Madras High Court
P.Jeyachandran vs The Director Of Technical Education on 6 January, 2010
Author: S. Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.01.2010
CORAM
THE HON'BLE MR. JUSTICE S.MANIKUMAR
W.P.No.5843 of 2001
P.Jeyachandran ... Petitioner
vs
1. The Director of Technical Education,
Chennai-25.
2. The Management of Annai Velankanni
Polytechnic, Anguchettypalayam,
Panruti 607 106.
Cuddalore District.
3. The Correspondent,
Annai Velankanni Polytechnic,
Anguchettypalayam,
Panruti 607 106.
Cuddalore District. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the order of the third respondent, dated 10.08.2000, quash the same and direct the respondents to reinstate the petitioner as Librarian in the second respondent institution with full backwages, continuity of service and all other attendant benefits.
For Petitioner ... Mrs.R.Gouri
For 1st Respondent ... Mr.P.Subramanian,
Addl. Govt. Pleader
For Respondents 2 & 3 ... Mr.U.M.Ravichadran
O R D E R
Being aggrieved by the order of dismissal, dated 10.08.2000, passed by the Correspondent of Annai Velankanni Polytechnic, second respondent, the petitioner has filed the present Writ Petition. Consequently, he has prayed for a direction to the respondents to reinstate him as Librarian in the second respondent-Institution, with full backwages, continuity of service and all other attendant benefits.
2. Facts leading to the Writ Petition are as follows:
The second respondent-Polytechnic has been established by Annai Velankanni Educational and Social Socieity for imparting education by conducting Diploma courses. By G.O.Ms.No.946, Education Department, dated 09.07.1996, the Government have granted permission to establish the second respondent-Polytechnic. Initially, on 07.10.1997, the petitioner was appointed as Lab Attender in the second respondent-Poytechnic. He is a Science Graduate with B.Ed., qualification and subsequently, he has passed M.A. (Tamil) and Post Graduate Diploma in Journalism and Certificate Course of Library and Information Science. Lateron, he was appointed as Librarian. During 1998, a dispute arose between the Members of the Educational Society, which resulted in a group of members, filing a suit against one Mr.A.Peter, who claimed to be the Correspondent of the second respondent-Polytechnic and for a declaration to declare that he is not entitled to hold the Office of Presidentship of the Society or in the alternative to remove him from the Office. The matter came on appeal before this Court in A.S.No.273 of 1994. During the pendency of the appeal, one Panduranga Chittiar, claiming himself to be the receiver of the second respondent-Polytechnic committed several misdeeds and the petitioner was one of the victims. The said Panduranga Chettiar, by order, dated 21.09.1998, without issuing notice and without affording any opportunity of hearing to the petitioner, terminated him from service. The petitioner as well as other teaching and non-teaching staff, have objected to the illegal order. Therefore, it was unconditionally withdrawn. Consequently, a charge memo, dated 10.06.1999, was issued to the petitioner, alleging certain acts of misconduct. Though an explanation was submitted, without considering the same in proper perspective, one Mr.S.Nagarajan, Advocate was appointed as an enquiry officer. On receipt of the enquiry notice, dated 14.06.1999, informing the petitioner that the enquiry proceedings would be commenced on 26.06.1999 at 3.00 P.M., the petitioner, by his letter, dated 23.06.1999, requested permission to engage an Advocate to assist him in the enquiry proceedings. A reminder, dated 06.07.1999 was also sent. However, his request was refused on 10.07.1999. Thereafter, the petitioner, by letter, dated 17.07.1999, requested for copies of documents and reiterated his earlier request for engaging an Advocate. Though the representation, dated 17.07.1999, was received by the enquiry officer on 20.07.1999, there was no further communication. Therefore, the petitioner was constrained to send a legal notice, dated 13.01.2000. But there was no response. The second respondent-Polytechnic, vide proceedings, dated 10.08.2000, informed the petitioner that he has been removed from service, in view of the fact that he had not come for compromise and therefore, the enquiry officer had proceeded with exparte and accordingly, given a report. Though the petitioner submitted an appeal, the Director of Technical Education, Chennai, first respondent, the said authority, by his letter, dated 11.02.2000, informed the petitioner that since the second respondent-Polytechnic is a self-financing polytechnic, they have no control over the teaching and non-teaching staff. Left with no other option, the petitioner has approached this Court for the relief as stated supra.
