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TMI Blog1997 (5) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... ollege, Ludhiana and its Principal. The respondents appeared and raised a preliminary objection regarding the maintainability of the writ petition. The Bench, consequently, directed that "the matter be placed before Hon'ble the Chief Justice for consituting a larger Bench at an early date." It was placed before a Bench of three Judges. Keeping in view the fact that the issue had been referred to a Full Bench of five Judges in Dr. Midha's case and the correctness of the view taken by the Full Bench in Gurpreet Singh's case was to be examined, it was directed that this matter be placed before a Bench of five Judges. Consequently, the case has been placed before this Bench. The facts may be briefly noticed. 2. The petitioner Miss Ravneet Kaur, ostensibly a Sikh, claims to be convert to Christianity. She applied for admission to the MBBS course at the Christian Medical College, Ludhiana against one of the seats reserved for the "candidates who are Christians, Indian Nationals and officially sponsored by a Church or a Mission. ....." It is alleged that the application was sponsored by the Bishop of Amritsar vide his letter dated June 12, 1996. A copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dates sponsored for Mission Hospitals. For this purpose, a Christian applicant having Indian Nationality has to "seek official sponsorship by a Church or Mission represented on the governing body of the Christian Medical College of Ludhiana Society." The application must obtain a letter stating that "the candidate is sponsored for MBBS admission for the year 1996." This letter of sponsorship had to be submitted along with the application form to the Registrar of the College on or before June 15, 1996 failing which the candidature was liable to be rejected. The petitioner did not submits "the official sponsorship letter as required by 15-6-1996 even up to 29-7-1996 i.e. the date of scrutiny of documents/ certificates and testimonials etc." She had only submitted "a commending letter instead of sponsorship letter." Her name "did not figure in the list of candidates sponsored by the Diocese of Amritsar....." On June 20, 1996, she was asked to produce "her confirmation letter/certificate which is a pre-requisite document of the sponsorship letter." Simultaneously, the College also wrote "a letter dated 20-6-1996 to the Fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t "he had never sponsored the petitioner" has been produced as Annexure A3. A copy of the Booklet containing the guidelines has been produced as Annexure A-4. It has also been stated that all the seats in the College had already been filled up and none of the candidates sponsored by the Diocese of Amritsar was admitted as they had failed to secure the qualifying percentage of marks in the written lest. 5. The petitioner has disputed the claim made by the respondents. She alleges that they have made an attempt to change the defence which "could be done only by amending the written statement filed in the writ petition.....". On merits, the petitioner has submitted that she was "baptised as (a) Christian on 1-1-1988 and as such, by the date of her application for admission to the College for the MBBS course, she had been (a) Christian for much more than five years." She has produced a copy of the Baptism Certificate as Annexure P-A. She admits that the format of the sponsorship letter has been prescribed by the College. It is at page 7 of the guidelines. However, she had "staked her claim for admission to the MBBS course" on the basis of the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for education are provided, the Government as well as the Boards and Universities have adopted certain regulatory measures. In case of technical education, the degree of control has been comparatively greater. In view of the importance of health to the community, so far as medical education is concerned, stringent measures have been laid down by an Act of Parliament. 10. The Parliament enacted the Indian Medical Council Act, 1956 to provide for the constitution of the Medical Council of India, the maintenance of a Medical Register and the matters connected therewith. Section 10-A of the Act inter alia provides that "no person shall establish a medical college..... except with the previous permission of the Central Government obtained in accordance with the provisions....." Even the existing medical colleges cannot "open a new or higher course of study or training..... or increase its admission capacity in any course of study or training....." without the prior approval of the Central Government Rigorous procedure for obtaining permission from the Central Government has been laid down. It is inter alia provided that "every person or medical college shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by any University or medical institution for the purpose of recommending to the Central Government recognition of medical institution. "Provision for appointment of visitors at examinations has been made under Section 18. If it is found that the course of study and examination to be undergone or that the staff, equipment, accommodation, training and other facilities for instruction provided in medical institution or University or College "do not conform to the standards prescribed by the Council" the Central Government can on the recommendation of the Council and after such