* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 14.01.2010
% Date of decision: 12.03.2010
+ LPA No.220 of 2002
CENTRE FOR POLICY RESEARCH ...APPELLANT
Through: Mr. R.K.P. Shankardas, Sr. Advocate
with Mr. P. Nagesh &
Mr. Anand Mishra, Advocates.
Versus
BRAHMA CHELLANEY & ORS. ...RESPONDENTS
Through: Mr. Akhil Sibal, Mr. Salim Inamdar,
Ms. Aeshna Singh & Ms. Mihira
Sood, Advs. for Respondent No.1.
+ LPA No.313 of 2002
V.A. PAI PANANDIKER ...APPELLANT
Through: Mr. Amarjit Singh Bedi, Advocate.
Versus
BRAHMA CHELLANEY & ORS. ...RESPONDENTS
Through: Mr. Akhil Sibal, Mr. Salim Inamdar,
Ms. Aeshna Singh & Ms. Mihira
Sood, Advs. for Respondent No.1.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be
reported in the Digest? Yes
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LPA Nos.220 of 2002 & 313 of 2002 Page 1 of 32
SANJAY KISHAN KAUL, J.
1. Persons of eminence in their field are also not above personal
prejudices and petty squabbles. The present litigation is a
consequence of such an approach.
2. The Centre for Policy Research (for short „Centre‟), appellant herein,
was set up as a Society registered under the Societies Registration
Act, 1860 with the objective of planning, promoting and providing
for education and training in policy planning and management areas.
The Memorandum of Association inter alia provides for holding
seminars and conferences, conducting research, promoting education
and development of personnel with the objective of maximization of
the national resources. The Memorandum is widely worded and 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
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LPA Nos.220 of 2002 & 313 of 2002 Page 2 of 32
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
decision on that resignation was deferred by the Governing Body of
the Centre. The Union of India preferred an appeal against the
interlocutory order but the same was dismissed as withdrawn in view
of the writ petition, which was pending. The writ petition came to be
decided by the learned single Judge of this Court on 18.1.2002. The
writ of respondent No.1 was allowed with costs of Rs.10,000.00
against Dr. V.A. Pai Panandiker.
3. The Centre preferred a Letters Patent Appeal which is before us and
Dr. V.A. Pai Panandiker also filed an appeal on similar grounds,
apart from raising the issue of imposition of costs personally on him.
Along with the appeal an application for interim stay was also filed
but the same was dismissed as not pressed.
4. The Centre decided to accept the decision of the learned single Judge
insofar as the quashing of the termination of services of respondent
No.1 is concerned but constituted an Inquiry Committee to look into
the conduct of respondent No.1. On the basis of the
recommendations of the Inquiry Committee action was sought to be
taken against respondent No.1 which was challenged by respondent
No.1 in WP (C) No.4542/2002. The said writ is still pending and
interim orders in favour of respondent No.1 were granted.
5. The result of all this is that the impugned action of termination
against respondent No.1 which resulted in the orders of the learned
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LPA Nos.220 of 2002 & 313 of 2002 Page 3 of 32
single Judge which is now sought to be impugned in the present
appeals does not stand and has been accepted by the appellant Centre.
The appellant Centre is, however, aggrieved by certain conclusions
drawn by the learned single Judge in respect of the nature of entity
which the Centre is and that is the reason learned counsel for the
appellant refused to give up the appeal stating that though the original
cause of action may have been extinguished, the appellant Centre has
a right to agitate the appeal on the question of law decided by the
impugned judgement. We may notice that an endeavour was made to
work out an amicable solution but the same proved to be futile.
6. In the impugned judgement the learned single Judge has made certain
observations about the Centre being a „state‟ within the meaning of
the expression “other authority” under Article 12 of the Constitution
of India which raises certain doubts. Learned counsel for respondent
No.1 fairly stated, and it was 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”.
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LPA Nos.220 of 2002 & 313 of 2002 Page 4 of 32
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 observations in the impugned judgement in that behalf are liable
to stand. The judgements cited by learned counsels for the parties are
more or less the same but it is the conclusion sought to be derived in
the factual matrix of the Constitution of the Centre and its upkeep
over which there is divergence.
9. Learned counsel for the appellant submitted that the issue is no more
res integra in view of the observations of the Supreme Court in
Binny Limited & Anr. Vs. V. Sadasivan & Ors. (2005) 6 SCC 657 as
a triple test has been laid down for invocation of remedy under
Article 226 of the Constitution of India:
a. The private body is discharging a public function.
b. The decision sought to be corrected or enforced must be in
discharge of a public function.
c. The public duty imposed is not of a discretionary character. It
has also been observed that the scope of mandamus is
determined by the nature of duties to be enforced rather than
the identity of the authority against whom it is sought.