3. Assailing the impugned order, learned counsel for the writ petitioner submitted that when the Correspondent has relied on a report, said to have been submitted by the enquiry officer, on 02.06.2000, copy of the same ought to have been furnished to the writ petitioner, so as to enable him to submit his further representation on the findings. She further submitted that though the petitioner was alleged to have committed certain acts of misconduct, there is absolutely no oral and documentary evidence let in before the enquiry and that the enquiry officer has arbitrarily proceeded on the basis that since some of the persons had already come forward to compromise and when the petitioner had failed to appear, there was no need to wait for him and on that score, drawn up an exparte enquiry report. She further submitted that the approach of the enquiry officer is unknown to service jurisprudence and that there is total non-application of mind by the enquiry officer in arriving at the guilt of the petitioner, which has been blindly accepted by the second respondent-Polytechnic.
4. Learned counsel for the petitioner further submitted that both the enquiry officer as well as the second respondent have failed to adhere to the rudimentary principles of providing a fair and reasonable opportunity to the petitioner and therefore, the findings are wholly perverse. Taking this Court through the impugned order, she further submitted that the petitioner was not given any reply or information regarding refusal of engagement of an advocate in the enquiry proceedings and the permission to engage a co-worker. In the absence of any specific details in the impugned order, she submitted that it is manifestly clear that the petitioner was not given any opportunity and that the enquiry officer has erroneously and in a hurriedly manner, had drawn up the report and mere reading of the enquiry report, would show the hastiness in preparation of an adverse report against the petitioner. In support of her contention that non-furnishing of the copy of the enquiry officer's report, would amount to violation of the principles of natural justice, she placed reliance on the decisions in Hiran Mayee Bhattacharyya v. Secretary, S.M.School for Girls reported in 2002 (10) SCC 293, S.B.I., and others v. Arvind K.Shukla reported in 2001 (3) SCC 765, C.Masanam v. Chief Educational Officer, Madurai and another reported in 2000 Writ. L.R. 898 and M.Natanam v. The Assistant Commissioner, HR & CE, reported in 1999(III) CTC 657.
5. As regards the objections of maintainability of the Writ Petition, learned counsel for the petitioner submitted that the Writ Petition was filed in the year 2001 and now after eight years, the respondent-Polytechnic has raised an objection regarding the maintainability, which according to her, is liable to be rejected in limini for the reasons that Courts have consistently held that Writ against an unaided institutions is also maintainable. According to her, when violation of principles of natural justice are per se apparent, Courts have always entertained Writs, without driving the parties to take recourse to an alternative remedy, if there is any. In support of her contention, she placed reliance on the following decisions, viz., Ramdeo Baba Kamala Nehru Engineering College v. Sanjay Kumar reported in 2002 (10) SCC 487, John Paulraj A.P. v. CBSE, Chairman, New Delhi, reported in 1999 (III) LLJ (Supp.) 628, Sendhilkumar v. Shri Angalamman College of Engg., & Technology reported in 2009 (3) MLJ 774, L. Nageswaran v. State of T.N., reported in 2009 (1) MLJ 729 and The Governing Council of American College v. The Director of Collegiate Education, reported in 2009 (4) CTC 401.
6. Mr.U.M.Ravichandran, learned counsel for the respondent-Polytechnic, restricted his submission only with regard to maintainability of the Writ Petition on the ground that the second respondent-Institution is a self-financing institution, not a creature of any statute and therefore, that would not come under the ambit of "State or authority" and amenable to the Writ jurisdiction. He does not make any objections regarding violation of principles of natural justice.
7. Placing strong reliance on a decision of the Supreme Court in Executive Committee of Vaish Degree College, Shamli and others v. Lakshmi Narain and others reported in 1976 (2) SCC 58, learned counsel for the respondents submitted that the college, is neither created under any statute or owes its existence to any statute. According to him, merely because, the government have given permission to start a self-financing polytechnic, not in exercise of the powers under any statute, it cannot be brought within the ambit of State or Authority, under Article 12 of the Constitution of India. He further submitted that the respondent-Polytechnic, is an unaided institution and therefore, when the Director of Technical Education, Chennai, in his letter, dated 11.02.2000, has informed the petitioner that the Directorate has no role in the matter, relating to appointment, termination and other administrative functions, then the Government or any other authority have no pervasive control over the administration of the second respondent-Institution and therefore, it is not amenable to Writ jurisdiction. He also submitted that the decision in Andi Mukta Satguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R.Rudani and others reported in 1989 (II) LLJ 324, has been rendered by two Judges Bench of the Supreme Court, without considering the earlier decision of the Apex Court in Executive Committee's (cited supra), decided by a larger bench.
8. Learned counsel for the petitioner submitted that Executive Committee's case decided by three Judges Bench of the Supreme Court, was not taken note of by the Apex Court in Andi Mukha's case (cited supra), decided by two Judges Bench and therefore, the view expressed by the Larger Bench, so far as maintainability of the Writ Petition against a self-financed Institution, not created by a Statute has to be considered by this Court.