further enquiry as it may consider necessary order withdrawal of recognition of the qualification or the institution. Under Section 19-A, the Council is competent to prescribe the minimum standards of medical education for granting recognised medical qualifications. The Council can also prescribe standards of professional conduct and etiquette and a code of ethics for medical practitioners. The Act provides for maintenance of registers, in the prescribed manner, of medical practitioners to be known as the Indian Medical Register and the State Medical Register which shall include the names of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he students for the University Examination. It can debar the members of the teaching staff from being appointed as examiners etc. or from seeking election to a University body or even continuing thereon. The College is bound to comply with the rules framed by the University in respect of "the conditions of service and conduct of teachers." The University also prescribed the academic qualifications and teaching experience etc. for appointment to the teaching posts in the Institution. 15. A combined reading of the provisions of the Indian Medical Council Act, 1956, the Panjab University Act, 1947 and the regulations/rules framed thereunder indicates a significant degree of control over the Institution by the Central Government, the Medical Council of India and the University. This control is virtually all pervasive. Every field of activity viz. the course of study, the recruitment of the staff, the facilities for providing education and training and even the conditions of service of the members of the staff are regulated. 16. Another fact which may be mentioned here is that during the later part of this century, there have been rapid advances in Biotechnology. Sophisticat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act was committed. Article 21 guarantees the right to life and liberty. It has been interpreted to include the right to education. Article 22 embodies the safeguards against arrest and detention. Articles 23 to 28 embody protection against exploitation, prohibition of employment of children in factories and right to freedom of religion etc. Article 29(1) confers the fundamental right on every section of citizens to conserve their distinct language, script and culture. In exercise of this right, any section of citizens can establish and maintain an educational institution as such a right "is a necessary concomitant to the right to conserve its distinctive language, script or culture....." (see Kerala Education Bill-- AIR 1958 SC 956 Para 20 at Page 976. Clause 2 of Article 29 debars any educational institution receiving aid out of the State funds from denying admission on grounds "only of religion, race, caste, language....." In other words, the provision confers a fundamental right on every citizen not to be discriminated against in the matter of admission even by a private Educational Institution receiving financial aid from the Government on the grounds of rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rongly contrasted classes. The private institutions performing public duties supplement the State's effort. They are partners with the State. The private and Governmental institutions are the two sides of the same body. The right side cannot smile when the left side is pinched. 21. Mr. Patwalia, counsel for the respondent-College, however, contended that in spite of the wide language of Article 226, a writ can issue only against the State or other authorities as contemplated under Article 12 of the Constitution. He relied on the decision of a Division Bench of Madras High Court In re; Gadea Nagabhushana Reddi AIR 1951 Mad 249, to point out that a writ of prohibition cannot issue against a political party or that Article 226 should not be construed so as to replace the ordinary remedy available to a litigant under the general law of" the land. He also referred to a Division Bench decision of the Madras High Court in I.T. Corporation v. State of Madras, AIR 1954 Mad 549, and a decision of the Delhi High Court in National Seeds Corpn. Employees Union v. National Seeds Corporation, AIR 1972 Delhi 292, to point out that "it cannot be said that now under Article 226, a wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... became judicialised and redress was obtained through the King's Court rather than from the King himself. The development of the writ system, therefore, has about it a hint of paradox for modern administrative law; what began as executive commands aimed at avoiding judicial proceedings became in turn the central mechanism for the judicial control of executive action." Why the term 'prerogative writs'? In paragraph 14-008, it has been pointed out that "It is in a case decided by Montagu and three Brethren not noted for their independence of the Crown that Habeas Corpus is for the first time reported as being called a 'prerogative writ'. In Montagu's words, it is a prerogative writ, which concerns the King's justice to be administered to his subjects; for the King ought to have an account why any of his subjects are imprisoned." In paragraph 14-011, it has been stated-- "But it is easy enough to explain why Mansfield and Blackstone who were good King's men should have insisted on the prerogative character of Habeas Corpus. And if these were the qualities which in their eyes entitled Habeas Corpus to classification as a prerogati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can issue writs 'in the nature of.....'They can also issue directions or orders for the purpose of enforcing the rights conferred by Part III and for any other purpose. The conservative view as initially expressed by the Courts in India has not been accepted by the Apex Court in various decisions. In P.J. Irani v. State of Madras, AIR 1961 SC 1731, a Constitution Bench observed at Page 1738 that--"the power of the High Court under Article 226 of the Constitution is not limited to the issue of writs falling under particular groupings, such as the certiorari, mandamus etc. as these writs have been understood in England, but the power is general to issue any direction to the authorities viz. for enforcement of fundamental rights as well as for other purposes." 