TaxTMI 
TaxTMI 
1997 (5) TMI 438
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....respondents-- the Christian Medical College, Ludhiana and its Principal. The respondents appeared and raised a preliminary objection regarding the maintainability of the writ petition. The Bench, consequently, directed that "the matter be placed before Hon'ble the Chief Justice for consituting a larger Bench at an early date." It was placed before a Bench of three Judges. Keeping in view the fact that the issue had been referred to a Full Bench of five Judges in Dr. Midha's case and the correctness of the view taken by the Full Bench in Gurpreet Singh's case was to be examined, it was directed that this matter be placed before a Bench of five Judges. Consequently, the case has been placed before this Bench. The facts may be briefly noticed. 2. The petitioner Miss Ravneet Kaur, ostensibly a Sikh, claims to be convert to Christianity. She applied for admission to the MBBS course at the Christian Medical College, Ludhiana against one of the seats reserved for the "candidates who are Christians, Indian Nationals and officially sponsored by a Church or a Mission. ....." It is alleged that the application was sponsored by the Bishop of Amritsar vide his letter dated June 1....
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....ospitals. For this purpose, a Christian applicant having Indian Nationality has to "seek official sponsorship by a Church or Mission represented on the governing body of the Christian Medical College of Ludhiana Society." The application must obtain a letter stating that "the candidate is sponsored for MBBS admission for the year 1996." This letter of sponsorship had to be submitted along with the application form to the Registrar of the College on or before June 15, 1996 failing which the candidature was liable to be rejected. The petitioner did not submits "the official sponsorship letter as required by 15-6-1996 even up to 29-7-1996 i.e. the date of scrutiny of documents/ certificates and testimonials etc." She had only submitted "a commending letter instead of sponsorship letter." Her name "did not figure in the list of candidates sponsored by the Diocese of Amritsar....." On June 20, 1996, she was asked to produce "her confirmation letter/certificate which is a pre-requisite document of the sponsorship letter." Simultaneously, the College also wrote "a letter dated 20-6-1996 to the Father Yaqub Masih, Methodist Church to confirm whether the petitioner is confirmed or not." The....
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..... It has also been stated that all the seats in the College had already been filled up and none of the candidates sponsored by the Diocese of Amritsar was admitted as they had failed to secure the qualifying percentage of marks in the written lest. 5. The petitioner has disputed the claim made by the respondents. She alleges that they have made an attempt to change the defence which "could be done only by amending the written statement filed in the writ petition.....". On merits, the petitioner has submitted that she was "baptised as (a) Christian on 1-1-1988 and as such, by the date of her application for admission to the College for the MBBS course, she had been (a) Christian for much more than five years." She has produced a copy of the Baptism Certificate as Annexure P-A. She admits that the format of the sponsorship letter has been prescribed by the College. It is at page 7 of the guidelines. However, she had "staked her claim for admission to the MBBS course" on the basis of the letter dated June 12, 1996 a copy of which has been produced as Annexure P-1 with the writ petition. She claims to be an exceptionally bright candidate who had secured 70.4% marks in the test. She ....
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....been comparatively greater. In view of the importance of health to the community, so far as medical education is concerned, stringent measures have been laid down by an Act of Parliament. 10. The Parliament enacted the Indian Medical Council Act, 1956 to provide for the constitution of the Medical Council of India, the maintenance of a Medical Register and the matters connected therewith. Section 10-A of the Act inter alia provides that "no person shall establish a medical college..... except with the previous permission of the Central Government obtained in accordance with the provisions....." Even the existing medical colleges cannot "open a new or higher course of study or training..... or increase its admission capacity in any course of study or training....." without the prior approval of the Central Government Rigorous procedure for obtaining permission from the Central Government has been laid down. It is inter alia provided that "every person or medical college shall for the purpose of obtaining permission..... submit to the Central Government a scheme....." in the prescribed form which shall be referred to the Medical Council for its recommendations. The Council shall i....