9. Placing reliance on a decision in Union of India v. K.S.Subramanian, reported in AIR 1976 SC 2433 and The State of U.P., v. Ram Chandra Trivedi reported in 1976 (4) SCC 52, learned counsel for the second respondent-Polytechnic, further submitted that as per law of precedents, when there is conflict between two views expressed, by the Supreme Court, the proper course for the High Court in such a case, would be to try and find out the opinion expressed by the Larger bench of the Supreme Court, in preference to those similar benches. Therefore, he insisted that the views expressed in Executive Committee's case (cited supra) has to be applied to the facts of this case, as it is appropriate.
Heard the learned counsel for the parties and perused the materials available on record.
10. In view of the limited submissions, the only point to be considered by this Court is whether a Writ Petition against a self-financed college/polytechnic, not a creature of a Statute, is maintainable in law. If the answer if yes, then the Writ Petition has to be allowed on the ground of violation of principles of natural justice, as there is no dispute over the same. Let me consider some of the decisions of various Courts and Supreme Court, where the maintainability aspect has been considered.
11. In Executive Committee of Vaish Degree College, Shamli and others v. Lakshmi Narain and others reported in 1976 (2) SCC 58, the appellant-Executive Committee was a degree college in the district of Muzaffarnagar registered under the Societies Registration Act, 1860, as an institution for imparting education. The affairs of the college were managed by the Executive Committee of the Vaish College. The college was affiliated to the Agra University and consequently, the College was agreed to be governed by the provisions of the Agra University Act and the statutes and ordinances made thereunder. With the establishment of the Meerut University, the Vaish College got affiliated to the Meerut University. The College Committee terminated the services of a member of the College, by passing a resolution. A suit was filed in the District Munsif Court, challenging termination. The defence was that the Executive Committee was not a statutory body and not bound under the University Act. The suit was dismissed, holding that the Executive Committee was not a statutory body and not bound by the statutes. On appeal, the first Additional Civil and Sessions Judge, Muzaffarnagar, reversed the decision. In the second appeal, a learned Single Judge referred the case to Full Bench for framing the following issues, "Can the civil Court grant the relief of injunction in view of the facts and circumstances of the present case?". A Full Bench of the Allahabad High Court held that the Executive committee of Vaish college, being a statutory body, is bound by the provisions of the University and the statutes made thereunder. The Full Bench held that the termination of the members, without obtaining prior approval, as illegal. The Committee, which took the matter on appeal before the Supreme Court, inter alia contended that it was not a statutory body and therefore, the termination of the services of the respondent-employee would be governed by the usual master and servant relationship. The Supreme Court, while considering the distinction between a body, which is created by a Statute and a body, which after having come into existence is governed in accordance with the provisions of the Statute, held that, the Executive Committee is not a statutory body.
12. In the above reported judgment relied on by the learned counsel for the respondent-polytechnic, the issue as to whether a Writ Petition is maintainable against an institution, discharging public duty of imparting education, was not a question posed before the Supreme Court. The question adjudicated was, whether an Executive Committee of a private college was a statutory body or not, merely because, it was affiliated by the University or regulated by the University act or the Statutes thereunder.
13. In N.K.Ramiah v. Yadava Kalvi Nithi. Regd. Socy., reported in AIR 1985 Mad. 211, the issue was whether a private college committee consisting of seven members nominated by the Principal of the College, two senior most professors of the College and one nominated by the University, to which, it was affiliated and over whose affairs the Government had no control and the institution not being a creature of a statute, was an 'authority' within the meaning of Article 12 of the Constitution of India and amenable to Writ jurisdiction of the High Court. In the above said judgment, this Court held that, Merely because the College Committee was constituted by reason of the provision under Section 11 of the Tamil Nadu Private Colleges (Regulation) Act and in the manner provided by Rule 8 of the Rules framed under Section 53 of the Act would not mean that it was an instrumentality or agency of the Government, so as to be called an 'authority' within the meaning of the Article."
Insofar as the above decision is concerned, there is absolutely no quarrel over the preposition that State Government is not having any direct control over the affairs of the College Committee and certainly, it is an instrumentality or agency of the Government.