10. Learned counsel submitted that the aforesaid legal principle has
emerged over a period of time and there are even earlier judgements
which, in fact, adopted the same legal principle. In G. Bassi Reddy
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LPA Nos.220 of 2002 & 313 of 2002 Page 5 of 32
Vs. International Crops Research Institute & Anr. (2003) 4 SCC 225,
it was observed that the public function or public duty should be
similar to or closely related to those performable by the state in its
sovereign capacity and thus it was observed that the primary activity
of ICRI is to conduct research and training programme in the sphere
of agriculture purely on a voluntary basis and such a service
voluntary undertaken could not be said to be a public duty. In
Federal Bank Limited Vs. Sagar Thomas & Ors. (2003) 10 SCC 733,
a writ under Article 226 of the Constitution of India was held to be
maintainable against any person or authority performing public duty,
owing positive obligation to the effected party. Thus, private
companies carrying on business or commercial activity or banking in
conformity with the Reserve Bank of India banking policy was held
not sufficient to bring them within the ambit of discharge of any
public function or public duty.
11. Learned counsel also emphasized that the learned single Judge has
been unnecessarily influenced by the factum of land being made
available by the Government of India to the Centre as a criteria for
bringing it within the domain 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.
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LPA Nos.220 of 2002 & 313 of 2002 Page 6 of 32
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 land being allotted at concessional rates was deemed to be
a factor to prevent the Centre from claiming immunity from judicial
review under Article 226 of the Constitution of India.
14. We may observe at this stage insofar as the factual dispute is
concerned, the learned single Judge opined that since the
appointment of respondent No.1 was made by the Governing Body, it
was only a decision of the Governing Body which could terminate his
services. It was found that there was lack of specific authorization on
delegation of power to Dr. V.A. Pai Panandiker to take the decision
of termination of services of respondent No.1.
15. Learned counsel also sought to specifically deal with the aspect of
educational institutions since the stand of respondent No.1 was that
the Centre was intrinsically involved in the aspect of education and
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LPA Nos.220 of 2002 & 313 of 2002 Page 7 of 32
was enrolling students and granting certificates in respect of the
same. It was submitted that the word “Education” should be
understood in the sense of systematic instruction, schooling or
training given to young in preparation for the work of life and
connotes the whole course of scholastic instruction which a person
has received as observed in The Sole Trustee, Lok Shikshana Trust
Vs. CIT, Mysore (1976) 1 SCC 254. Similarly in T.M.A. Pai
Foundation Vs. State of Karnataka (2002) 8 SCC 481, it was
observed in para 287 as under:
“287. Education plays a cardinal role in transforming a society into a
civilised nation. It accelerates the progress of the country in every
sphere of national activity. No section of the citizens can be ignored or
left behind because it would hamper the progress of the country as a
whole. It is the duty of the State to do all it could, to educate every
section of citizens who need a helping hand in marching ahead along
with others.”
16. In S. Azeez Basha Vs. Union of India AIR (1968) SC 662 the nature
of educational institutions was dealt with as under:
“21. Before we do so we should like to say that the words
“educational institutions” are of very wide import and would
include a university also. This was not disputed on behalf of the
Union of India and therefore it may be accepted that a religious
minority had the right to establish a university under Article 30(1).
The position with respect to the establishment of Universities
before the Constitution came into force in 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
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LPA Nos.220 of 2002 & 313 of 2002 Page 8 of 32
Government of the country was bound to recognise those degrees.
As a matter of fact as the law stood up to the time the Constitution
time into force, the Government was not bound to recognise
degrees of universities established by private individuals or bodies
and generally speaking the Government only recognised degrees
universities established by it by law. No private individual or body
could before 1950 insist that the degrees of any university
established by him or it must be recognised by Government. Such
recognition depended upon the will of government generally
expressed through statute. The importance of the recognition of
Government in matters of this kind cannot be minimised. This
position continued even after the Constitution came into force. It is
only in 1956 that by sub-section (1) of Section 22 of the University
Grants Commission Act, (3 of 1956) it was laid down that “the
right to conferring or granting degrees shall be exercised only by a
University established or incorporated by or under a Central Act, a
Provincial Act or a State Act or an institution deemed to be a
University under Section 3 or an institution specially empowered
by an Act of Parliament to confer or grant degrees”. Sub-section
(2) thereof further provided that “save as provided in sub-section
(1), no person or authority shall confer, or grant, or hold himself or
itself as entitled to confer or grant any degree”. Section 23 further
prohibited the use of the word “university” by an educational
institution unless it is established by law. It was only thereafter that
no private individual or body could grant a degree in India.
Therefore it was possible for the Muslim minority to establish a
university before the Constitution came into force, though the
degrees conferred by such a university were not bound to be
recognised by Government.”