26. A few years later, in Dwarka Nath v. Income Tax Officer, AIR 1966 SC 81, it was held that (at Pp. 84 and 85 of AIR) :-- "Article 226 is couched in comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found. A wide language in describing the nature of the power, the purposes for which the person or authority against whom it can be exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st petition for release of bonded labour under Article 32 of the Constitution in Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, their Lordships at page 314 were pleased to observe as under :--- "The Constitution makers deliberately did not lay down any particular form of proceeding for enforcement of a fundamental right nor did they stipulate that such proceeding should conform to any rigid pattern or straight jacket formula as for example, in England, because they knew that in a country like India where there is so much of poverty, ignorance, illiteracy, deprivation and exploitation, any insistence on a rigid formula of proceeding for enforcement of a fundamental right would become self-defeating because it would place enforcement of fundamental rights beyond the reach of the common man and the entire remedy for enforcement of fundamental rights which the Constitution makers regarded as so precious and invaluable that they elevated it to the status of a fundamental right, would become a mere rope of sand so far as the large masses of the people in this country are concerned..... (Pr. 13) .....It will be seen that the power conferred by Clause (2) of Article 32 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Article 226 is much wider, because the High Courts are required to exercise this jurisdiction not only for enforcement of any legal right and there are many rights conferred on the poor and the disadvantaged which are the creation of statute and they need to be enforced as urgently and vigorously as fundamental rights." 29. A little later, in Umaji Keshao Meshram v. Smt. Radhikabai, AIR 1986 SC 1272, their Lordships held that the power under Article 226 of the Constitution was wider than the preconstitution power of the Chartered High Courts to issue prerogative writs. 30. The above decisions clearly show that the powers of the High Courts under Article 226 are not confined to the issue of prerogative writs as understood in England. The powers are much wider than those of the Court of King's Bench. These are not subject to the procedural restrictions being followed in a small country like England. 31. Mr. Patwalia placed strong reliance on the decision of the Full Bench of this Court in Gurpreet Singh's case to contend that a writ petition is not maintainable against a private educational institution. The Full Bench had concluded as under : "(i) that, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :-- "In short, the position is this; no educational institution except a University can award degrees (Sections 22 and 23 of the UGC Act). The private educational institutions cannot award their own degrees. Even if they award any certificates or other testimonials they have no practical value inasmuch as they are not good for obtaining any employment under the State or for admission into higher courses of study. The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private educational institution can survive or subsist without recognition and/or affiliation. The bodies which grant' recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory -- in the interest of general public -- upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students, recruitment of employees and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26 on the ground that it happens to be a private educational institution? Certainly not. 39. In view of these conclusions, the view taken by the Full Bench in Gurpreet Singh's case wherein it was held that "against these institutions, no general fundamental right of equality of admission on merits can even be invoked....." is no longer good law. A citizen can invoke the right to equality in the matter of admission on merit even against a private medical college affiliated to a University. This right "without a remedy will become a mere adornment..... as writ in water." It is not so. 40. Another thing which deserves mention is that even in England, there has been a clear change. It has been recognised that powers of court can no longer be ousted simply by invoking the word "prerogative". In 1949, Lord Denning wrote that "just as the pick and shovel is no longer suitable for the winning of coal so also the procedure(s) of mandamus (and) certiorari.....are not suitable for the winning of freedom in the new age. "According to Prof. De Smith, "Mandamus and certiorari have, in point of fact, proved to be surprisingly adaptable to modern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to the writ of certiorari in India, the learned author says as follows : Certiorari " 16.159. As before, the law will be stated with reference to Atkin L.J.'s statement of the principles which underline the Court's jurisdiction to issue certiorari. 