Delhi High Court
Harish Sabharwal And Ors. vs Lt. Governor Of Delhi And Ors. on 16 October, 1996
Equivalent citations: 70(1997)DLT405
JUDGMENT C.M. Nayar, J.
(1) This judgment will dispose of Civil Writ Petition No. 966/ 96, Mr. Harish Sabharwal & Ors. v. Lt. Governor & Ors., and Civil Writ Petition No. 2373/96, Mr. Pradeep Yadav v. Lt. Governor & Ors.
(2) The brief facts of the case are that on December 18, 1995 an open advertisement was published in "The Hindustan Times" inviting registration for admission to K.G. Class for Session 1996-97 for children of 4+ years as on April 1, 1996 from serving Air Force and Non-Air Force personnel. In response to the said public notice the petitioners registered their children by filling up the prescribed Forms on the basis of their eligibility for admission in "Non-Air Force" category. THE detailed particulars of the petitioners' children in both petitions can be reproduced as follows: Name of the child Registration No. (a) Master Kunal Sabharwal NAF/175 (b) Kiku Lal NAF/025 (e) Nitesh Ahlawat NAF/173 (d) Jayant Sehgal NAF/425 (e) Nivediata Malik NAF/172 (f) Kashika Yadav (in Cw No. 2373/96) Respondent No. 5 School formulated its criteria to determine the eligibility to Air Force and non-Air Force categories and as large number of students who were eligible for admission applied held the test for all the students to determine their relative merit.
(3) The main contentions of the learned Counsel for the petitioners which have been canvassed before this Court are: (a) that though the respondent's school conducted test to determine merit, the results have not been declared and an arbitrary selection has been made; (b) the advertisement did not provide for debarring the children of non-Air Force personnel; (e) the school has not selected any body from non-Air Force category which is clearly violating the conditions as incorporated in advertisement. This action is arbitrary and discriminatory; (d) the petition under Article 226 is maintainable in view of the settled position of law as held by the judgment of the Supreme Court as reported in Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors., , to reiterate the proposition that a writ can be issued to the school in the facts of the present case.
(4) On the other hand, the learned Counsel for the respondents had cited judgments as reported in Tekraj Vasandi @, K.L. Busandhi v. Union of India & Ors., ; Chander Mohan Khanna v. The National Council of Educational Research & Training & Ors., , and Miss Mona Dhand v. The State of Rajasthan 6- Ors., , to argue that a private recognised unaided school and an educational society registered under Societies Registration Act cannot be held to be State or instrumentality of State and made amenable to writ jurisdiction under Article 226 of the Constitution of India. It will not be necessary for this Court, in the facts of the present case, to deal with the above contentions elaborated as except to say that the Court is empowered to issue directions in the interest of justice and not to send the parties to any other Forum at this stage. Reference may be made to the judgment of the Supreme Court as reported in Raj Soni v. Air Officer Incharge Administration & Anr., .
(5) Similarly, in the decision of this Court as reported in Miss Payal Gupta v.Lt.Governor of Delhi & Ors., 1994 Iii AD(Delhi)1119,it was held that recognised school governed by Education Act and Rules cannot have its own criteria of admission and it is always open for the Court in a petition under Article 226 of the Constitution of India to set aside the same as arbitrary, unreasonable and irrational. This judgment was subsequently approved by the Supreme Court in Principal, Cambridge School & Anr. v. Payal Gupta (MS) & Ors., .
(6) The judgment in Unni Krishnan, J.P. & Ors. (supra) clearly establishes that the Educational Institutions discharged a public duty and it is required for them to act fairly. Paragraphs 77, 78 and 79 are cited in this regard :
"77.As a sequel to this, an important question arises: what is the nature of functions discharged by these institutions ? They discharge a public duty. If a student desires to acquire a degree, for example, in medicine, he will have to route through a medical college. These medical colleges are the instruments to attain the qualification. If, therefore, what is discharged by the educational institution is a public duty, that requires duty to act fairly. In such a case, it will be subject to Article 14. 78. Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvama Jayanti Mahotsav Samarak Trust v. V.R. Rudani, is an interesting case where a writ of mandamus was issued to a private college. In paragraph 12 at page 697 it was held:
"12.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: (a) Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain & (b) Dipak Kumar Biswas v. Director of Public Institution. In the first of the two cases, the respondent-institution was a Degree College managed by a registered cooperative 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 Cooperative 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 a 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."
AT paragraphs 15 to 20 it was held : "15. 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 cither 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 to 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.
16.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 omissions with a view to evolving a simpler and more effective procedure'. The 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 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 hand 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 clone and are doing."
17.There, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The 'public authority' for them mean every body which is created by statute-and whose powers and duties are defined by 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 writ in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writ can be issued to 'any person or authority'. It can be issued 'for the enforcement of any of the fundamental rights for any other purpose'.
18.Article 226 reads: 226. Power of High Courts to issue certain writs-(1) Notwithstanding anything in Article 32, 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 of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part Iii and for any other purpose.'
19.The scope of this article has been explained by Subba Rao, J. in Dwarkanath v. ITO: "This Article is couched in comprehensive phraseology, and it ex fade 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 reliefs to meet the peculiar and complicated 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 country like England with a unitary form of Govern men t into a vast country like India functioning under federal structure. Such a construction defeats the purpose of the article itself.'
20.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 rights 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 owned 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."
79.The emphasis in this 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 form Article 12. Inspite of it, if the emphasis is on the nature of duty on the same principle, it has to be held that these exceptiona institutions discharge 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."
In view of the settled position of law as stated above, the writ petition under Article 226 can be entertained on present facts and the objection of the respondents is not sustainable.
(7) The record had been produced before me and the children in these PETITIONS have obtained marks in the admission test as follows: (a) Kunal Sabharwal 90 (b) Kiku Lal 88 (e) Nitesh Ahlawat 92 (d) Jayant Sehgal 92 (e) Nivediata Malik 92 (f) KashikaYadav(CW 2373/96) 16 (8) The learned Counsel for the respondents has fairly conceded that the respondent school has admitted some students who have secured lesser number of marks in comparison to the children mentioned at Serial Nos. (a), (b), (e) and (d) as cited above who have been denied admission to K.G. class. In this view of the matter, one course which is open is to quash the entire selection and to direct the respondent school to hold fresh test. This may not be in the interest of justice and will cause inconvenience and hardship to the children who are already admitted and studying. Part of the Session has already ended and the students are young children in the age group of 4-6 years. It is open for this Court to mould the relief which may be necessary in the interest of justice taking into account the facts of each case.
(9) The learned Counsel for the petitioners does not press any relief so far as Jayant Sehgal is concerned. He only seeks admission for the children whose names are mentioned at Serial Nos. (a), (b) and (c) i.e. Kunal Sabharwal, Kiku Lal and Nitesh Ahlawat, Nivediata Malik and Kashika Yadav, in any case, will not be entitled to admission as they have secured lesser marks as compared to the students who are already admitted. Therefore, it will not be necessary to quash the entire selection which will cause unnecessary hardship to the children who are already admitted and are not before this Court to contest the present proceedings.
(10) For the aforesaid reasons the respondents are directed to admit the children whose names are cited at Serial Nos. (a), (b) and (c). The petitions of Nivediata Malik and Jayant Sehgal (C.W. No. 966/96) and Kashika Yadav (C.W. 2373/96) are dismissed in view of the reasons as indicated above. There will be no order as to costs.