Calcutta High Court (Appellete Side)
Santa Kanungo vs The Director Of Public Instruction on 27 September, 2019
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Dr. Sambuddha Chakrabarti
and
The Hon'ble Justice Abhijit Gangopadhyay
MAT 1351 of 2018
Santa Kanungo
Vs.
The Director of Public Instruction,
Education Directorate and Others.
For the appellant : Mr. Saptangshu Basu, Advocate
Mr. Debasis Banerjee, Advocate
Mr. Adil Badr, Advocate
Mr. Sobhan Gani, Advocate
Mr. Nazir Ahmed, Advocate
For the respondent nos. 2 to 6 : Mr. Pratik Dhar, Advocate
Mr. Samir Halder, Advocate
Ms. Cardina Roy, Advocate
For the State respondents : Md. Yasin Ali, Advocate
Ms. Tapati Samanta, Advocate
Heard on : 27.02.2019, 08.03.2019, 20.03.2019,
27.03.2019, 05.04.2019, 16.04.2019,
25.07.2019
Judgement on : 27.09.2019
2
Sambuddha Chakrabarti, J.:
This appeal is directed against the judgment and order, dated September 5, 2018 passed by a learned single Judge in W.P. No. 14211 (W) of 2018.
The appellant was initially appointed as a Library Clerk of Sarsuna Law College, the respondent no. 3. She was subsequently promoted to the post of Librarian-in-Charge. Thereafter, she was promoted to the post of the Librarian on probation for a period of two years. By a letter, dated July 28, 2018 the teacher-in-charge of the said law college informed the appellant that the governing body had taken a decision that her service towards officiation of Librarian on probation was not satisfactory. Therefore, she was not confirmed as a Librarian. The governing body requested her to discharge her duty in her confirmed post which is Library Clerk with immediate effect. That decision was challenged in the writ petition.
The respondents had taken a point about the maintainability of the writ petition as the respondent no. 3 was a self-financed private college to which a writ does not lie. The learned single 3 Judge found that the right to relief and remedy of the writ petitioner lay in private law, and not in public law and, therefore, the petitioner must find a remedy in private law.
The objection to the maintainability of the writ petition which was taken before the learned single Judge was also the objection taken by the college before us and since the learned single Judge had disposed of the writ petition on the ground whether the appellant was entitled to have her relief in private law the validity of the point of view of the learned single Judge has been the subject matter of challenge in appeal.
The appellant has assailed the finding of the learned single Judge on the ground that no reason or justification had been provided for such a conclusion. Mr. Basu submitted that the Supreme Court in various judgments have held that a writ petition under Article 226 of the Constitution of India is maintainable against a private educational institution by its employee seeking appropriate reliefs in matters relating to service condition. The appellant submitted that the college discharged public duties and functions which were not properly addressed by the learned single Judge. The college is affiliated to Vidyasagar University and the 4 policies with regard to the recruitment and service condition of its employees were guided by the statute of Vidyasagar University. For the self-financed colleges, the Government of West Bengal had framed guidelines and the college had to comply with the same. In terms of the said guideline every self-financing college shall have the power to make regulations regarding the terms and conditions of service of every employee including Librarian and non-teaching staff in such a manner which shall not be detrimental to the interest of the employees and such regulations shall be subject to prior ratification by the State Government.
Clause 21(b) of the said Guidelines further empowers the State Government to conduct an inspection of self-financing colleges for which the Director of Public Instructions shall act as the regulatory authority. The State Government has also the power to take actions against the self-financing colleges in the event of major irregularities and contravention of rules which endanger the academic environment and future of students. Relying on the judgment in Shri Anadi Mukta Sadguru Shree Mukta Jeevandasijiswami Suvarna Jayanti Mahotsav Somarak Trust and Others Vs. V. R. Rudani and Others, reported in AIR 1989 SC 1607, Mr. Basu submitted that the requirement of pervasive control of 5 the State upon the college does definitely exist in the present case making the college amenable to the writ jurisdiction. The Supreme Court in that case observed that if the rights are purely of a private character no mandamus can issue and if the management of college is purely a private body with no public duty mandamus will not issue. They have been described as two exceptions to the issue of mandamus.
In the said judgment the Supreme Court observed that writs can be issued for the enforcement of any of the fundamental rights and for any other purpose. The word 'authority' used in Article 226 must receive a liberal meaning. Article 226 of the Constitution of India confers powers on the High Courts to issue writs for enforcement of fundamental rights as well as non-fundamental rights. The words 'any person or authority' used in Article 226 of the Constitution of India are not to be confined only to statutory authorities or instrumentalities of the State. This may cover any other person or body performing public duties. 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. If a positive obligation exists, mandamus cannot be denied nor can it be denied on the ground 6 that the duty to be enforced was 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.
