Andhra Pradesh High Court - Amravati
Piridi Prakasa Rao, vs The State Of Andhra Pradesh, on 27 November, 2019
Author: J. Uma Devi
Bench: J. Uma Devi
THE HON'BLE SRI JUSTICE M. SEETHARAMA MURTI
AND
THE HON'BLE MS. JUSTICE J.UMA DEVI
Writ Appeal No.267 of 2019
JUDGMENT:(Per Hon'ble Sri Justice M.Seetharama Murti) This Writ Appeal, under Clause XV of the Letters Patent Act, is filed by the unsuccessful writ petitioners being aggrieved of the orders, dated 05.08.2019, of the learned Single Judge, passed in Writ Petition no.1432 of 2019.
We have heard the submissions of Sri A.K.Kishore Reddy, learned counsel appearing for the appellants; of the learned Government Pleader for Education, appearing for the 1st respondent; of Sri T.S.Rayalu, learned counsel representing Sri W.B.Srinivas, learned counsel appearing for the 2nd respondent; and, of Sri Goli Narasimha Rao, learned counsel appearing for the respondents 3 & 4. We have perused the material record.
The parties in this appeal shall hereinafter be referred to as arrayed in the writ petition.
The writ petitioners 1, 2 & 5 having attained the age of 58 years were already superannuated. However, the appellants 3 & 4, who are supposed to retire by the end of August, 2019, in case their age of superannuation is not extended upto 60 years, are being allowed to continue in service in view of the interim orders of this Court and as orders in this writ appeal are awaited.
At the outset, it is to be noted that the writ petition was filed seeking a writ of mandamus declaring the action of the respondents, particularly respondents 2 to 4, in not enhancing the age of superannuation of the petitioners from 58 years to 60 years, despite the fact that the 1st respondent 2 MSRM, J & JUD, J W.A.no.267 of 2019 had enhanced the age of superannuation of all Government employees and in not considering the petitioners' representations, as illegal, arbitrary and violative of articles 14 & 21 of the Constitution of India and for consequential direction to the respondents 2 to 4 to enhance the age of superannuation of the petitioners upto 60 years with all consequential benefits. As noted, the relief is now confined to the petitioners 3 & 4.
Insofar as advertence to the facts, which are relevant for consideration, we may conveniently refer to the facts, which are succinctly summarized in the writ order.
The facts of the case of the petitioners, in brief, are as follows: - 'The 1st respondent is the State. 2nd respondent is a company under the control and maintenance of the Government of India. It provides certain amenities to its employees. One of such amenities is making a provision for education to the children of employees. The 3rd respondent is a reputed society at Visakhapatnam. It has good name in successfully managing schools and colleges at Visakhapatnam. Therefore, respondents 2 & 3 entered into a Memorandum of Agreement ('MOA'), dated 03.04.1986. As per the terms of the said MOA, 3rd respondent established 4th respondent School in the Visakhapatnam Township (Ukkunagaram) and all the amenities and requirements for running the school are being provided by the 2nd respondent. The school is being managed by the 3rd respondent with the help of Local Managing Committee with the nominee of Chairman & Managing Director, RINL/VSP as its Chairman. As per the MOA, the teaching staff will be selected and appointed by the 3rd respondent for imparting education to the children of Visakhapatnam Steel Plant ('VSP', for brevity) employees and the children of the employees of the 4th respondent and other children. The selection of teaching and non-teaching staff will be done by the 3rd respondent. The MOA stipulates that the scales of pay, other 3 MSRM, J & JUD, J W.A.no.267 of 2019 allowances and the benefits are to be provided to the staff of the 4th respondent as per the A.P. State Government Rules. Petitioners 3 & 4 were appointed as 'Secondary Grade Assistants' on 05.07.1989 and 17.06.1987 respectively. The age of superannuation of the petitioners as per the rules and regulations maintained by the 1st respondent and as per the MOA between the respondents 2 & 3 was 58 years. However, the 1st respondent, in pursuance of the provisions of the Andhra Pradesh Public Employment (Regulation of Age of Superannuation (Amendment) Act, 2014 (Act 4 of 2014) and A.P. Reorganization Act, 2014, issued G.O.Ms.no.102, Finance (HR.IV-FR) Department, dated 27.06.2017, enhancing the age of superannuation of all Government employees from 58 years to 60 years. Hence, the same has to be applied to the petitioners also inasmuch as in the MOA, it was categorically mentioned that service rules and pay of the employees of the 4th respondent will be as per the rules of the 1st respondent. Despite the fact that Act 4 of 2014 was enacted, the 3rd respondent did not consider to enhance the age of superannuation of the petitioners. The requests made by the petitioners are of no avail. The respondents 2 & 3 are escaping by mutually shifting the burden on each other with regard to enhancement of age of superannuation. Except the respondents 2 & 3, the other State owned Corporations, Companies, Societies and other institutions have already issued orders enhancing the age of superannuation of their respective employees. Hence, the writ petition is filed.' The 2nd respondent filed a counter inter alia contending as follows: -
'The writ petition is liable for dismissal in limine as not maintainable in law since the 3rd respondent society and the 4th respondent school do not fall under the definition of 'State' under Article 12 of the Constitution of India and hence, they are not amenable to writ jurisdiction under Article 226 of the Constitution of India. The petitioners are employees of a school run by a society, whose 4 MSRM, J & JUD, J W.A.no.267 of 2019 byelaws have no force of a statute. There is no statutory violation committed by respondents 3 & 4 to seek a writ of mandamus. The petitioners are not employees of the 2nd respondent. Hence, no relief can be claimed against it.