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.... of study and examination to be undergone or that the staff, equipment, accommodation, training and other facilities for instruction provided in medical institution or University or College "do not conform to the standards prescribed by the Council" the Central Government can on the recommendation of the Council and after such further enquiry as it may consider necessary order withdrawal of recognition of the qualification or the institution. Under Section 19-A, the Council is competent to prescribe the minimum standards of medical education for granting recognised medical qualifications. The Council can also prescribe standards of professional conduct and etiquette and a code of ethics for medical practitioners. The Act provides for maintenance of registers, in the prescribed manner, of medical practitioners to be known as the Indian Medical Register and the State Medical Register which shall include the names of persons who possess the recognised medical qualifications and are entitled to "practise as a medical practitioner in any part of India..... 11. The Ist Schedule to the Act contains the list of recognised medical qualifications granted by different Universities and Medi....
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....the conditions of service and conduct of teachers." The University also prescribed the academic qualifications and teaching experience etc. for appointment to the teaching posts in the Institution. 15. A combined reading of the provisions of the Indian Medical Council Act, 1956, the Panjab University Act, 1947 and the regulations/rules framed thereunder indicates a significant degree of control over the Institution by the Central Government, the Medical Council of India and the University. This control is virtually all pervasive. Every field of activity viz. the course of study, the recruitment of the staff, the facilities for providing education and training and even the conditions of service of the members of the staff are regulated. 16. Another fact which may be mentioned here is that during the later part of this century, there have been rapid advances in Biotechnology. Sophisticated equipment is now available for diagnosis as well as treatment. The parts of the body which were hither-to-fore considered as blind lanes can now be seen and probed with the help of endoscopes. Facilities of computerised tomography and ultrasound equipment enable the medical men to see almost ....
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....ctories and right to freedom of religion etc. Article 29(1) confers the fundamental right on every section of citizens to conserve their distinct language, script and culture. In exercise of this right, any section of citizens can establish and maintain an educational institution as such a right "is a necessary concomitant to the right to conserve its distinctive language, script or culture....." (see Kerala Education Bill-- AIR 1958 SC 956 Para 20 at Page 976. Clause 2 of Article 29 debars any educational institution receiving aid out of the State funds from denying admission on grounds "only of religion, race, caste, language....." In other words, the provision confers a fundamental right on every citizen not to be discriminated against in the matter of admission even by a private Educational Institution receiving financial aid from the Government on the grounds of religion etc. Article 30 embodies a special provision in respect of the religious and linguistic minorities. What is implicit in Article 29(1) is made explicit in Article 30(1). Having conferred these rights, the Constitution has also provided remedies under Articles 32 and 226. An aggrieved person has been given th....
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....College, however, contended that in spite of the wide language of Article 226, a writ can issue only against the State or other authorities as contemplated under Article 12 of the Constitution. He relied on the decision of a Division Bench of Madras High Court In re; Gadea Nagabhushana Reddi AIR 1951 Mad 249, to point out that a writ of prohibition cannot issue against a political party or that Article 226 should not be construed so as to replace the ordinary remedy available to a litigant under the general law of" the land. He also referred to a Division Bench decision of the Madras High Court in I.T. Corporation v. State of Madras, AIR 1954 Mad 549, and a decision of the Delhi High Court in National Seeds Corpn. Employees Union v. National Seeds Corporation, AIR 1972 Delhi 292, to point out that "it cannot be said that now under Article 226, a writ in the nature of prohibition could issue even to a private person prohibiting him from doing some act which is likely to injure an applicant." Learned counsel also referred to the judgment of their Lordships of the Supreme Court in Election Commission of India v. S.V.S. Rao 1953 SCR 1144 : (AIR 1953 SC 210) to contend that the purpose ....
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....control of executive action." Why the term 'prerogative writs'? In paragraph 14-008, it has been pointed out that "It is in a case decided by Montagu and three Brethren not noted for their independence of the Crown that Habeas Corpus is for the first time reported as being called a 'prerogative writ'. In Montagu's words, it is a prerogative writ, which concerns the King's justice to be administered to his subjects; for the King ought to have an account why any of his subjects are imprisoned." In paragraph 14-011, it has been stated-- "But it is easy enough to explain why Mansfield and Blackstone who were good King's men should have insisted on the prerogative character of Habeas Corpus. And if these were the qualities which in their eyes entitled Habeas Corpus to classification as a prerogative writ, they were shared in large measure by mandamus, 'a command issuing in the King's name from the Court of King's Bench' and 'a writ of most extensively remedial nature'. The writ of mandamus, moreover, expressly alleged a contempt of the crown consisting in the neglect of a public duty; and it was a writ of grace. The &....
