TaxTMI 
TaxTMI 
2019 (2) TMI 2110
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....P. and others, 2017 (7) ADJ 112 (DB) (Anjani Kumar Srivastava case) needs to be revisited. Relevant portion of the referring order reads thus: "In my opinion, since the judgment of Ramesh Ahluwalia (supra) clearly stipulates that even a purely private body where the State has no control over its internal affairs would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution if it discharges a public function or public duty, the judgment of the Full Bench of this Court in M.K. Gandhi as well as the Division Bench judgment in Anjani Kumar Srivastava needs to be revisited. It is, therefore, directed that the records of this case be placed before the Hon'ble Chief Justice for referring the matter to the Larger Bench in the light of the judgment of the Supreme Court in the case of Ramesh Ahluwalia." 2. We have carefully gone through the pleadings of the writ petition with the assistance of learned counsel for the parties and the referring order. In our opinion the following questions require to be answered: (i) whether private institutions imparting education perform public duty, a State function, making them amenable to judicial review under Ar....
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.... larger Bench and the larger Bench after hearing the parties, held that no writ will lie against the private school as it is not a 'State' within the meaning of Article 12 of the Constitution of India. Having held that the writ petition is not maintainable against the private body, still, they directed the CBSE to take action, as mentioned above. With great respect to the Full Bench of the High Court, we fail to understand the direction given by the Allahabad High Court. In our opinion, the direction given by the Allahabad High Court to the CBSE to totally misconceived and uncalled for. When the Allahabad High Court has already held that the DPS School is within the meaning of Article 12 of the Constitution of India and the writ petition is not maintainable, there was no necessity for giving a direction to the CBSE which virtually amounts to granting a declaration in favour of those teachers whose services have been terminated. We fail to appreciate the view taken by the Allahabad High Court by unnecessarily complicating the issue by involving the CBSE for a private dispute between the teachers and the DPS. The Allahabad High Court should have stop short of holding that the....
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....ment of India. Government and the Legislature of each of the States. All local or other authorities within the territory of India or under the control of the Government of India". 6. A perusal of the above Article shows that the definition of 'State' in the said Article includes the Government of India, Parliament of India, Government of the State, Legislatures of the States, local authorities as also 'other authorities'. 7. The importance of 'State' as contemplated under Article 12, is confined to the restrictions placed in Part-Ill of the Constitution upon the 'State' as against rights conferred by the said Part. Part III deals with the fundamental rights. The Article 13 prohibits the 'State' in taking away or abridging by law any fundamental right and any such law would be void. 8. Part-IV 'Directive Principle of State Policy' as envisaged under the Constitution, 'State' has been ascribed the same meaning as for the purposes of Part III (Article 36 of the Constitution of India). Thus, seen 'State' as contemplated under Article 12 of the Constitution, has significant role so far as rights conferred by Part III are....
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.... held to be 'State'. 11. In Rajasthan State Electricity Board v. Mohan Lal, 1967 AIR 1857 : 1967 SCR (3) 377, Constitution Bench held that the expression 'other authority' is wide enough to include within it every authority created by a statute, on which powers are conferred to carry out Governmental or quasi-Governmental functions and functioning within the territory of India or under the control of the Government of India, a departure from the restricted view taken earlier that statutory bodies like universities, were not 'other authorities' for the purpose of Article 12. 12. Within a decade, thereafter, the concept of 'State' had undergone drastic changes; with the State entering commercial space, acting through corporations, thus, making it an agency or instrumentality of the State. The public corporation, therefore, became a third arm of the Government which were often of a specialised and highly technical character. The employees of public corporation are not civil servants. In so far as public corporations fulfill public tasks on behalf of Government they are public authorities and were subject to control by the Government. The public corpor....
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....inst 'State' and also against 'any person or authority' and 'for any other purpose'. The limitation of action against the 'State' alone is not there under Article 226 of the Constitution. Thus, there is distinction between the powers to issue writs as between the Supreme Court and the High Court. The power to issue writ conferred upon the Supreme Court by Article 32 is for enforcement of Part III rights, but the power to issue writs as conferred under Article 226 upon the High Court is for enforcement of fundamental rights as against 'State' and non fundamental rights as against any 'other person or authority' or 'for any other purpose'. Thus, is the distinction between writ jurisdiction of the Supreme Court and the High Court, that even where the Supreme Court declines a Article 32 writ petition on the ground that the offending party/authority is not 'State' yet the High Court can interfere and issue writ under Article 226 in appropriate cases. 16. The term 'authority' used in Article 226, must receive a liberal meaning unlike the term 'authority' in Article 12. The words "any person or authority" use....