16.160. The writ of certiorari lies not only against inferior courts stricto sensu, but to any person, body or authority having the duty to act judicially or the duty to act fairly....." 43. Their Lordships of the Full Bench have cited Seervai to maintain that the formulation of Lord Justice Atkin "still holds the field". With respect, the view taken by their Lordships does not appear to be correct. Seervai in para 16.94 (Constitutional Law of India, Third Edition --1984) has referred to the above observations and remarked that even though this passage has been quoted with approval by many Indian and English decisions, "the conclusions drawn from Lord Atkin's formulations of the scope of certiorari that it lay only to quash proceedings where there was a duty to act judicially, is no longer fully accurate, for certiorari has been granted in cases of administrative nets if there was a duty to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve broadened the much-cited description by Atkin LJ in R v. Electricity Commrs..... of bodies of persons subject to the supervisory jurisdiction of the High Court by prerogative remedies which in 1924 then took the form of the prerogative writs of mandamus, prohibition, certiorari and quo warranto by excluding Atkin LJ's limitation of the bodies of persons to whom the prerogative writs might, issue, to those 'having a duty to act judicially'. For the next forty years this phrase gave rise to many attempts with varying success, to draw subtle distinctions between decisions that were quasi-judicial and those that were' administrative only. But the relevance of arguments of this kind was destroyed by the decision of this House in Ridge v. Baldwin (1963) 2 All ER 66 : (1964) AC 40, where again the leading speech was given by Lord Reid., Wherever any person or body of persons has authority conferred by legislation to make decisions of the kind I have described, it is amenable to the remedy of an order to quash its decision either for error of law in reaching it or for failure to act fairly towards the person who will be adversely affected by the decision by failing to ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Pages 535 to 537). 48. Nearer home, certiorari is now available in cases wherein even an administrative act or decision affects civil rights or has civil consequences. In State of Orissa v. Binapani Dei, AIR 1967 SC 1269, it was observed as under (at p. 1271 of AIR) :-- "The State was undoubtedly not precluded, merely because of the acceptance of the date of birth of the first respondent in the service register, from holding an enquiry if there existed sufficient grounds for holding such enquiry and for re-fixing her date of birth. But the decision of the State could be based upon the result of an enquiry in manner consonant with the basic concept of justice. An order by the State to prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fair-play. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is, however, under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve unlawfully usurped jurisdiction : they act with lawful authority, albeit such authority is derived from the executive and not from an Act of Parliament. In the past this Court has felt itself able to consider the conduct of a Minister when he is acting judicially or quasi-judicially and while the present case may involve an extension of relief by way of certiorari I should not feel constrained to refuse such relief if the facts warranted it." 51. Almost two decades later in R. v. Panel on Take Overs (1987) 1 All ER 564 it was observed as under :-- ''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 other 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 : see R. v. Disputes Committee of the National Joint Council for the Craft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han those of the Court of King's Bench in England. (ii) The power of the High Courts is not confined to the issue of prerogative writs as initially understood in England. The procedural restrictions which had been imposed on the Courts in England do not bind the High Courts in this country. The High Courts are empowered to issue not only writs in the nature of certiorari, mandamus etc. but also orders and directions to enforce fundamental rights or for any other purpose. (iii) The power under Article 226 of the Constitution is not confined to the enforcement of fundamental rights like the power under Article 32. Still further, the High Courts can issue writs, orders or directions even to any person or authority discharging a public duty for enforcement of the fundamental rights or for any other purpose. (iv) The words "any person or authority" used in Article 226 do not mean only State as defined in Article 12 or statutory authorities. These cover any person or body performing a public duty. (v) In view of the importance of 'health' to the Community, institutions providing medical education form a distinct class. These institutions perform a public dut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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