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....Constitution Bench observed at Page 1738 that--"the power of the High Court under Article 226 of the Constitution is not limited to the issue of writs falling under particular groupings, such as the certiorari, mandamus etc. as these writs have been understood in England, but the power is general to issue any direction to the authorities viz. for enforcement of fundamental rights as well as for other purposes." 26. A few years later, in Dwarka Nath v. Income Tax Officer, AIR 1966 SC 81, it was held that (at Pp. 84 and 85 of AIR) :-- "Article 226 is couched in comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found. A wide language in describing the nature of the power, the purposes for which the person or authority against whom it can be exercised was designedly used by the Constitution. The High Court can issue writs in the nature of prerogative writs as understood in England but the scope of those writs also is widened by the use of the expression "nature" which expression does not equate the writs that can be issued in India with those in England but only draws an analogy from them. That apart, High Cou....
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....ng should conform to any rigid pattern or straight jacket formula as for example, in England, because they knew that in a country like India where there is so much of poverty, ignorance, illiteracy, deprivation and exploitation, any insistence on a rigid formula of proceeding for enforcement of a fundamental right would become self-defeating because it would place enforcement of fundamental rights beyond the reach of the common man and the entire remedy for enforcement of fundamental rights which the Constitution makers regarded as so precious and invaluable that they elevated it to the status of a fundamental right, would become a mere rope of sand so far as the large masses of the people in this country are concerned..... (Pr. 13) .....It will be seen that the power conferred by Clause (2) of Article 32 is in the widest terms. It is not confined to issuing the high prerogative writs of habeas corpus, mandamus, prohibition, certiorari and quo warranto, which are hedged in by strict conditions differing from one writ to another and which to quote the words spoken by Lord Atkin in United Australia Ltd. v. Barclays Bank Ltd. (1941) AC 1, in another context often "stand in th....
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....mt. Radhikabai, AIR 1986 SC 1272, their Lordships held that the power under Article 226 of the Constitution was wider than the preconstitution power of the Chartered High Courts to issue prerogative writs. 30. The above decisions clearly show that the powers of the High Courts under Article 226 are not confined to the issue of prerogative writs as understood in England. The powers are much wider than those of the Court of King's Bench. These are not subject to the procedural restrictions being followed in a small country like England. 31. Mr. Patwalia placed strong reliance on the decision of the Full Bench of this Court in Gurpreet Singh's case to contend that a writ petition is not maintainable against a private educational institution. The Full Bench had concluded as under : "(i) that, on the specific language of Articles 15 and 29 of the Constitution of India, on principle; and on authoritative precedent there is no fundamental right of equality, conferred on all citizens, for admission on merit alone, in privately owned and managed educational institutions receiving aid out of State funds; (ii) that, in accordance with the rule laid down in P....
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.... major role in the control, maintenance and working of educational institutions. The aided institutions like Government Institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party." Still further, in para 19, it was observed that :-- '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 ....
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....sion into higher courses of study. The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private educational institution can survive or subsist without recognition and/or affiliation. The bodies which grant' recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory -- in the interest of general public -- upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students, recruitment of employees and their conditions of service. Since the recognising/affiliating authority is the State it is under an obligation to impose such conditions as part of its duty enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well. Affiliation/recognition i....
