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TMI Blog1985 (3) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... p and so also the two house-jobs. First petitioner did house jobs one in Paediatrics and the other in Medicine and second petitioner one in Gynaecology and Obstetrics and the other in Anesthesiology . They entered into a Bond as per Annexure VI to the petition, under which they agreed to pay to the Society a sum of ₹ 25,000/- on failure to serve the society after post graduation for a period of two years. These two students were interested in admission to the Post-Graduate course and had applied for that purpose. Petitioner No. 1 had given first preference to the subject Medicine, the second to Paediatrics and petitioner No. 2 to Gynaecology and Obstetrics. According to them, they were fully eligible, had nothing adverse against them and were entitled to admission on the basis of merit. They filed the complete applications well in time i.e. before 21st Jan. 1985. On 22nd Jan. 1985, they saw a notice on the Notice Board indicating that unless they got themselves relieved from the bonds in favour of the Society, they would not be considered. Interviews were fixed on 24th Jan. They were never offered any service by the Society and hence there was no question of paying ₹ 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spital was run by his Ashram and then by Gandhi Smarak Nidhi. In 1964 was formed an autonomous body Kasturba Health Society to manage the hospital. Dr. Sushila Nayar (respondent No. 10) was then the Union Health Minister. She experienced great difficulty in posting qualified doctors in rural areas. Prime Minister Shri Shastri suggested to the Health Minister to start Medical Colleges in rural areas so that young doctors trained in rural setting would better understand the health problems of rural areas and would be more willing to work in villages. Dr. Sushila Nayar suggested that the first rural medical college in the country should have Kasturba Hospital at Sewagram as its base. The Planning Commission approved of this proposal and the National Committee for Gandhi Centenary with President of India as its President and the Prime Minister as the Chairman of its Executive Committee gave blessings to the proposal. The Deputy Prime Minister and Finance Minister Shri Morarji Desai called a joint meeting of the Health and Finance Ministers of the Government of India and the Government of Maharashtra and Dr. Sushila Nayar, the President of the Kasturba Health Society. It was decided t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) Secretary, Ministry of Education and Drugs, Government of Maharashtra, Bombay. Five remaining members of the Governing Council and three remaining members of the Standing Finance Committee are representatives of the Society, of which the President of Zilla Parishad, Wardha happens to be one. 6. The academic courses are conducted by the Institute in accordance with the Ordinances framed by the Executive Council of the Nagpur University as required under the N.U.Act. Several matters such as appointment of staff, their termination etc. are also regulated by the N.U.Act. The study in various disciplines is regulated by the Indian Medical Council a statutory body under the Indian Medical Council Act, 1958 (I.M.C.Act). Any society desirous of forming an institution for imparting university education has to apply to the Nagpur University for affiliation. The procedure for affiliation is prescribed in Chapter VII of the N.U.Act. Before the N.U.Act came into force, the affiliation was governed by Chapter VI of the Nagpur University Act, 1963 which provided for constitution of Governing Council. S.43(3)(b) of the N.U.Act provides for constitution of separate L.M.C. to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embers representing the State and the Central Government and for such removal prior permission either of the Central Government or State Government is not necessary. 8. It is against the above backdrop that the scope and ambit of Art.226 vis-a-vis the right of the students for admission for studies in the Institute is to be examined. Art.226(1) read thus : 226. Power of High Courts to issue certain writs. - (1) Notwithstanding anything in Art.32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition ,quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III for any other purpose. Language of the Article does not create any bar against issuance of directions, orders or writs against a person. Writs include writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them. They can be issued not only for enfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it is observed in Sukhdev v. Bhagatram (1975)ILLJ399SC . institutions engaged in matters of high public interest or performing public functions are by virtue of the nature of the functions performed government agencies. Activities which are too fundamental to the society are by definition too important not to be considered government functions. In the case of Ramana Shetty v. International Airport Authority (1979)IILLJ217SC in the above context and in the context of an autonomous body being agency or instrumentality of the State and therefore a State within the inclusive meaning of Art. 12 it is observed : It is not the relationship of principal and agent which is relevant and material but whether the Corporation is an instrumentality of the Government in the sense that a part of the governing power of the State is located in the Corporation and though the Corporation is acting on its own behalf and not on behalf of the Government, its action is really in the nature of State action ............................................It will thus be seen that there are several factors which may have to be considered in determining whether a corporation is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar lines is another decision of the Division Bench of this Court in the case of Shreekant Rajeshwarrao Kshirsagar v. G.S. College of Commerce, Wardha 1978 MahLJ 22. These two decisions are based inter alia on the case of Prabhakar Jodh v. A.L.Pande [1965]2SCR713 a case under the University of Sauger Act 1946, under which also constitution of a Governing Body of a college is mandatory. Respondents placed heavy reliance on the case of Executive Committee of Vaish Degree College. Shamli v. Lakshmi Narain (1976)IILLJ163SC but that was not a case of managing committee constituted under the relevant law viz. Agra University Act. The ration in the case of Commr., Lucknow Division v. Kumari Prem Lata Misra [1977]1SCR957 will also have no application as it related to the basic section of a school which was not held to be a part of a recognised institution. We may at this stage notice that even a service contract form referred to in the Schedule A of the College Code under the N.U.Act has been held to be statutory by Full Bench of this Court in Premlata v. G.S. Tompe College 1981 MahLJ 332. 11. Thus we see no difficulty whatsoever in holding that Respondent No. 12 is a State with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a duty to act fairly and justly. In our judgment, this is consideration of prime importance in relation to a relief contemplated under Art. 226. This Court in the case of Corporation of the City of Nagpur v. The Nagpur Electric Light and Power Company Ltd. Nagpur MANU/MH/0132/1958 : AIR1958Bom498 had occasion to consider whether Nagpur Electric Light and Power Company Limited could be issued a mandamus for performing its duty under the Electricity Act or under the licence. The answer was recorded in the affirmative by making the following observations : In the Supreme Court case it is held that normally, writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of a public duty. The statutory duty, devolving upon a public utility concern is a public duty. Therefore it cannot be said that a public utility concern like the respondent is in the same position as a private party. In 73 Corpus Juris Secundum at page 998, it is observed : As a gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when subject to the regulations made by the Education Department of the Union Territory of Chandigarh as also the appointment of Headmaster to be valid must be approved by the Director of Public Instruction, would certainly be amenable to the writ jurisdiction of the High Court. The High Court unfortunately, did not even refer to the decision of the Constitution Bench in Ajay Hasis's case rendered on Nov. 13, 1980 while disposing of the writ petition in 1983. In Ajay Hasia's case, Bhagwati J., speaking for the Constitution Bench inter alia observed that the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. Add to this 'the existence of deep and pervasive State control which may afford an indication that the Corporation is a State agency or instrumentality.' Substituting the words 'public trust' in place of the 'corporation' the reasons will mutatis mutandis apply to the school. Therefore, also the High Court was in error in holding that the third-respondent school was not amenable to the writ jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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