TaxTMI 
TaxTMI 
1989 (4) TMI 292
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.... 1949. From June 15, 1973 onwards, the college had permanent affiliation under the said Act as amended by Gujarat Act No. VI of 1973. The University teachers and those employed in the affiliated colleges were paid in the pay scale recommended by the University Grants Commission. At one stage, there was some dispute between the University Area Teachers Association and the University about the implementation of certain pay scales. That dispute, by agreement of parties, was referred to the Chancellor of the University for decision. On June 12, 1970, the Chancellor gave his award in the following terms: "(1) That the revised pay scales as applicable to teachers who joined before April 1, 1966, should similarly be applicable to those who joined after April 1, 1966. and they be continued even after April 1, 1971. (2) That these pay scales be exclusive of dearness allowance. Therefore, fixing the pay of the teachers who joined after April 1, 1966, no petition of existing dearness allowance would be merged. However, with effect from April 1, 1971 in respect of both the categories of teachers i.e. Pre-1966 and Post-1966 teachers, dearness allowance was to be merged with the salary. (3) ....
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....ce in the service. They seem to have made a tryst with the destiny and accepted the closure of the college. They demanded only the arrears of salary, provident fund, gratuity and the closure compensation which were legitimately due to them. The trust, however, resisted the writ petitions on every conceivable ground. The objections raised by the trust may be summarised as follows: (i) The trust is not a statutory body and is not subject to the writ jurisdiction of the High Court; (ii) the Resolution of the University directing payment to teachers in the revised pay scales is not binding on the trust; (iii) The University has no power to burden the trust with additional financial liability by retrospectively revising the pay scales; (iv) the claim for gratuity by retrenched teachers is untenable. It is payable only to teachers retiring, resigning, or dying and not to those removed on account of closure of the college; and (v) Ordinance 120E prescribing closure compensation is ultra vires of the powers of the syndicate. It is at any rate not binding on the trust, since it was enacted prior to affiliation of the college. The High Court rejected all these submissions, and accepted the ....
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....e only concerned with the liability of the management of the college towards the employees. Under the relationship of master and servant, the management is primarily responsible to pay salary and other benefits to the employees. The management cannot say that unless and until the State compensates, it will not make full payment to the staff. We cannot accept such a contention. Two questions, however, remain for consideration: (i) The liability of the appellants to pay compensation under Ordinance 120E and (ii) The maintainability of the writ petition for mandamus as against the management of the college. The first question presents no problem since we do not find any sustainable argument. The power of the Syndicate to enact the Ordinance is not in doubt or dispute. What is, however, argued is that the Ordinance is not binding on the management since it was enacted before the college was affiliated to the University. This appears to be a desperate contention overlooking the antecedent event. The 'counsel overlooks the fact that the college had temporary affiliation even earlier to the Ordinance. That apart, the benefits under the Ordinance shall be given when the college is closed. ....
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.... go thus far. There is no plea for specific performance of contractual service. The respondents are not seeking a declaration that they be continued in service. They are not asking for mandamus to put them back into the college. They are claiming only the terminal benefits and arrears of salary 'payable to them. The question is whether the trust can be compelled to pay by a writ of mandamus? 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 clo....
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....ing. 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." (See--The Closing Chapter--by Rt. Hon Lord Denning p. 122). 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 statue. 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 "any person or authority". It can be issued "for the enforcement of any of the fundamental rights and for any other purpose". Article 226 reads: "226. Power of High Courts to issue certain writs (1) Notwithstanding anything in Art. 32, every High Co....
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....ng 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. In Praga Tools Corporation v. Shri C.A. Imanual & Ors., [1969] 3 SCR 773, 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 under- takings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public respons....