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....rds means 'enforcement of legal right' and the performance of any legal duty. (Refer: State of Orissa v. Madangopal Rungta, AIR 1952 SC 12; Fertilizer Corporation Kamgar Union v. Union of India, AIR 1981 SC 344 : Calcutta Gas Corporation v. State of West Bengal, AIR 1962 SC 1044) 19. Though the jurisdiction of the High Court is not confined to issuing prerogative writs, there is consensus of opinion, the Court will not permit this extraordinary jurisdiction to be converted into a suit. A declaration that a contract of service with the employer still subsisted will not be made in the sphere of an ordinary relationship of master and servant or contract of service, not protected by any statutory or constitutional provisions, because of the principle that Courts do not grant specific performance of contract of service. (Refer: Bool Chand v. Kurukshetra University, AIR 1968 SC 292 (296) : Praga Tools Corporation v. C.A. Immanuel, AIR 1969 SC 1306 : S.R. Tiwari v. District Board, Agra, AIR 1964 SC 1680) 20. Judicial Review forms the basic structure of the Constitution. It is inalienable. Public law remedy by way of judicial review is available under Articles 32 and 226 of the C....
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....charging those same responsibilities. 24. Governmental functions are multifacial. There cannot be a single test for defining public functions. Such functions are performed by a variety of means. Furthermore, even when public duties are expressly conferred by statute, the powers and duties do not thereunder limit the ambit of a statute, as there are instances when the conferment of powers involves the imposition of duty to exercise it, or to perform some other incidental act, such as obedience to the principles of natural justice. Many public duties are implied by the Courts rather than commanded by the legislature; some can even be said to be assumed voluntarily. There are, however, public duties which arise from sources other than a statute. 25. In Assembrook Exports Ltd. and another v. Export Credit Guarantee Corpn. of India Ltd. and others, AIR 1998 Cal 1, it has been held that public law remedy would be available when determination of a dispute involving public law character is necessary. The said decision has been affirmed by the Supreme Court in ABL International Ltd. and another v. Export Credit Guarantee Corporation of India Limited and others, JT 2003 (10) SC 300. [See: ....
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.... such action. Sometimes, it is difficult to distinguish between public law and private law." 29. The Supreme Court finally in para 32 held that though the private body need not be a 'State' within the meaning of Article 12, such body would be amenable to writ jurisdiction of the High Court under Article 226 provided there must be public law element in such action. "32. Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not 'State' within 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." 30. Whether a private company engaged in banking business performs public function. In other words does banking business as a scheduled bank involve public law element was considered by the Supreme Court in Federal Bank Ltd. v. Sagar Thomas and other, (2003) 10 SCC 733, the Co....
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....andamus 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. 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 l....
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.... public functions; (iii) an aggrieved party can seek public law remedy against the BCCI under Article 226 of the Constitution of India. 36. In G. Bassi Reddy v. International Crops Research Institute and other, 2003 (4) SCC 225, the Supreme Court observed that though it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. The Court accordingly held that the primary activity of research and training voluntarily undertaken by the respondent institution therein cannot be said to be a public duty as the institution does not owes the duty to the Indian public to provide research and training facilities. 37. In State of U.P. and another v. Johri Mal, 2004 (4) SCC 714, the Supreme Court held that for a public law remedy enforceable under Article 226, the action of a person or the authority need to fall in the realm of public law. The question is required to be determined in each case. "The legal right of an individual may be founded upon a contract or a statute or an instrument having the force of law. For a public law remedy enforceab....
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....s from primary to higher education. 42. The State neither has the funds and resources to setup educational institutions and in particular institutions imparting higher education. Imparting education is not a State monopoly, though it is one of the most important functions of the Indian State. The right to establish and administer educational institution is guaranteed under the Constitution to all citizens under Article 19(1)(g) and 26, and to the minorities specifically under Article 30. 43. Private educational institutions are a necessity in the present day context. Government is in no position to meet the demand of education at all levels--from primary education to higher education. Private educational institutions have a role to play. "194. The hard reality that emerges is that private educational institutions are a necessity in the present day context. It is not possible to do without them because the Governments are in no position to meet the demand - particularly in the sector of medical and technical education which call for substantial outlays. While education is one of the most important functions of the Indian State it has no monopoly therein. Private educational inst....