17. Learned counsel also referred to the definitions of “Research” since
the Centre is primarily engaged in research works. The following
three definitions were referred to for the said purpose:
“From New Shorter Oxford Dictionary 1993
“1. …. 2. A search or investigation undertaken to discover facts or
reach new conclusions by a critical study of a subject or by a
course of scientific inquiry. 3. Systematic investigation into and
study of materials, sources, etc., to establish facts, collate
information, etc.; formal postgraduate study or investigation;
surveying of opinions or background information relevant 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
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LPA Nos.220 of 2002 & 313 of 2002 Page 9 of 32
“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 constitution of the Governing Body or
election of its new members. There was no mention of Government
control in its Memorandum and control of all operations vested with
the Governing Body. The appointment of staff and fellows was by
the Governing Body in its sole authority. The corpus is stated to be
raised from variety of sources including collaborations, foreign
foundations, multilateral agencies, etc. and the proportion of receipts
for the Government projects is very small as compared to total
receipts.
19. The grants received from ICSSR were stated to be not sufficient to
cover the salaries of core faculty and staff and thus salaries were paid
from the pool of resources.
20. An emphasis was laid on the fact that the Society has about 14
honorary faculty members with 21 paid faculty members and 19
supportive staff whose pay structure could be fixed by the Centre.
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LPA Nos.220 of 2002 & 313 of 2002 Page 10 of 32
The Centre voluntary adopted certain pay scales for some of the
faculties and staff members in terms of scales of UGC.
21. Learned counsel for respondent No.1, on the other hand, emphasized
certain important factual aspects which according to him should
weigh in making the Centre amenable to writ jurisdiction under
Article 226 of the Constitution of India especially in respect of
matters of employment of faculty. These are:
i. Notification dated 27.4.1977 of Ministry of Education &
Social Welfare establishing the status of the Appellant as an
educational institution.
ii. The Centre is included in Schedule to the Provident Fund Act,
1925 as a „Public Institution‟.
iii. The Centre is Government aided and certified educational
institution and has signed agreements with Manipal Academy
of Higher Education, a Deemed University, for providing
Doctoral and Post Doctoral training to students.
iv. The Centre is exempted from Income Tax under Section 10
(23C) (vi) of the Income Tax Act, 1961 as an educational
institution.
v. The Centre is recognized as a Scientific and Industrial
Research Organization entitling it to administrative support
from the Ministry of Science & Technology and to
custom/excise duty exemptions from import of equipment,
spares and consumables.
vi. The allotment of land to the Centre on account of its status as
an educational institution.
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LPA Nos.220 of 2002 & 313 of 2002 Page 11 of 32
vii. The applicability of ICSSR grant-in-aid rules on service
matters and the rules superseding the power of the Governing
Body to that extent.
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 Rs.1.58 crore was received
from public sources – recurring Government grant-in-aid
Rs.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 jurisdiction under Article 226 of
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LPA Nos.220 of 2002 & 313 of 2002 Page 12 of 32
the Constitution of India at least in respect of matters of employment
of the faculty.
23. Learned counsel also referred to some other judgements to canvas his
case. In K. Krishnamacharyulu & Ors. Vs. Sri Venkateswara Hindu
College of Engineering & Anr. (1997) 3 SCC 571 while dealing with
the issue of maintainability of writ petition under Article 226 of the
Constitution of India against a private party it was observed that there
was an element of public interest in respect of pay and allowances of
employees of non-aided private educational institution because there
is a right to education. The Supreme Court has held that where
interest is created by Government in an institution to impart
education, which is a fundamental right of the citizens, the teachers
who impart the education, get an element of public interest in the
performance of their duties. This in turn requires regulation of
conditions of service of those employees at par with Government
employees.
24. In N.K. Aggarwal Vs. Union of India & Ors. 137 (2007) DLT 153
(DB), KRIBHCO was held to be amenable to writ jurisdiction under
Article 226 of the Constitution of India as the scope of activities was
no way limited to manufacture and production of fertilizers but
clearly involved community development and farmer benefit. The
issue of question of Article 226 of the Constitution of India being
applicable was held not in any way dependent on Article 12 of the
Constitution of India. Once again, in Dr. T.C. Sharma Vs. Lieutenant
Governor & Ors. 82 (1999) DLT 289 (DB) the aspect of public duty
while exercising jurisdiction under Article 226 of the Constitution of
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LPA Nos.220 of 2002 & 313 of 2002 Page 13 of 32
India was emphasized in the context of SCERT in the context of its
employees seeking parity with NCERT. A Division Bench of
Karnataka High Court in Arun Narayan Vs. The State of Karnataka
& Anr. AIR 1976 Karnataka 174 took a similar view while dealing
with the aspect of admission to a private medical college.
25. We may notice that there have been two recent judgements of the
Division Benches of this Court where the question of amenability to
writ jurisdiction under Article 226 of the Constitution of India has
been dealt with. In All India Lawyers Union (Delhi Unit) Vs.
