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TMI Blog2019 (2) TMI 2110X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. Public law remedy by way of judicial review is available under Articles 32 and 226 of the Constitution. They do not operate in different fields. Article 226 operates only on a broader horizon to cover any other person or body performing public duty and not confined only to statutory authorities and instrumentalities of the State. Governmental functions are multifacial. There cannot be a single test for defining public functions. Such functions are performed by a variety of means. Furthermore, even when public duties are expressly conferred by statute, the powers and duties do not thereunder limit the ambit of a statute, as there are instances when the conferment of powers involves the imposition of duty to exercise it, or to perform some other incidental act, such as obedience to the principles of natural justice. Many public duties are implied by the Courts rather than commanded by the legislature; some can even be said to be assumed voluntarily. There are, however, public duties which arise from sources other than a statute. A private body though not State , but performing public duty is amenable to the writ jurisdiction under Article 226 of the Constitution. Whether a writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t held that a private educational body performing public duty or discharging public function would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution of India, consequently, in the opinion of the referring Court, the Full Bench judgment of this Court in M.K. Gandhi and others v. Director of Education (Secondary) UP. and others, 2005 (4) ESC 2265 (All)(FB) (M.K. Gandhi case) and Division Bench decision rendered in Anjani Kumar Srivastava v. State of U.P. and others, 2017 (7) ADJ 112 (DB) (Anjani Kumar Srivastava case) needs to be revisited. Relevant portion of the referring order reads thus: "In my opinion, since the judgment of Ramesh Ahluwalia (supra) clearly stipulates that even a purely private body where the State has no control over its internal affairs would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution if it discharges a public function or public duty, the judgment of the Full Bench of this Court in M.K. Gandhi as well as the Division Bench judgment in Anjani Kumar Srivastava needs to be revisited. It is, therefore, directed that the records of this case be placed before the Hon'ble C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t dated 14 August 2007 observed as follows: '"That all the respondents were teachers in DPS School, Ghaziabad. Their services were terminated. Therefore, they approach the High Court of Allahabad for setting aside the termination order. The learned Single Judge referred the matter to a larger Bench on the question as to whether the writ petition is maintainable against the private school or not, as there was conflict of opinion of that High Court. Subsequently, the matter was referred to the larger Bench and the larger Bench after hearing the parties, held that no writ will lie against the private school as it is not a 'State' within the meaning of Article 12 of the Constitution of India. Having held that the writ petition is not maintainable against the private body, still, they directed the CBSE to take action, as mentioned above. With great respect to the Full Bench of the High Court, we fail to understand the direction given by the Allahabad High Court. In our opinion, the direction given by the Allahabad High Court to the CBSE to totally misconceived and uncalled for. When the Allahabad High Court has already held that the DPS School is within the meaning of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ill rights against an authority, it will have to satisfy that the authority is 'State' within the meaning of Article 12 of the Constitution, failing which, Part-Ill rights cannot be invoked against the said authority. Thus, the importance of the concept and understanding of what is 'State' within the meaning of Article 12 of the Constitution. 5. Article 12 of the Constitution reads thus: "12. Definition--In this part, unless the context otherwise requires, the State includes : Government and Parliament of India. Government and the Legislature of each of the States. All local or other authorities within the territory of India or under the control of the Government of India". 6. A perusal of the above Article shows that the definition of 'State' in the said Article includes the Government of India, Parliament of India, Government of the State, Legislatures of the States, local authorities as also 'other authorities'. 7. The importance of 'State' as contemplated under Article 12, is confined to the restrictions placed in Part-Ill of the Constitution upon the 'State' as against rights conferred by the said Part. Part III de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s meaning 'means' and 'includes' could be gathered not merely from other provisions of Part-III but also from Art. 12 itself...... There is no characterization of the nature of the "authority" in this residuary clause and consequently it must include every type of authority set up under a Statute for the purpose of administering laws enacted by the Parliament or by the State including those vested with the duty to make decisions in order to implement those laws." 10. Thus, quasi judicial statutory authorities acting under statutes was held to be 'State'. 11. In Rajasthan State Electricity Board v. Mohan Lal, 1967 AIR 1857 : 1967 SCR (3) 377, Constitution Bench held that the expression 'other authority' is wide enough to include within it every authority created by a statute, on which powers are conferred to carry out Governmental or quasi-Governmental functions and functioning within the territory of India or under the control of the Government of India, a departure from the restricted view taken earlier that statutory bodies like universities, were not 'other authorities' for the purpose of Article 12. 12. Within a decade, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by or under the control of the Government. (3) Such control must be particular to the body in question and must be pervasive." 