Thus, the writ petition is liable to be dismissed in limine. The 2nd respondent is not one of the listed companies/Corporations, Societies and other institutions listed under Schedule IX and X of the Act 4 of 2014 and as such, the orders and rules of the 1st respondent do not apply and bind the 2nd respondent. On the ground that by Act 4 of 2014, the State Government enhanced the age of superannuation of its employees, the petitioners cannot seek the relief of enhancement of age of superannuation on par with the employees of the State Government or on par with the companies listed in Schedule IX. The 2nd respondent is an organization under the control of Central Government, whereas the 4th respondent school is maintained by the 3rd respondent society, which is registered under the Societies Registration Act, 1860. The 3rd respondent has its own byelaws. Therefore, the State Government Rules are not applicable to them automatically. Those byelaws of the 3rd respondent have no statutory force and are not enforceable by a writ. As per the MOA, the school is being run by the 3rd respondent society and the 2nd respondent has only entered into MOA with a benevolent purpose and is granting some funds under the terms of the MOA. Clause 10 of the MOA clearly stipulates that the staff employed by the Society for the school will be working for the period for which the agreement was entered into. Respondents 2 & 3 have a subsisting contract only for five years with effect from 01.06.2014. Further, clause 11 of the MOA states that only pay and other allowances are as per the State Government scales, but it does not stipulate that all the service conditions of the State Government employees such as age of retirement, pension etcetera are applicable. Though the MOA was entered into for the benefit of children of the employees working with the 2nd respondent company, presently only 47 out 5 MSRM, J & JUD, J W.A.no.267 of 2019 of 2445 students in the school are children of employees of 2nd respondent and the remaining 2398 students are children of outsiders. Despite the said fact, the 2nd respondent has been arranging funds with a benevolent intention. The employees of the society are not the State Government employees and the State is not providing any grant-in-aid to the school.' Respondents 3 & 4 filed counter affidavit denying the writ petition averments and contending as follows: - 'Respondent no.3 agreed to run the school mainly for the children of employees of VSP. Accordingly, MOA was entered into between the respondents 2 & 3 for establishment of respondent no.4-school under the name and style of Visakha Vimala Vidyalayam for 5 years commencing from the academic year 1984-85 and renewable on mutual consent. The school is being managed by the 3rd respondent in the own building of the 2nd respondent and with the furniture provided by it. The selection and appointment of teaching and non-teaching staff will be made by the 4th respondent only. As per the recitals of MOA, the 2nd respondent has to bear the recurring and non-recurring expenditure towards teaching and non- teaching staff for five years. There is no aid or grant to the school till today either from the Centre or State Government. Subsequently, MOA was extended from time to time with certain mutually agreed terms and conditions. The latest extension was on 21.01.2015 for five years with effect from 01.06.2014. As per Clause no.11 of the MOA, the scales of pay, other allowances and benefits, without pension, are as being followed by A.P. State Government from time to time to the teaching and non-teaching staff, who are employed on or before 31.05.2014. The teaching and non-teaching staff recruited on or after 01.06.2014 will be appointed on a consolidated pay as per Clause no.23. The 2nd respondent is at liberty to terminate the agreement by giving advance notice of two academic years despite respondent no.3 complying with all the 6 MSRM, J & JUD, J W.A.no.267 of 2019 terms and conditions set forth in the agreement. Therefore, if the 2nd respondent terminates the agreement, respondents 3 & 4 cannot run the school with the present high salaries to its staff both teaching and non-teaching as the same comes around to about one lakh of rupees per month to the senior staff. The 4th respondent school is purely a private un-aided educational institution. Therefore, Act 4 of 2014 cannot be made applicable to the teaching and non- teaching staff of the 4th respondent school. The said Act is applicable only to Government employees but not the employees working in private organizations or institutions. Representations were received from the employees for enhancement of age of superannuation from 58 years to 60 years but weighing all facts, the employees were informed about the non-feasibility to