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.... of admission on merit even against a private medical college affiliated to a University. This right "without a remedy will become a mere adornment..... as writ in water." It is not so. 40. Another thing which deserves mention is that even in England, there has been a clear change. It has been recognised that powers of court can no longer be ousted simply by invoking the word "prerogative". In 1949, Lord Denning wrote that "just as the pick and shovel is no longer suitable for the winning of coal so also the procedure(s) of mandamus (and) certiorari.....are not suitable for the winning of freedom in the new age. "According to Prof. De Smith, "Mandamus and certiorari have, in point of fact, proved to be surprisingly adaptable to modern needs. Though modest, the reforms made to the rules of the Supreme Court in 1977 (and put on a statutory basis in 1981) nevertheless acted as a catalyst to very significant judicial innovation in the field of substantive law." Shall we in spite of these advances in the realm of law still continue to follow the archaic formulations given in English decisions? 41. In Inland Revenue Commissioners v. National Federation of Small and Self-employed Bu....
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.... of the Full Bench have cited Seervai to maintain that the formulation of Lord Justice Atkin "still holds the field". With respect, the view taken by their Lordships does not appear to be correct. Seervai in para 16.94 (Constitutional Law of India, Third Edition --1984) has referred to the above observations and remarked that even though this passage has been quoted with approval by many Indian and English decisions, "the conclusions drawn from Lord Atkin's formulations of the scope of certiorari that it lay only to quash proceedings where there was a duty to act judicially, is no longer fully accurate, for certiorari has been granted in cases of administrative nets if there was a duty to act 'fairly'. In the Fifth Edition of "Judicial Review of Administrative Action" by Prof. De Smith, at page 1011, it has been observed as under :-- A-020 "Till the 1960's it was generally assumed that certiorari and prohibition could not issue to a body of persons acting in a purely administrative capacity, though in fact the orders had often issued in respect of acts and decisions bearing only a remote resemblance to the judicial. This assumption is now obsolete and, in a....
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....th varying success, to draw subtle distinctions between decisions that were quasi-judicial and those that were' administrative only. But the relevance of arguments of this kind was destroyed by the decision of this House in Ridge v. Baldwin (1963) 2 All ER 66 : (1964) AC 40, where again the leading speech was given by Lord Reid., Wherever any person or body of persons has authority conferred by legislation to make decisions of the kind I have described, it is amenable to the remedy of an order to quash its decision either for error of law in reaching it or for failure to act fairly towards the person who will be adversely affected by the decision by failing to observe either one or other of the two fundamental rights accorded to him by the rules of natural justice or fairness, viz. to have afforded to him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it, and to the absence of personal bias against him on the part of the person by whom the decision fails to be made. In Ridge v. Baldwin (1963) 2 All ER 66 : (1964) AC 40 at 72, it is interesting to observe that Lord Reid said 'We do not have a developed system....
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....er date of birth. But the decision of the State could be based upon the result of an enquiry in manner consonant with the basic concept of justice. An order by the State to prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fair-play. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is, however, under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom an enquiry is held must be informed of the case he is called thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constituti....
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....it was observed as under :-- ''I do not agree that the source of the power is the sole test whether a body is subject to judicial review, nor do I so read Lord Diplock's speech. Of course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review : see R. v. Disputes Committee of the National Joint Council for the Craft of Dental Technicians : ex p. Neate (1953) 1 All ER 327 (1953) 1 QB 704. But in between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may, as counsel for the applicants submitted, be sufficient to bring the body within the reach of judicial review. It may be said that to refer to public law in th....
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.... (iii) The power under Article 226 of the Constitution is not confined to the enforcement of fundamental rights like the power under Article 32. Still further, the High Courts can issue writs, orders or directions even to any person or authority discharging a public duty for enforcement of the fundamental rights or for any other purpose. (iv) The words "any person or authority" used in Article 226 do not mean only State as defined in Article 12 or statutory authorities. These cover any person or body performing a public duty. (v) In view of the importance of 'health' to the Community, institutions providing medical education form a distinct class. These institutions perform a public duty and supplement the State's effort. By their affiliation to a University or any other statutory examining body, they become partners with the State. They are, thus, subject to the restrictions contained in Part III. They are bound to act in conformity with the provisions of the Indian Medical Council Act, 1956 and the rules/regulations framed by the appropriate University/body. Whenever they act unfairly, arbitrarily or violate the prohibitions contained in Part III of....