observations made by Lord Diplock in Council of Civil Service Unions v.Minister for the Civil Service (1985) A.C. 374, 409 wherein it was held : "...for a decision to be susceptible to judicial review the decision- maker must be empowered by public law (and not merely, as in arbitration, by agreement between private parties) to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a writ petition under Article 226 in the High Court of Andhra Pradesh challenging the validity of an agreement entered into between the employees and the company, seeking a writ of mandamus or an order or direction restraining the appellant from implementing the said agreement. The appellant raised objection as to the maintainability of the writ petition. The learned Single Judge dismissed the petition. The Division Bench held that the petition was not maintainable against the company. However, it granted a declaration in favour of three workmen, the validity of which was challenged before this Court. This Court held at pages 589-590 as under: "...that the applicant for a mandamus should have a legal and specific right to enforce the performance of those dues. Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or any inferior tribunal requiring him or them to do s particular thing therein specified which appertains to his or their office and is in the nature of a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred by statute or when by virtue of the function it is performing or possible its dominant position in the market, it is under an implied duty to act in the public interest. By way of illustration, it is noticed that a private company selected to run a prison although motivated by commercial profit should be regarded, at least in relation to some of its activities, as subject to public law because of the nature of the function it is performing. This is because the prisoners, for whose custody and care it is responsible, are in the prison in consequence of an order of the court, and the purpose and nature of their detention is a matter of public concern and interest. After detailed discussion, the learned authors have summarized the position with the following propositions : (1) The test of a whether a body is performing a public function, and is hence amenable to judicial review, may not depend upon the source of its power or whether the body is ostensibly a "public" or a "private" body. (2) The principles of judicial review prima facie govern the activities of bodies performing public functions. (3) However, not all decisions taken by bodies in the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant bank preferred an appeal, but the same was dismissed and the decision of the Division Bench was challenged before this Court. This Court observed that a private company carrying on business as a scheduled bank cannot be termed as carrying on statutory or public duty and it was therefore held that any business or commercial activity, whether it may be banking, manufacturing units or related to any other kind of business generating resources, employment, production and resulting in circulation of money which do have an impact on the economy of the country in general, cannot be classified as one falling in the category of those discharging duties or functions of a public nature. It was held that that the jurisdiction of the High Court under Article 226 could not have been invoked in that case. 29. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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." 28. We adopted the triple test criteria as laid down in Binny Limited & Anr. case (supra) to come to our conclusion and in our considered view the same course of action has to be followed in the present case. The law in this behalf is well settled yet elaborate submissions were made by learned counsels, once again, reiterating those, citing the same very pronouncements 29. Respondent No.1 was undoubtedly appointed in pursuance to the letters of appointment as a Research Professor. DA, HRA, CCA, Transport Allowance were admissible as per the Central Government Rules enforced from time to time. Termination of appointment is by the three calendar months notice or pay in lieu thereof. Respondent No.1 was required to undertake Policy Research in pursuance to objective and programmes of the CPR. 30. The factual aspects emphasized by respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appointment, however, whether an organization like the Centre which carries on educational activity can absolve itself from judicial scrutiny under Article 226 of the Constitution of India while dealing with the violation of its norms in such termination is the moot point. We find that the answer to this is clearly in the negative. 33. The documents filed on record show that the communications have been issued from the Ministry of Human Resource, Government of India to ICSSR for pay revision of employees of research institutes/regional centres supported by ICSSR and the enhancement of aid for them in which the Centre is at serial No.1. Such revision of scales as per the communication inter alia dated 22.2.2000 shows that it has to be in accordance with the State Government notifications and where posts have been created, upgraded only after obtaining Government of India/ICSSR approvals. The pay scales and allowances of the academic and non-academic employees are to be in conformity with the UGC scales. The service conditions of employees especially relating to hours of work, payment of OTA, medical allowances, etc. are also to be identical to the State/Central Government emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e UGC norms or State Universities Norms. 7. The revised pay scales will not be extended in respect of the employees who are enjoying the scales of pay not approved by the Government/ICSSR but have resulted from any personal promotion or Career Growth Scheme if any. Such cases will be referred to this Department by the ICSSR separately. 8. ICSSR will bear 90% of the total expenditure on account of revised pay scales in respect of the institutes which are receiving 100% grant and 45% where the funding is on 50:50 basis between the Central Government/State Govt. 10% additionality will be met by the Institute through savings under various heads. 9. The ICSSR will ensure that the medical facilities to the staff are in line with the CS (MA) Rules. 10. Merit Promotion Scheme, if exists, should be discontinued before extension of revised pay scales. 11. All cases where there is any variation in the pattern of emoluments structure and conditions of service will be referred to Department of Secondary Education and Higher Education for consideration/approval separately and will not be extended revised pay scales without prior approval of this Department. 12. Special Audit of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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