Mr. Basu specifically submitted that the learned single Judge placed reliance on His Lordship's own judgment, dated August 27, 2018 in Shrikanta Maity Vs. The State of West Bengal and Others, (W.P. No. 1407 (W) of 2018). However, the said Hon'ble Judge while hearing three writ petitions subsequently viz., W.P. No. 11280 (W) of 2018, W.P. No. 5867 (W) of 2018 and W.P. No. 5868 (W) of 2018 had specifically observed that the view taken by a Division Bench in the judgment and order, dated April 8, 2016 in The Beli Sankarpur Rajib Gandhi Memorial Ayurvedic College and Hospital Vs. the State of West Bengal and Others (MAT 239 of 2016), on the case of Dr. Janete Jeyapaul Vs. S.R.M. University, reported in (2015) 16 SCC 530 was different from the one taken by His Lordship in the case of Shrikanta Maity (Supra). The learned single Judge observed: "in following judicial discipline of being bound by view taken by Division Bench, this Court cannot undo its earlier judgment where no appeal has been preferred, as told to the Court." The writ petitions were released by His Lordship. 7
Mr. Basu further relied on the judgment in the case of Ramesh Ahluwalia Vs. State of Punjab and Others, reported in (2012) SCC 331 where the Supreme Court reiterated that the issue of writ is not confined to statutory authorities or instrumentalities of the State. Writ cannot be denied if a person or authority concerned performs public duty not necessarily imposed by statute. Since the respondent performed public functions by providing education to children in their institutions, writ cannot be withheld merely because respondent is purely a private educational institution.
Mr. Dhar, the learned senior Counsel appearing for the respondent nos. 3 to 6 sought to justify the stand about non- maintainability of the writ petition on the ground that discharge of public function by an institution and service matters of its employees are two different exercises. He very heavily relied on the case reported in Mithai Lal Passi Vs. CESC Ltd. and Others, reported in (2003) 3 CHN 357 where a learned single Judge of this court had held that the CESC authority was not a State within the meaning of Article 12 of the Constitution of India for the purpose of challenging an order of termination of service of its employees. Mr. Dhar submitted that CESC is a private company which is bound to 8 supply electricity for which writ lies but for the service matters of employees of the company writ is not available.
Mr. Dhar has relied on Raghuraj Singh and Company (Contractors) Pvt. Ltd. Vs. CESC Ltd. and Others, reported in (1998) 2 CHN 325, where a learned single Judge of this Court had held that a writ as against the CESC may be maintainable as regards its activities with regard to the supply of electrical energy as a licensee in terms of the provisions of the Indian Electricity Act. But no writ shall lie as against it for enforcing a contract. He has also relied on the judgment in the case of Tushar Kanti Roy Vs. Eighth Industrial Tribunal, reported in (2013) 2 CLJ 620, where also the judgment in the case of Mathai Lal Passi (Supra) was followed with regard to the maintainability of writ against the CESC for the purpose of challenging the order of termination of service of its employees. Mr. Dhar next submitted that since the law college does not teach students below 14 years the act of imparting education does not cover Article 21A of the Constitution of India.
Mr. Dhar relied on the judgment in the case of Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology and Others, reported in (2002) 5 SCC 111, where the Supreme Court had laid 9 down the criteria for treating a body as a State within the meaning of Article 12 of the Constitution of India. The Supreme Court observed that the question in each case would be whether in the light of the cumulative facts as established the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive if this is found the body is a State within the meaning of Article 12 of the Constitution of India. Based on this principle, Mr. Dhar submitted that the question involved in the present case is non-regularization of officiation period or promotion or demotion that cannot be said to be controlled by the State or a University. No approval is necessary from the University either for appointment or promotion or for regularization of the period serviced by the appellant.
Mr. Dhar next relied on the judgment in the case of Committee of Management, Delhi Public School and Another Vs. N. K. Gandhi and Others, reported in (2015) 17 SCC 353 there the Supreme Court had held that the writ petition against the Delhi Public School was not maintainable as it was not a State within the meaning of Article 12 of the Constitution of India. In Dipak Kumar Biswas Vs. Director of Public Instruction and Others, reported in 10 (1987) 2 SCC 252, the Supreme Court had held that even if the college in question might be governed by the statute of the University and the Education Code framed by the government of Meghalaya and even though the college may be receiving financial aid from the government it would not be a statutory body because it has not been created any statute and its existence is not dependent upon any statutory provision.