Government of NCT of Delhi & Ors. 163 (2009) DLT 319 (DB) it
was observed in para 46 as under:
“MAINTAINABILITY OF WRIT PETITION
46. Article 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 unlike the term in Article 12. Article 12 is relevant
only for the purpose of enforcement of fundamental rights under
Art.32. Article 226 confers power on the High Courts to issue writs
for enforcement of the fundamental rights as well as non-
fundamental rights. The words “any person or authority” used in
Article 226 are, therefore, not to be confined only to statutory
authorities and instrumentalities of the State. They may cover any
other person or body performing public duty. The form of the body
concerned is not very much relevant. What is relevant is the nature
of the duty imposed on the body. The duty must be judged in the
light of the positive obligation owed by the person or authority to
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LPA Nos.220 of 2002 & 313 of 2002 Page 14 of 32
the affected party. No matter by what means the duty is imposed, if
a positive obligation exists mandamus cannot be denied. It may be
pointed out that mandamus cannot be denied on the ground that the
duty to be enforced is not imposed by the statute. The judicial
control over the fast expanding maze of bodies affecting the rights
of the people should not be put into watertight 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 wherever it is found‟.
Technicalities should not come in the way of granting that relief
under Article 226. We also quote paragraphs 20 and 21 of the
judgment:
“20. In Praga Tools Corporation v. Shri C.A Imanual and Ors.,
(1969) 3 SCR 773 : (AIR 1969 Supreme Court 1306) , this Court
said that a mandamus can issue against a person or body to carry
out the duties placed on them by the Statutes even though they are
not public officials or statutory body. It was observed (at 778) ; “It
is however not necessary that the person or the authority on whom
the statutory duty is imposed need be a public official or an official
body, A mandamus can issue, for instance, to an official or a
society to compel him to carry out the terms of the statute under or
by which the society is constituted or governed and also to
companies or corporations to carry out duties placed on them by
the statutes authorising their undertakings. A mandamus would
also lie against a company constituted by a statute for the purpose
of fulfilling public responsibilities. (See Halsbury’s Laws of
England (3rd Ed. Vol. II p. 52 and onwards).”
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 India & Ors. 156 (2009) DLT
429 (DB) this very Bench had an occasion to deal with the question
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LPA Nos.220 of 2002 & 313 of 2002 Page 15 of 32
of amenability to writ jurisdiction under Article 226 of the
Constitution of India in respect of allotment of a house under Army
Welfare Housing Organisation, society registered under the Societies
Registration Act, 1860. We are naturally of the same view and
instead of embarking on a detailed discussion consider it appropriate
to reproduce our observations made in the said judgement:
“Whether the writ filed by the petitioner for redressal of her
grievance is maintainable under Article 226 of the Constitution of
India?
The aspect of maintainability of the writ petition under Article 226
of the Constitution of India has to be considered with reference to
the said Article which reads as under:
226. Power of High Courts to issue certain writs (1)
Notwithstanding anything in Article 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, order or writs, including (writs 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 and for any other purpose.
We have unfortunately not had the benefit of reference to any case
law by both the learned counsel for the parties. It is, however,
necessary to examine the legal position in this behalf in order to
appreciate the factual matrix.
(1989) 2 SCC 691 the difference in the meaning of the word
„authority‟ as used under Article 226 of the Constitution of India
and under Article 12 of the Constitution of India has been brought
out. It was observed that a writ petition under Article 226 of the
Constitution of India would be maintainable even against a private
body as it would fall within the definition of „any person or
authority‟ performing a public duty and owing a positive
obligation to the affected party. Such a duty on the person or
authority need not be imposed by Statute so long as it is doing a
public function having a public character. In the facts of the case,
the writ petition had been filed under Article 226 of 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
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LPA Nos.220 of 2002 & 313 of 2002 Page 16 of 32
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
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. (See-The Evolving Indian
Administrative Law by M.P. Jain (1983) p. 266). 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
existence of this relationship, mandamus can not be refused to the
aggrieved party.
16. The Law relating to mandamus has made the most spectacular
advance. It may be recalled that the remedy by prerogative writs in
England started with very limited scope and suffered from many
procedural disadvantages. To overcome the difficulties, Lord
Gardiner (the Lord Chancellor) in pursuance of Section 3(1)(c) of
the Law Commission Act, 1965, requested the Law Commission
“to review the existing remedies for the judicial control of
administrative acts and commissions with a view to evolving a
simpler and more effective procedure.” The Law Commission
made their report in March 1976 (Law Com No. 73). It was
implemented by Rules of Court (Order 53) in 1977 and given
statutory force in 1981 by Section 31 of the Supreme Court Act
1981. It combined all the former remedies into one proceeding
called Judicial Review. Lord Denning explains the scope of this
“judicial review”:
At one stroke the courts could grant whatever relief was
appropriate. Not only certiorari and mandamus, but also
declaration and injunction. Even damages. The procedure was
much more simple and expeditious. Just a summons instead of a
writ. No formal pleadings. The evidence was given by affidavit. As
a rule no cross-examination, no discovery and so forth. But there
were important safeguards. In particular, in order to qualify, the
applicant had to get the leave of a judge.
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LPA Nos.220 of 2002 & 313 of 2002 Page 17 of 32
The Statute is phrased in flexible 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 the English law. Under
Article 226 writs can be issued to a ‘any person or authority”.
It can be issued “for the enforcement of any or the
fundamental rights and for any other purpose”.