14. A body which is financially, functionally, administratively dominated, by or under the control of the Government on established facts alone would be 'State' under Article 12. Article 226 of the Constitution: 15. The power of the High Court to issue writ begins with a non-obstante clause. The power and jurisdiction of the High Court is much wider. The jurisdiction extends to enforcement against infringement of Part III rights, against 'State' and also against 'any person or authority' and 'for any other purpose'. The limitation of action against the 'State' alone is not there under Article 226 of the Constitution. Thus, there is distinction between the powers to issue writs as between the Supreme Court and the High Court. The power to issue writ conferred upon the Supreme Court by Article 32 is for enforcement of Part III rights, but the power to issue writs as conferred under Article 226 upon the High Court is for enforcement of fundamental rights as against 'State' and non fundamental rights as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied." (Para No. 82 at page 2208) 18. The words 'any other purpose' makes the jurisdiction of the High Court to issue writ more extensive than that of Supreme Court. 'Any other purpose' means a purpose for which any of the writs could, according to well established principles issue and not otherwise. In short the words means 'enforcement of legal right' and the performance of any legal duty. (Refer: State of Orissa v. Madangopal Rungta, AIR 1952 SC 12; Fertilizer Corporation Kamgar Union v. Union of India, AIR 1981 SC 344 : Calcutta Gas Corporation v. State of West Bengal, AIR 1962 SC 1044) 19. Though the jurisdiction of the High Court is not confined to issuing prerogative writs, there is consensus of opinion, the Court will not permit this extraordinary jurisdiction to be converted into a suit. A declaration that a contract of service with the employer still sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matically become one taken under 'state authority'. Private action would not be a public function. Which authorizations would have that Constitution triggering effect will necessarily turn on the character of the decision-making responsibility placed in private hands. However described, there must exist a category of responsibilities regarded at any given time as so 'public' or 'Governmental' that their discharge by private persons, pursuant to state authorization even though not necessarily in accord with state direction, is subject to the constitutional norms that would apply to public officials discharging those same responsibilities. 24. Governmental functions are multifacial. There cannot be a single test for defining public functions. Such functions are performed by a variety of means. Furthermore, even when public duties are expressly conferred by statute, the powers and duties do not thereunder limit the ambit of a statute, as there are instances when the conferment of powers involves the imposition of duty to exercise it, or to perform some other incidental act, such as obedience to the principles of natural justice. Many public duties are implied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ially in view of the words/expression 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. The Court in Binny Ltd. (supra) observed as follows: "29.............If the private body is discharging a public duty imposed on such body, then 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." 29. The Supreme Court finally in para 32 held that though the private body need not be a 'State' within the meaning of Article 12, such body would be amenable to writ jurisdiction of the High Court under Article 226 provided there must be public law element in such action. "32. Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not 'State' within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y's decisions......." 32. In Andi Mukta, the question before the Supreme Court was as to whether mandamus can be issued at the instance of an employee (teacher) against a Trust registered under Bombay Public Trust Act, 1950 which was running educational institutions. The main legal objection of the Trust while opposing the writ petition of their employee was that since the Trust is not statutory body and hence it cannot be subject of writ jurisdiction of the High Court. 33. The Supreme Court on the question of maintainability of the writ petition for mandamus as against the management of the college held as under: "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 major role in the control, maintenance and working of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ways a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32. 33. Thus, it is clear that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226......" 35. The ratio decidendi of Zee Telefilms is clear that: (i) BCCI a private body is not 'State' within the meaning of Article 12; (ii) BCCI discharges public functions; (iii) an aggrieved party can seek public law remedy against the BCCI under Article 226 of the Constitution of India. 36. In G. Bassi Reddy v. International Crops Research Institute and other, 2003 (4) SCC 225, the Supreme Court observed that though 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... body performing public duty would depend upon the facts and the nature of the offending act complained against. Educational Institution 40. Whether private educational institutions perform public duty? 41. To impart education is a State function, it is the obligation of the welfare State to ensure that children are imparted education, which is one of the directive principles of State Policy enshrined in Article 41 of the Constitution of India. The State can, however, delegate its functions to the private sector educational institutions and while doing so, the State has created its limbs as it was in the case of companies and corporation to discharge its constitutional obligation of imparting education at all levels from primary to higher education. 