Mr. Dhar next relied on the case of Satimbla Sharma and Others Vs. St. Poul's Senior Secondary School and Others, reported in (2011) 13 SCC 760 where the Supreme Court had held that a Court cannot issue a mandamus to a private aided school to pay the salary and allowance equal to the salary and allowances payable to teachers of government schools or government aided schools. In Sushmita Basu and Others Vs. Ballygunge Sikhsha Samity and Others, reported in (2006) 7 SCC 680 a writ petition was filed in the High Court for issue of a writ of mandamus directing a private educational institution to implement the recommendation of the third Pay Commission. Relying on an earlier judgment the Supreme Court observed that interference under Article 226 of the Constitution of India to issue a writ of mandamus against a private educational institution would be 11 justified only if a public law element was involved and if it is only a private law remedy no writ petition would lie.
Mr. Dhar lastly relied on an unreported judgment dated May 21, 2018 in the case of Rajesh Bhardwaj Vs. Union of India and Others, (Writ-A No. 54840 of 2013). A Division Bench of the Allahabad High Court found that the relationship of employment between the writ petitioner and the respondent company was an ordinary contract of service which was not governed by any statute or statutory provision and, therefore, no relief could be granted to the employee. He could only claim damages.
It is true that in Andi Mukta Sadguru (Supra), the Supreme Court has widened the scope of interference in a writ jurisdiction. Only two deterrents for a writ court to interfere are that the right is purely of a private character and if the college or the institution is purely a private body with no public duty. Except under these two circumstances a court can always issue a writ in the nature of mandamus under Article 226 of the Constitution of India. The Supreme Court clarified that the words "any person or the authority" used in Article 226 of the Constitution of India should 12 not be confined only the statutory authorities and instrumentalities of the State.
This takes us to the consideration of the connotation of the words "public duty". The judgment in the case of Ramesh Ahluwalia has accepted that providing education to the children is a public function and, therefore, writ would be maintainable. Mr. Dhar sought to distinguish the case of Ramesh Ahluwalia on the ground that imparting education to children is covered under Article 21A of the Constitution of India. The fact, however, remains that a private body, in order to be amenable to the writ jurisdiction, should either be substantially on State funding or discharge public duty or positive obligation of public nature or is under liability to discharge any function under any statute, as observed by the Supreme Court in K. K. Saksena Vs. International Commission on Irrigation and Drainage and Others, reported in (2015) 4 SCC 670. The reasons for not considering the respondent no. 1 of that case as a State was that there was no pervasive governmental control over its function.
The same can also be said of the concerned college. Merely because the government has framed a guideline for setting up of 13 self-financing degree colleges, it does not mean that the government exercises deep and pervasive control over the management and running of the institution. The power to make regulations regarding terms and conditions of service of every employees or conducting an inspection does not mean functional control over the college.
The judgment in the cae of Ramesh Ahluwalia has no application to the facts of the present case. It is true that imparting education to children has been held to be a public function in the case of Ramesh Ahluwalia but it cannot be lost sight of that this activity is covered under Article 21A of the Constitution of India.
The subject matter in the judgment of K. Krishnamachayulu and Others (Supra) was entirely different. There the employees of non-aided private educational institutions were seeking pay parity with employees of government institutions. Since the claim was based on government instructions the Supreme Court observed that the employees had an enforceable right and there was an element of public interest. The writ petition was, therefore, maintainable. The appellants were entitled to seek enforcement of government orders under Article 226 of the Constitution of India. 14 The judgment in the case of Janete Jeyapaul (Supra) is also very clearly distinguishable as the respondent was notified to be a deemed university. We quite agree with the submission of Mr. Dhar that the judgment does not take note of the fact that even if the institution is amenable to writ jurisdiction the service matter of the employees of such institution may not be subject of judicial review.
For the reasons aforesaid, we are of the view that there is no public law element involved in the nature of dispute raised in the writ petition. Applying the test laid down in Pradip Kumar Biswas it cannot be held that the college is financially, functionally and administratively dominated by or under the control of the government. The control that the appellant has mentioned is more regulatory in nature which does not justify an interference by the writ court.
Thus, we find no impropriety in the view taken by the learned single Judge. We also hold that the remedy of the appellant lies in private law.
The appeal is devoid of merits and the same is dismissed. 15 There shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.) I agree (Abhijit Gangopadhyay, J.)