20. The term “authority” used in Article 226, in the context,
must receive a liberal meaning unlike the term in Article 12.
Article 12 is relevant only for the purpose of enforcement of
fundamental rights under Article 32. Article 226 confers
power on the High Courts to issue writs for enforcement of
the fundamental rights as well as non-fundamental rights. The
words “Any parson or authority” used in Article 226 are.
therefore, not to be confined only to statutory authorities and
instrumentalities of the State. They may cover any other
person or body performing public duty. The form of the body
concerned is not very 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,
21. …..
22. …..
14…..
15. It was observed that the scope of mandamus is
determined by the nature of the duty to be enforced rather
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LPA Nos.220 of 2002 & 313 of 2002 Page 18 of 32
than the identity of the authority against whom it is sought
though the courts always retain the discretion to withhold the
remedy where it would not be in the interest of justice to
grant it. It was held that a body is performing a public
function when it seeks to achieve some collective benefit for
the public or a section thereof and is accepted by the public or
a section thereof 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
though there cannot be any general definition of „public
authority‟ or „public function‟ and the facts of each case
would decide the point. Once again it would be useful to
extract the relevant paragraphs:
“10. The Writ of Mandamus lies to secure the performance of
a public or a statutory duty. The prerogative remedy of
mandamus has long provided the normal means of enforcing
the performance of public duties by public authorities.
Originally, the writ of mandamus was merely an
administrative order from the sovereign to subordinates. In
England, in 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 Press) at page 621, the following
opinion is expressed:
“A distinction which needs to be clarified is that between public
duties enforceable by mandamus, which are usually statutory, and
duties arising merely from contract. Contractual duties are
enforceable as matters of private law by the ordinary contractual
remedies, such as damages, injunction, specific performance and
declaration. They are not enforceable by mandamus, which in the
first place is confined to public duties and secondly is not granted
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LPA Nos.220 of 2002 & 313 of 2002 Page 19 of 32
where there are other adequate remedies. This difference is brought
out by the relief granted in cases of ultra vires. If for example a
minister or a licensing authority acts contrary to the principles of
natural justice, certiorari and mandamus are standard remedies. But
if a trade union disciplinary committee acts in the same way, these
remedies are inapplicable: the rights of its members depend upon
their contract of membership, and are to be protected by
declaration and injunction, which accordingly are the remedies
employed in such cases.”
11. Judicial review is designed to prevent the cases of abuse of
power and neglect of duty by public authorities. However, under
our Constitution, Article 226 is couched in such a way that a writ
of mandamus could be issued even against a private authority.
However, such private authority must be discharging a public
function and that the decision sought to be corrected or enforced
must be in discharge of a public function. The role of the State
expanded enormously and attempts have been made to create
various agencies to perform the governmental functions. Several
corporations and companies have also been formed by the
government to run industries and to carry on trading activities.
These have come to be known as Public Sector Undertakings.
However, in the interpretation given to Article 12 of the
Constitution, this Court took the view that many of these
companies and corporations could come within the sweep of
Article 12 of the Constitution. At the same time, there are private
bodies also which may be discharging public functions. It is
difficult to draw a line between the public functions and private
functions when it is being discharged by a purely private authority.
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. 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 activities to ensure compliance with proper
standards. For all these purposes, a range of legal and
administrative techniques may be deployed, including: rule-
making, adjudication (and other forms of dispute resolution);
inspection; and licensing.
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LPA Nos.220 of 2002 & 313 of 2002 Page 20 of 32
Public functions need not be the exclusive domain of the state.
Charities, self-regulatory organizations and other nominally private
institutions (such as universities, the Stock Exchange, Lloyd’s of
London, churches) may in reality also perform some types of
public function. As Sir John Donaldson M.R. urged, it is important
for the courts to “recognize the realities of executive power” and
not allow “their vision to be clouded by the subtlety and sometimes
complexity of the way in which it can be exerted”. Non-
governmental bodies such as these are just as capable of abusing
their powers as is government.”
12. In Regina v. Panel on Take-over and Merges, Ex parte Datafin
Plc. and Anr. (1987) 1 Queen’s Bench Division 815, a question
arose whether the Panel of Take-over and Mergers had acted in
concert with other parties in breach of the City Code on Take-over
and Mergers. The panel dismissed the complaint of the applicants.
Though the Panel on Take-over and Mergers was purely a private
body, the Court of Appeal held that the supervisory jurisdiction of
the High Court was adaptable and could be extended to any body
which performed or operated as an integral part of a system which
performed public law duties, which was supported by public law
sanctions and which was under an obligation to act judicially, but
whose source of power was not simply the consent of those over
whom it exercised that power; that although the panel purported to
be part of a system of self-regulation and to derive its powers
solely from the consent of those whom its decisions affected, it
was in fact operating as an integral part of a governmental
framework for the regulation of financial activity in the City of
London, was supported by a periphery of statutory powers and
penalties, and was under a duty in exercising what amounted to
public powers to act judicially; that, therefore, the court had
jurisdiction to review the panel’s decision to dismiss the applicants’
complaint; but that since, on the facts, there were no grounds for
interfering with the panel’s decision, the court would decline to
intervene.