accept their request. The 2nd respondent in its reply letter, dated 10.01.2017, to the request, dated 07.01.2017, made by the 4th respondent-school did not agree to rise the superannuation age. Further, as per G.O.Ms.no.102, dated 27.06.2017, the specific decision to enhance the superannuation age from 58 years to 60 years to the employees working in institutions listed in IX and X schedule was left to the discretion of the Board of Directors/Managing Committees of the respective institutions and it was further mentioned in the said GO that while doing so, the institutions shall take into consideration their financial positions and genuineness of their need to enhance the age of superannuation. Nine members of the staff of the 4th respondent accepted their retirement age and they were retired from service. Owing to the financial burden, the present appointments are being made on ad hoc basis on consolidated pay for the tenure of MOA. For all these reasons, the writ petition is not maintainable. Hence, the writ petition may be dismissed.' The petitioners filed a reply affidavit reiterating their originally pleaded case and denying the averments in the counter of the contesting respondents 7 MSRM, J & JUD, J W.A.no.267 of 2019 and pleaded that the 4th respondent never informed the petitioners that the request made by the petitioners for enhancement of age of superannuation will not be considered and that it was pleaded for the first time in the counter to that effect; and, that the respondents have to bear the additional financial burden in case of increase of the age of superannuation of the petitioners, cannot be a ground to reject the legitimate request of the petitioners, since they have been working for the last more than thirty years.
Having regard to the pleadings, the learned Single Judge formulated the following points:
(i) Whether respondents 2 to 4 answer the definition of 'State'? and if so, whether the A.P. State Laws, particularly, Act 4 of 2014 and Section 78-A of the Education Act are applicable to them?
(ii) Whether the petitioners are the employees of 2nd respondent or 4th respondent school run by 3rd respondent society?
(iii) Whether the 4th respondent school is a private un-aided school and if so, Section 78-A of the Education Act, 1982 is applicable to the said school?
(iv) To what relief?
On merits and by the order impugned in this writ appeal, the learned Single Judge dismissed the writ petition of the petitioners having answered all the points in favour of the respondents and against the petitioners.
Aggrieved thereof, the present writ appeal is preferred. In fact, learned counsel for the parties reiterated the contentions of the parties, which are already elaborately narrated supra.
Learned counsel for the writ petitioners/appellants further contended as follows:
The 2nd respondent is aiding the 4th respondent school, which is being managed and run by the 3rd respondent society. The MOA entered into
8 MSRM, J & JUD, J W.A.no.267 of 2019 between respondents 2 & 3 categorically demonstrates the said fact. Hence, dismissal of the writ petition on the ground that the 4th respondent is not aided by the Central Government or the State Government is not correct. The observations in the writ order are contrary to the clauses in the MOA. Clause 11 of the MOA categorically postulates that the pay and other allowances and the benefits, without pension, as followed by the Andhra Pradesh State from time to time will be the same benefits to the appellants herein. The learned Single Judge has failed to follow the law laid down by the High Court in Gangikuntla Sridhar and others v. State of Andhra Pradesh [2017(2) ALT 485 (D.B)]. The adjudication of the writ petition without following the said judgment is totally illegal. Hence, the order under challenge is unsustainable. The learned Single Judge has not followed Article 12 of the Constitution of India and its parameters while adjudicating the writ petition. The learned Single Judge ought not to have observed that there is no nexus between the appellants and the 2nd respondent. The learned Single Judge ought to have looked into the MOA and the judgments cited. The learned Single Judge failed to appreciate the facts that appointment of teaching and non-teaching staff of the 4th respondent school is totally controlled by the 2nd respondent and therefore, the 2nd respondent cannot agitate that there is no nexus with the appellants. The learned single Judge erroneously observed that Act 4 of 2014 cannot be directed to be implemented by the 2nd respondent. The said observation is totally arbitrary, in view of clause 11 of the MOA. Hence, the impugned order is liable to be set aside.
Learned counsel for the respondents 2 to 4 supported the order of the learned Single Judge in all respects.