42. The State neither has the funds and resources to setup educational institutions and in particular institutions imparting higher education. Imparting education is not a State monopoly, though it is one of the most important functions of the Indian State. The right to establish and administer educational institution is guaranteed under the Constitution to all citizens under Article 19(1)(g) and 26, and to the minorities specifical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be partly overruled by the subsequent eleven Judge Bench in T.M.A. Pai Foundation and others v. State of Karnataka and others, (2002) 8 SCC 481 (T.M.A. Pai case), however, the ratio decidendi, insofar educational institution discharging public function and it is the duty of the State to provide education to children from the age of six to fourteen years held to be fundamental right was affirmed. 47. The Supreme Court again got an opportunity to examine the issue as to whether private institution imparting education in higher studies to students is discharging 'public function' and whether, Deemed University notified by the Central Government under Section 3 of the University Grants Commission Act, 1956 (UGC Act) which, inter alia, provides for effective discharge of public function, namely, education for the benefit of public is an authority within the meaning of Article 12 of the Constitution then as a necessary consequence, it becomes amenable to writ jurisdiction of High Court under Article 226 of the Constitution. The Court in SRM University held that the institution engaged in/and imparting higher studies to students is discharging 'public function' by imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition seeking parity of pay-scale on the strength of executive instructions issued by the Government, whereunder, employees of private college were entitled to pay-scale at par with the Government employees. The Supreme Court while examining the question of their locus to file petition under Article 226 of the Constitution of India observed: "We are of the view that the State has obligation to provide facilities and opportunities to the people to avail of the right to education. The private institutions cater to the needs of the educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the orders issued by the Government. The question is as to which forum one should approach. The High Court has held that the remedy is available under the Industrial Disputes Act. When an element of public interest is created and the institution is catering to that element, the teacher, the arm of the institution is also entitled to avail of the remedy provided under Article 226; the jurisdiction part is very wide. It would be different position, if the remedy is a private law remedy. So, they cannot be denied the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, we are of the opinion that requiring a teacher or a member of the staff to go to a Civil Court for the purpose of seeking redress is not in the interest of general education. Disputes between the management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an Educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an Educational Tribunal in a State-the object being that the teacher should not suffer through the substantial costs that arise because of the location of the Tribunal; ........The State Government shall determine, in consultation with the High Court, the judicial forum in which an aggrieved teacher can file an appeal against the decision of the management concerning disciplinary action or termination of service." 51. In compliance a number of States have set up Education Tribunal, the Government of Uttar Pradesh, however, is yet to comply. We hope and trust that Education Tribunal is setup in the State at the earliest being in the interest of general education, teachers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that impart education, where "education" is as understood hereinabove." 55. Education should not be misunderstood to include coaching/tuition/play-way establishment. These are private activity and, are not covered by the expression 'education' nor they perform public duty. 56. Education at every level is fundamental and is a matter of public importance; the country's future depends upon the same. Education is one of the most important function of the Indian State and it has no monopoly therein. The private educational institution aided/unaided, run and managed by the minority or majority communities rendering education to children/students from the age of six onwards cater to the obligation of the State to provide opportunity in education to the people to avail education. We accordingly hold that all these educational institutions are subject to judicial review of the High Court under Article 226 of the Constitution of India. M.K. Gandhi/Anjani Kumar Srivastava case 57. The petitioners before the Full Bench were teachers in Delhi Public School (D.P.S. School) duly affiliated with Central Board of Secondary Education (CBSE). The services of the teacher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the negative. The Full Bench of our Court in Aley Ahmad Abidi v. District Inspector of Schools, AIR 1977 All 539, (The Aley Abidi Case) has held that: "The Committee of Management of an Intermediate College is not a statutory body. Nevertheless, a writ petition filed against it is maintainable if such petition is for enforcement of performance of any legal obligations or duties imposed on such committee by a statute." 37. The committee of management of the D.P.S. School is recognised by the Board but it is neither a statutory body nor a State within the meaning of Article 12. The legal obligation or duty on the D.P.S. School is neither imposed by any statute nor by any statutory provision : it has been imposed by the affiliation bye-laws and agreement which is a contract between the parties and non-statutory. In view of this the writ petition is not maintainable against the D.P.S. School for violation of the affiliation bye-laws." 61. In Anjani Kumar Srivastava, the Division Bench though noticing Ramesh Ahluwalia declined to interfere for the reason that private contract of service between the master and servant was not enforceable in writ jurisdiction. The case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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