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 :
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LPA Nos.220 of 2002 & 313 of 2002 Page 21 of 32
“…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 one or other of the consequences
mentioned in the preceding paragraph. The ultimate source of the
decision-making power is nearly always nowadays a statute or
subordinate legislation made under the statute; but in the absence
of any statute regulating the subject matter of the decision the
source of the decision-making power may still be the common law
itself, i.e., that part of the common law that is given by lawyers the
label of ‘the prerogative.’ Where this is the source of decision-
making power, the power is confined to executive officers of
central as distinct from local government and in constitutional
practice is generally exercised by those holding ministerial rank”
15. It is also pertinent to refer to Sir John Donaldson M.R. in that
Take-Over Panel case :
“In all the reports it is possible to find enumerations of factors
giving rise to the jurisdiction, essential or as being exclusive of
other factors. Possibly the only essential elements are what can be
described as a public element, which can take many different
forms, and the exclusion from the jurisdiction of bodies whose sole
source of power is a consensual submission to is jurisdiction.”
16. The above guidelines and principles applied by English courts
cannot be fully applied to Indian conditions when exercising
jurisdiction under Article 226 or 32 of the Constitution. As already
stated, the power of the High Courts under Article 226 is very wide
and these powers have to be exercised by applying the
constitutional provisions and judicial guidelines and violation, if
any, of the fundamental rights guaranteed in Part III of the
Constitution. In the matter of employment of workers by private
bodies on the basis of contracts entered into between them, the
courts had been reluctant to exercise the powers of judicial review
and whenever the powers were exercised as against private
employers, it was solely done based on public law element
involved therein.
17. This view was expressly stated by this Court in various
decisions and one of the earliest decisions is The Praga Tools
Corporation v. Shri C.A. Imanual and Ors.. In this case, the
appellant company was a company incorporated under the Indian
Companies Act and at the material time the Union Government
and the Government of Andhra Pradesh held 56 per cent and 32
per cent of its shares respectively. Respondent workmen 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
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LPA Nos.220 of 2002 & 313 of 2002 Page 22 of 32
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 public duty. It is, however, not necessary that the person or the
authority on whom the statutory duty is imposed need be a public
official or an official body. A mandamus can issue, for instance, to
an official of a society to compel him to carry out the terms of the
statute under or by which the society is constituted or governed
and also to companies or corporations to carry out duties placed on
them by the statutes authorizing their undertakings. A mandamus
would also lie against a company constituted by a statute for the
purpose of fulfilling public responsibilities [Cf. Halsbury’s Laws of
England (3rd Ed.), Vol.II p 52 and onwards].
The company being a non-statutory body and one incorporated
under the Companies Act there was neither a statutory nor a public
duty imposed on it by a statute in respect of which enforcement
could be sought by means of a mandamus, nor was there in its
workmen any corresponding legal right for enforcement of any
such statutory or public duty. The High Court, therefore, was right
in holding that no writ petition for a mandamus or an order in the
nature of mandamus could lie against the company.”
18. It was also observed that when the High Court had held that the
writ petition was not maintainable, no relief of a declaration as to
invalidity of an impugned agreement between the company and its
employees could be granted and that the High Court committed an
error in granting such a declaration.
19. In VST Industries Limited v. VST Industries Workers’ Union
and Anr. (2001) 1 SCC 298, the very same question came up for
consideration. The appellant-company was engaged in the
manufacture and sale of cigarettes. A petition was filed by the first
respondent under Article 226 of the Constitution seeking a writ of
mandamus to treat the members of the respondent Union, who
were employees working in the canteen of the appellant’s factory,
as employees of the appellant and for grant of monetary and other
consequential benefits. Speaking for the Bench, Rajendra Babu, J.,
(as he then was), held as follows :
“7. In de Smith, Woolf and Jowell’s Judicial Review of
Administrative Action, 5th Edn., it is noticed that not all the
activities of the private bodies are subject to private law, e.g., the
activities by private bodies may be governed by the standards of
public when its decisions are subject to duties conferred by statute
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LPA Nos.220 of 2002 & 313 of 2002 Page 23 of 32
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 course of
their public functions are the subject matter of judicial review. In
the following two situations judicial review will not normally be
appropriate even though the body may be performing a public
function
(a) Where some other branch of the law more appropriately
governs the dispute between the parties. In such a case, that branch
of the law and its remedies should and normally will be applied;
and
(b) Where there is a contract between the litigants. In such a case
the express or implied terms of the agreement should normally
govern the matter. This reflects the normal approach of English
law, namely, that the terms of a contract will normally govern the
transaction, or other relationship between the parties, rather than
the general law. Thus, where a special method of resolving
disputes (such as arbitration or resolution by private or domestic
tribunals) has been agreed upon by the parties (expressly or by
necessary implication), that regime, and not judicial review, will
normally govern the dispute.