The points that fall for consideration are:
9 MSRM, J & JUD, J W.A.no.267 of 2019
(i) Whether the writ petitioners 3 & 4, with whom we are presently concerned, are entitled to the relief claimed in the writ petition? And, if so, whether a direction can be given either to the 2nd respondent or to the respondents 2 to 4 together for enhancement of age of superannuation of the petitioners 3 & 4 from 58 years to 60 years?
(ii) Whether the order impugned of the learned Single Judge is unsustainable under facts and in law?
(iii) To what relief?
POINTS:
Rashtirya Ispat Nigam Limited (RINL) also known as Vizag Steel Plant [VSP] is a public steel producer based at Visakhapatnam. It is a public sector undertaking and a Government of India enterprise wholly owned by the Government of India previously. It is informed that of late public issues are made. A public sector undertaking is a distinct juristic entity with a corporate structure of its own and carries on its functions on commercial principles and most importantly with certain flexible autonomy though behind the formal ownership is the deeply pervasive presence of the Government, which acts through the instrumentality or agency of the Corporation. Hence, the 2nd respondent-RINL answers the definition of 'State' being the instrumentality of Government of India for the purpose of Article 12 in Part III of the Constitution of India. Further, the 3rd respondent society with which the 2nd respondent entered into the MOA is admittedly a registered society under the Societies Registration Act, 1860. Be that as it may.
Dealing with the core issue under point no.1, it is necessary to advert to the relevant terms of MOA. As per the terms of the said MOA, entered into between the 2nd respondent company and the 3rd respondent society, the 4th respondent school was established in 1984-85 initially for a period of 5 years. The said period, which was extendable, was extended by different agreements, 10 MSRM, J & JUD, J W.A.no.267 of 2019 the latest being in the year 2015 for 5 years commencing from the academic year 2014-15.
The contents of the relevant terms of the MOA and some of the important terms therein are as under:
"The 4th respondent school will be managed by the 3rd respondent with the local managing committee. The Chairman of the said committee is the nominee of the Chairman & Director of the 2nd respondent-RINL. Clause 6 of MOA reflects that the school building in Sector VI of Township with other paraphernalia was provided by 2nd respondent on a nominal rent of Rs.1/- per month to be paid by 3rd respondent. As per Clause 7, the 2nd respondent shall bear the recurring and non-recurring expenditure towards teaching and non- teaching staff and further it has to pay an amount of Rs.1,00,000/- as administrative charges to the 3rd respondent. Clause 10 reflects that selection and appointment of teaching and non-teaching staff of the school will be made by the Manager/Bishop of the school after the post is sanctioned by the Local Managing Committee [LMC] and that the staff will be employed by the society for the school for the period of agreement with the 2nd respondent. Clause 11 provides that the scales of pay, other allowances and benefits being provided by the A.P. State Government from time to time to its teaching and non- teaching staff will be the scales of pay, other allowances and benefits, without pension, for the teaching and nonteaching staff on the rolls of the school, i.e., for those who are employed on or before 31.05.2014. Clause 21 provides that the agreement for running the school will remain in force for 5 years from the academic year 2014- 15 with effect from 01.06.2014 and may be extended by mutual agreement." As noted, the latest extension is for another five-year term from 2014-15.
11 MSRM, J & JUD, J W.A.no.267 of 2019 Thus, the terms of the MOA are clear to the effect that the 2nd respondent only provides financial assistance by bearing the recurring and non recurring expenditure towards teaching and non teaching staff besides Rs.1,00,000/- towards administrative charges besides providing building on nominal rent and other paraphernalia to 3rd respondent to run the school in the precincts of the 2nd respondent company for the benefit of the children of the employees and other children. The LMC sanctions the posts. Therefore, the 2nd respondent - RINL through its representative, who is the Chairman of the LMC has a role in the same. The staff, both teaching and non-teaching, of 4th respondent school are being treated as the employees of 3rd and 4th respondents as the selection & appointment is by the 4th respondent school and the employment is by the 3rd respondent society. However, the continuation of the school depends upon the terms of the further mutual agreement. Thus, the 2nd respondent - RINL is not only providing the building on nominal rent with paraphernalia but also meeting the financial needs/expenditures towards teaching and non teaching staff and a part of administrative charges in a sum of Rs.1,00,000/- as agreed upon.