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.... alia, provides for effective discharge of public function, namely, education for the benefit of public is an authority within the meaning of Article 12 of the Constitution then as a necessary consequence, it becomes amenable to writ jurisdiction of High Court under Article 226 of the Constitution. The Court in SRM University held that the institution engaged in/and imparting higher studies to students is discharging 'public function' by imparting education. "This we say for the reasons that firstly, respondent No. 1 is engaged in imparting education in higher studies to students at large. Secondly, it is discharging "public function" by way of imparting education. Thirdly, it is notified as a "Deemed University" by the Central Government under Section 3 of the UGC Act. Fourthly, being a "Deemed University", all the provisions of the UGC Act are made applicable to respondent No. 1, which inter alia provides for effective discharge of the public function - namely education for the benefit of public. Fifthly, once respondent No. 1 is declared as "Deemed University" whose all functions and activities are governed by the UGC Act, alike other universities then it is an "author....
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....dustrial Disputes Act. When an element of public interest is created and the institution is catering to that element, the teacher, the arm of the institution is also entitled to avail of the remedy provided under Article 226; the jurisdiction part is very wide. It would be different position, if the remedy is a private law remedy. So, they cannot be denied the same benefit, which is available to others. Accordingly, we hold that the writ petition is maintainable. They are entitled to equal pay so as to be on par with Government employees under Article 39(d) of the Constitution." 50. The eleven Judge Bench in T.M.A. Pai while considering the relationship between the management and the employees/teachers of private technical and higher education though being contractual in nature but, in the case of educational institutions, the Court was of the opinion that requiring a teacher or a staff to go to Civil Court for the purposes of seeking redress is not in the interest of education. Therefore, it would be appropriate to setup Educational Tribunal by the State Government. ".............In the case of a private institution the relationship between the management and the employees is c....
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....decision of the management concerning disciplinary action or termination of service." 51. In compliance a number of States have set up Education Tribunal, the Government of Uttar Pradesh, however, is yet to comply. We hope and trust that Education Tribunal is setup in the State at the earliest being in the interest of general education, teachers and staff. 52. The contention of the learned Senior Counsel appearing for the respondent institution that minority institution imparting secular education is not amenable to judicial review under Article 226 of Constitution is untenable, accordingly rejected. The submission is on misreading of Pramati Educational & Cultural Trust and others v. Union of India and others, (2014) 8 SCC 1. The minority institutions were before the Supreme Court assailing the validity of the parliamentary enactment.--The Right of Children to Free and Compulsory Education Act 200936, providing free and compulsory education to children from the age of six years to fourteen years to enforce the fundamental right guaranteed under Article 21 A. The Court upheld the vires of Act, 2009 but declared Act, 2009 ultra vires of the Constitution, insofar, it was made appli....
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....gh Court under Article 226 of the Constitution of India. M.K. Gandhi/Anjani Kumar Srivastava case 57. The petitioners before the Full Bench were teachers in Delhi Public School (D.P.S. School) duly affiliated with Central Board of Secondary Education (CBSE). The services of the teachers came to be terminated without conducting any enquiry or affording any opportunity to the teachers. On notice to DPS School by the CBSE to show-cause, stand was taken that the services of the petitioners have been dispensed with in accordance with the terms of their appointment. The Full Bench was examining the scope and extent of protection available to the teachers teaching in school affiliated to the CBSE. 58. In this backdrop, the Court formulated the following points for determination: "(i) Whether the D.P.S. School is a State within the meaning of Article 12 of the Constitution. (ii) Whether the Board is a State within the meaning of Article 12 of the Constitution of India. (iii) Whether the 'Affiliation bye-laws' have statutory force. (iv) In case the answer to the second question is in negative then, whether the affiliation bye-laws are still binding on the schools affiliat....
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....ffiliation bye-laws." 61. In Anjani Kumar Srivastava, the Division Bench though noticing Ramesh Ahluwalia declined to interfere for the reason that private contract of service between the master and servant was not enforceable in writ jurisdiction. The case is confined to the facts obtaining therein. 62. In Ms. Geeta Pushp v. Union of India and others, 2018 (3) ADJ 98, the petitioner therein was a teacher in Army Public School managed by the Army Welfare Education Society, registered under the Societies Registration Act, 1860. The question for determination in the facts of the case was whether a writ petition by an employee or teacher for enforcement of service contract against the private institution was maintainable. It was held that while retiring a teacher there was no public law element in the action of the private body. The Court, therefore, declined to enforce the service contract in writ jurisdiction. The cases herein above are not reflective of the position of law that private educational institution render public duty and are amenable to judicial review under Article 226 of the Constitution of India. The Court in the given facts obtaining therein declined the relief to ....