20. Applying the above principles, this Court held that the High
Court rightly held that it had no jurisdiction.
21. Another decision on the same subject is General Manager,
Kisan Sahkar Chini Mills Limited, Sultanpur, UP v.Satrughan
Nishad and Ors.. The appellant was a cooperative society and was
engaged in the manufacture of sugar. The respondents were the
workers of the appellant and they filed various writ petitions
contending that they had to be treated as permanent workmen. The
appellant challenged the maintainability of those writ petitions and
applying the principles enunciated in VST Industries’ case (supra),
it was held by this Court that the High Court had no jurisdiction to
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LPA Nos.220 of 2002 & 313 of 2002 Page 24 of 32
entertain an application under Article 226 of the Constitution as the
mill was engaged in the manufacture and sale of sugar which
would not involve any public function.
22. In Federal Bank Limited v. Sagar Thomas and Ors. the
respondent was working as a Branch Manager of the appellant
Bank. He was suspended and there was a disciplinary enquiry
wherein he was found guilty and dismissed from service. The
respondent challenged his dismissal by filing a writ petition. The
learned Single Judge held that the Federal Bank was performing a
public duty and as such it fell within the definition of “other
authorities” under Article 12 of the Constitution. The appellant
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 is
wrongful exercise of power or a refusal to perform duties. This
writ is admirably equipped to serve as a judicial control over
administrative actions. This writ could also be issued against any
private body or person, specially in view of the words 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. If the
private body is discharging a public function and the denial of any
right is in connection with the public duty imposed on such body,
the 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 remedies. According
to Halsbury’s Laws of England 3rd ed. Vol. 30, page-682,
“a public authority is a body not necessarily a county council,
municipal corporation or other local authority which has public
statutory duties to perform and which perform the duties and
carries out its transactions for the benefit of the public and not for
private profit.”
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LPA Nos.220 of 2002 & 313 of 2002 Page 25 of 32
There cannot be any general definition of public authority or public
action. The facts of each case decide the point.
30. A contract would not become statutory simply because it is for
construction of a public utility and it has been awarded by a
statutory body. But nevertheless it may be noticed that the
Government or Government authorities at all levels is increasingly
employing contractual techniques to achieve its regulatory aims. It
cannot be said that the exercise of those powers are free from the
zone of judicial review and that there would be no limits to the
exercise of such powers, but in normal circumstances, judicial
review principles cannot be used to enforce the contractual
obligations. When that contractual power is being used for public
purpose, it is certainly amenable to judicial review. The power
must be used for lawful purposes and not unreasonably.
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 a
State within the meaning of Article 12 of the Constitution and 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.
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LPA Nos.220 of 2002 & 313 of 2002 Page 26 of 32
30. The factual aspects emphasized by respondent No.1 with supporting
documents are very crucial to determine the public element in the
functioning of the Centre. This is in the context of the triple
condition laid down in Binny Limited & Anr. case (supra) as also the
observations made in K. Krishnamacharyulu & Ors. case (supra). No
doubt learned counsel for the appellant sought to emphasize the
research element of the work done at the Centre but it cannot be lost
sight of that the Centre is carrying on regular higher education work
in terms of an Agreement with Manipal Academy of Higher
Education, a Deemed University, for providing Doctoral and Post
Doctoral training to students. The Centre has obtained exemptions
under the Income Tax Act claiming the status as an educational
institution. The Government notifications have included the Centre
as public institution in the Provident Fund Act and for obtaining
support of Ministry of Science & Technology, the Centre has been
recognized as a Scientific & Industrial Research Organisation. The
allotment of land by itself could not have conferred the Centre with
the public element function but this factor cannot be obliterated from
the factors which are to be taken into account for determining the
question of the public element of the function.
31. It is not even disputed that ICSSR Grant Rules apply to the Centre.
Funds are being received by the Centre. The excuse given is that the
funds themselves are not sufficient to pay the salary bills. In our
view, this is no answer. This is specifically so in view of what has
been explained by learned counsel for respondent No.1 while
referring to the financial figures for the year 2006-2007 showing
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LPA Nos.220 of 2002 & 313 of 2002 Page 27 of 32
large part of recurring Government aid and the funds received from
testing and examination work. We may also note that on the land
made available at concessional rate structure has been built and part
of the premises has been let out to the National Knowledge
Commission from which rent of Rs.42.00 lakh was received for the
year in question. Thus, the land is not only being put to use for
activities of the Centre but the land obtained on concessional rates is
being utilized for a part of the structure to be rented out to earn
income towards the activities of the Centre. It cannot be said that the
Government has no role to play in the functioning of the Centre.