In this backdrop of facts and the clauses of the MOA, it is necessary to advert to the legal aspects. The contention of the 2nd respondent is that by an amendment to Andhra Pradesh Public Employment (Regulation of age of Superannuation) Act, 1984, the age of superannuation of Government employees is enhanced from 58 to 60 years. However, admittedly, the petitioners are not Government employees. Further, Section 78-A of the Education Act, 1982, was also amended and the age of superannuation of teaching and non teaching staff of aided private educational institutions is enhanced from 58 years to 60 years. However, 2nd respondent-RINL contends that by virtue of clauses of MOA, by which the parties are bound, the 12 MSRM, J & JUD, J W.A.no.267 of 2019 petitioners cannot claim the said benefit. The sum and substance of the above enactments is that the teaching staff of the Government schools and aided private educational institutions superannuate on attaining the age of 60 years. However, the petitioners, who are discharging the same functions as teaching staff are not given the said benefit of enhancement of age of superannuation. It is pertinent to note that clause 11 of MOA reads as under: - 'The scales of pay, other allowances and benefits followed by the AP State Government from time to time to the teaching and non teching staff will be the scales of pay, other allowances and benefits, without pension, for the teaching and non teaching staff as on rolls of the school, who were employed on or before 31.05.2014 and for the Rev.Sisters who will be appointed from time to time to manage the school in its day to day activities, by the society. The teaching and non teaching staff recruited on or after 01.06.2014 will be appointed on consolidated pay.' In view of the said clause, the petitioners contend that they are entitled to the benefit of enhancement of the age of superannuation as the petitioners are employed prior to the said date, 31.05.2014. The petitioners also contend that the 3rd respondent society being the employer and the 4th respondent school being the selecting and the appointing authority cannot be heard to say that they cannot take independently a decision as regards the enhancement of age of superannuation of the teaching staff and that the 2nd respondent did not agree to enhance the superannuation age when the requests are forwarded and therefore, they are helpless. Meeting the contentions, the 2nd respondent-RINL contends that the petitioners are not its employees and that they are only the employees of the society, yet, the 2nd respondent-RINL opposes for enhancement of age of superannuation of the petitioners. Thus, the 2nd respondent - RINL at one breathe says it has nothing to do with the service conditions of the teaching staff and at another says that it does not agree for the enhancement of age of superannuation of the school teaching 13 MSRM, J & JUD, J W.A.no.267 of 2019 staff. When the contention of the 2nd respondent is that the teaching staff are not its employees, it cannot be allowed to raise any valid objection for enhancement of age of superannuation of the teachers. Moreover, respondents 3 & 4 are only directly concerned with the selection, appointment and employment of the teaching staff of the 4th respondent school though admittedly 2nd respondent is bearing recurring and non recurring expenditure and administrative charges to some extent. The imparting of education is a public function and employment in educational institutions is not devoid of any public character. Therefore, when teachers in Government institutions and Government aided private institutions are given the benefit of enhancement of age of superannuation, the present petitioners 3 & 4, who are discharging the same duties in the 4th respondent school, and when their employments are not devoid of any public character and when the 4th respondent school being run by the 3rd respondent society is discharging a public function, the said petitioners shall be entitled to the same benefit on the principle of parity more particularly in the light of the contents of clause 11 of MOA extracted supra and as their appointments are prior to 31.05.2014.
For the foregoing reasons, we hold that the petitioners 3 and 4 are entitled to the relief of enhancement of their age of superannuation from 58 to 60 years.
Before parting, it is to be noted that the respondents in the writ petition contended that the writ petition is not maintainable for the following reasons: - 'Respondents 2 to 4 do not answer the definition of 'State'. The 3rd respondent society is not discharging public duty. The 2nd respondent - RINL though may be called as an agency or an instrumentality of the State within the meaning of Article 12 of the Constitution, it cannot be held to be an agent of the Centre or State Government under Section 182 of the Indian Contract Act.
14 MSRM, J & JUD, J W.A.no.267 of 2019 The teachers are not the servants of the 2nd respondent - RINL. The 2nd respondent does not answer the general definition of State except for Article
12 to safeguard fundamental rights of its employees. Respondent no.3 is a society registered under the Societies Registration Act and it cannot be said to be a State or an instrumentality of the State. The 4th respondent, which is a private educational institution not getting any aid from the Government, does not fit into the definition of the State or an instrumentality of the State. Hence, the writ petitioners - appellants are not entitled to any relief under Article 226 of the Constitution of India.' In reply, learned counsel for the writ petitioners - appellants submitted that the 2nd respondent - RINL having entered into an MOU with the 3rd respondent society for establishment of the 4th respondent school is funding the expenditure of the school including the salaries payable to the teachers and that admittedly, the 2nd respondent - RINL answers the definition of 'State' being an instrumentality of the State and therefore, the contentions of the respondents are untenable.