32. Respondent No.1 may be governed by his terms & conditions 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
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LPA Nos.220 of 2002 & 313 of 2002 Page 28 of 32
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 employees. There has to be no alteration/modification
in the emolument structure and service conditions without prior
approval of the Government. To fully appreciate this aspect we are
quoting the relevant extract of that letter, which is as under:
“The approval of the Government is subject to the following
conditions:
1. Revision of scales will be either in accordance with the
concerned State Gov. notification or the provision of Ministry of
Finance (Deptt. Of Expenditure) OM No.F.7934)E.III-A97 dated
the 2nd December, 1997. The revised scales of pay as incorporated
in part „A‟ of the First Schedule to the CCS (RP) Rules, 1997 will
only be admissible in the case of non-teaching employees and
UGC pay scales in the case of faculty posts. In cases where no
equivalence of pay scales is established either with the State or
Central Govt. pay scales, the scales, recruitment qualification etc.
will correspond to Central Gov. employees. Payment of the arrears
will be regulated in accordance with Para 3 of the above said OM.
2. The revised scales would be admissible to those employees
who opt for these in accordance with the Rules. Deduction on
account of PF & CPF, as the case may be, will be made on the
basis of the revised pay w.e.f. the date the employees opt to the
elect the revised pay scales.
3. Revision of pay scales would be admissible in respect of
such posts which have been created/upgraded only after obtaining
Govt. of India‟s approval/ICSSR.
4. The pay scales and allowances (DA, HRA, CCA) of
academic and non-academic employees of the Research Institutes
and identical to those of the UGC in respect of the faculty and
State/Central Govt. employees in respect of non-academic
employees prior to the revision. The revised pay scales will not be
extended to any category of employees where the pre-revised pay
scales are not identical to UGC pay scales in respect of the faculty
and State/Central Govt. employees in respect of non-academic
posts. Such cases, if any, will be referred by the ICSSR to this
Department.
5. The service conditions of the employees of the
Institutes/Regional Centres specially those relating to hours of
work, payment of OTA, medical allowances, etc. should also be
identical to those of State/Central Govt. employees.
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LPA Nos.220 of 2002 & 313 of 2002 Page 29 of 32
6. The pay scales and allowances of the academic posts,
qualifications recruitment rules etc. should be as per the 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 Institutes will be carried out by CAG
for implementation of pay revision to ensure that everything was
done in conformity with UGC/Govt. Guidelines and the audit
report will be submitted to the Government through ICSSR.
13. The research institutes shall not alter/modify the
emolument structure and service conditions, scales of pay of the
post without the prior approval of the government.
While releasing the grants to respective institutions, ICSSR shall
furnish to the Govt. of India the schedule of pay scales (pre-
revision and post-revision), number of posts, designations,
recruitment qualifications, etc.”
34. There are, in fact, numerous such documents on record seeking
approval of ICSSR in respect of matters of employment and the
extraction is by way of an illustration as we have no doubt in our
mind that matters relating to employment and the terms & conditions
thereof are governed by directions of the Government of India and
ICSSR which in turn governs the Centre.
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LPA Nos.220 of 2002 & 313 of 2002 Page 30 of 32
35. Since the inception itself Mr. T.A. Pai had written to the then Finance
Minister on 20.3.1976 while requesting for aid in the following
terms:
“….The Centre is supported by State Governments and public
sector undertakings and through research grants from appropriate
official agencies. As a person who has always encouraged
systematic studies of policy nature, you will no doubt appreciate
the kind of work done by the CPR and the need to encourage such
efforts so that the Government and the people could weigh the
various policy options.
The reason why I am writing this letter to you is that we are
now engaged in building a small corpus for the CPR. Towards this
purpose, especially to enable the Centre to meet its capital
expenditure etc., I am making you this request for an ad hoc non-
recurring grant of rupees five lakhs only. I have no doubt you will
appreciate that this is but a small and one time grant with no
recurring liabilities to the Government of India. I trust you will be
kind enough to sanction this amount and instruct the appropriate
agency for its release.”
36. Even in respect of construction of building and renovation thereof
non-recurring grant was sought. It, thus, hardly lies in the mouth of
the representatives of the Centre to claim exclusion from the Court‟s
scrutiny while exercising jurisdiction under Article 226 of the
Constitution of India.
37. We are, thus, unequivocally of the view that in matters of service
conditions including of appointment and termination and grievances
arising therefrom the scrutiny under Article 226 of the Constitution
of India cannot be excluded having a public element and thus the
learned single Judge was right in coming to the conclusion that the
matter could be examined under Article 226 of the Constitution of
India.
38. We also find that having found that the action of respondent No.5,
Dr. V.A. Pai Panandiker left much to be desired, the imposition of
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LPA Nos.220 of 2002 & 313 of 2002 Page 31 of 32
personal costs on him can hardly be said to be erroneous or calling
for interference. We may, however, note that even these costs have
not been paid though no stay was granted in that behalf.
39. The appeals are, thus, meritless except to the extent of what we have
observed insofar as the aspect of Article 12 of the Constitution of
India examined in the impugned judgement.
40. The appeals are accordingly dismissed with costs of Rs.10,000.00
each.
SANJAY KISHAN KAUL, J.
MARCH 12, 2010 MOOL CHAND GARG, J. b'nesh
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LPA Nos.220 of 2002 & 313 of 2002 Page 32 of 32