In view of the rival contentions, it is necessary to refer to the decision in Anandi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Samarak Trust v. V.R. Rudani [(1989) IILLJ 324SC] where a writ of mandamus was issued against a private college. In the said judgment, it was held as follows:
"The essence of the attack on the maintainability of the writ petition under Article 226 may now be examined. It is argued that the management of the college being a trust registered under the Bombay Public Trust Act is not amenable to the writ jurisdiction of the High Court. The contention in other words, is that the trust is a private institution against which no writ of mandamus can be issued. In support of the contention, the counsel relied upon two decisions of this Court: (1) Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain MANU/SC/0052/1979 and (b) Deepak Kumar Biswas v. Director of Public Instructions MANU/SC/0621/1987: (1987) 15 MSRM, J & JUD, J W.A.no.267 of 2019 ILLJ 516 SC. In the first of the two cases, the respondent institution was a Degree College managed by a registered co-operative society. A suit was filed against the college by the dismissed principal for reinstatement. It was contended that the Executive Committee of the college which was registered under the Co-operative Societies Act and affiliated to the Agra University (and subsequently to Meerut University) was a statutory body. The importance of this contention lies in the fact that in such as case, reinstatement could be ordered if the dismissal is in violation of statutory obligation. But this Court refused to accept the contention. It was observed that the management of the college was not a statutory body since not created by or under a statute. It was emphasised that an institution which adopts certain statutory provisions will not become a statutory body and the dismissed employee cannot enforce a contract of personal service against a non-statutory body."
"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 added 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. 226). 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 he staff and the? management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.
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)(e) of the Law commission Act, 1965, requested the Law Commission "to review the existing remedies for the judicial control of administrative acts and omission with a view to evolving a simpler and more effective procedure". The Law Commission made their report in 16 MSRM, J & JUD, J W.A.no.267 of 2019 March 1976 (Law Commission made their report in March 1976 (Law Commission Report 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.
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 band 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. (See The Closing Chapter by Rt. Hon. Lord Denning p. 122).
There, however, the prerogative writ of mandamus is confide 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 "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. - (I) Notwithstanding anything in Article 32, r 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, orders and writs, including writs in the nature 17 MSRM, J & JUD, J W.A.no.267 of 2019 of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part II and for any other purpose.
The scope of this article has been explained by Subba Rao, J., In Dwarkanath v. ITO 1965 3 SCR 535:
This article is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It 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", for the said 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 Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Court to mould the relies to meet the peculiar and complicate requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English courts to issue prerogative writs is to introduce the unnecessary procedural 'restrictions grown over the years in a comparatively small country like England with a unitary form of government into a vast country like India functioning under a federal structure. Such a construction defeat the purpose of the article itself. The term "authority" used in Article 226 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 right 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 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 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."
18 MSRM, J & JUD, J W.A.no.267 of 2019 The emphasis in this cited case is as to the nature of duty imposed on the body. It requires to be observed that the meaning of authority under Article 226 came to be laid down distinguishing the same term from Article 12.
In spite of it, if the emphasis is on the nature of duty on the same principle it has to be held that the present educational institution discharges public duties. Irrespective of the educational institutions receiving aid it should be held that it is a public duty. The absence of aid does not detract from the nature of duty. Thus, the ratio in the above decision is a complete answer to the contentions of the respondents. As a sequel, it must be held that the writ petition is maintainable and that there are no legal or technical impediments for granting the relief to the petitioners.
For the reasons afore-stated, we answer the points in favour of the petitioners 3 & 4 - appellants 3 & 4.
In the result, the Writ Appeal is allowed in part and the impugned order is set aside in part and as a sequel the respondents 2 to 4 are directed to enhance the age of superannuation of the petitioners 3 & 4 - appellants 3 & 4 from 58 to 60 years.
There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
_____________________ M. SEETHARAMA MURTI, J ____________ J. UMA DEVI, J 27th November, 2019 RAR 19 MSRM, J & JUD, J W.A.no.267 of 2019 THE HON'BLE SRI JUSTICE M. SEETHARAMA MURTI AND THE HON'BLE MS. JUSTICE J.UMA DEVI Writ Appeal No.267 of 2019 (Judgment of the Division Bench delivered by Hon'ble Sri Justice M.Seetharama Murti) 27.11.2019 RAR