14. In Andi Mukta Satguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R.Rudani and others reported in 1989 (II) LLJ 324, the appellant was a Science College run by a Public Trust, affiliated to Gujarat University. The dispute between the University Area Teachers Association and the University about implementation of pay scales was referred to the Chancellor of the University for decision. Instead of implementing the award of the Chancellor as accepted by the University and the State Government, the Trust served notice of termination on 11 teachers on the ground that they were surplus and applied to the University for permission to remove them. Since the Vice-Chancellor did not grant permission, the Trust took a decision to close down the college. Accordingly, the affiliation of the college was surrendered and that the college was closed without approval of the University. The services of all academic staff were terminated and the terminal benefits were not paid. A Writ petition was filed claiming terminal benefits and arrears of salary and that the writ petition was allowed. Hence, SLP was filed by the appellant-Trust. While considering the issue as to whether a Writ Petition would lie against the Management and College, a private body, the Supreme Court, at paragraphs 20 and 22, held as follows:
"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. (para 20) Mandamus cannot be denied on the ground that the duty to be enforced is not imposed by charter, common law, custom or even contract. Judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should no come in the way of granting that relief under Article 226. (para 22)"
15. While considering the objection regarding maintainability of a Writ Petition filed against the appellant, the Supreme Court, at Paragraphs 14 and 15, held as follows:
"There is no plea for specific performance of contractual service. The teachers are not seeking a declaration that they be continued in service. They are not asking for mandamus to put them back into the college. They are claiming only the terminal benefits and the arrears of salary payable to them. 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. Once these are absent and when the party has no other equally convenient reedy, mandamus cannot be denied. To the Trust managing the affiliated college, public money is given as government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Governmental 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 Institution is not devoid of any public character. So are the service conditions of the academic staff. Their service conditions are not purely of a private character and such service conditions 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. (Paras 14 and 15)
16. In Miss Payal Gupta v. Lt. Governor of Delhi & others, 1994 III AD (Delhi) 1119, a Division Bench of the High court dealt with the case of a student who was denied of admission by a private school. While dealing with the objections regarding maintainability of the writ petition, the Division Bench held as follows:
"The question whether a writ could lie against a recognised unaided school is no longer res integra. It was contended by Mr.Kaul that the Cambridge School was not a State and that it was run by a society registered under the Societies Registration Act. Jurisdiction of this Court under Article 226 of the Constitution is not confined to the authority which is a State within the meaning of Article 12 of the Constitution. In Kuldip Mehta Vs. Union of India and others, 1993 (2) Delhi Lawyers 196, this Court has taken the view that Article 226 also speaks of directions and orders which can be issued to any person or authority. In that case a writ was issued against a public limited company which had nominees on its Board of Directors from the National Textile Corporation Limited, a Government company. In Dwarka Nath Vs. Income-tax Officer, Special Circle D Ward, Kanpur and another, [AIR 1966 SC 81], referring to the scope of Article 226 of the Constitution, the court observed as under:
"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. In enables the High Courts to mould the reliefs to meet the peculiar and complicated requirement of this country. Any attempt to equate the scope of the power of the High Court under Art. 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 to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicitly in the article and others may be evolved."
17. In Shri V.S.Rahi v. The Lt. Governor of Delhi & others [1994 IV AD (Delhi) 1190], A Division Bench of the Delhi High Court considered the question as to whether a teacher working in a private school can maintain a writ petition for pension. At Paragraph 5, the Division Bench held as follows:
"Primarily two questions require to be considered; (i) Whether the petitioner can invoke the writ jurisdiction to seek a relief which is certainly against a private school; and (ii) Whether petitioner is entitled to the benefit of pension as contended by him. The first question need not detain us long in view of the decision of the Supreme Court in Miss Raj Soni Vs. Air Officer in charge Administration and Another, [1990 (3) SCC 261] in the said case, the Supreme Court entertained a petition filed by a teacher under Article 32 of the Constitution, against a private school which was not receiving any aid, to enforce the provisions of the Act and the Rules, and granted her the benefit of the age of retirement as 60 years, while, under the rules of the school she was to retire at the age of 58 years."
18. In Rakesh Gupta v. State of Hyderabad reported in AIR 1996 AP 413, the Division Bench of the Andra Pradesh High Court has considered the scope and extent of power under Article 226 of the Constitution of India and use of the word or expression "any person or authority" occurring under Article 226 of the Constitution of India. While discussing the scope of Article 226, the Court held as follows:
"the language used in Art. 226 of the Constitution of India shows, that the Court has got 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 or 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 of the Constitution and for any other purpose. The words "to any person or authority" and the words "for the enforcement of any of the rights conferred by Part III and for any other purpose" leave no scope to question the authority of the Court to issue a writ even to a private person; whether it is a living being or a legal entity as a juridical person. .....It is, however, not unknown that exceptions have been made by the Courts and such exceptions are found justifiable for reasons of the conduct of the parties which on the one hand appeared to affect only a private law, but on the other hand has effect upon the action in rem."
19. Division Bench of the Andra Pradesh High Court further observed as follows:
"The word 'authority' in Article 226 of the Constitution of India is not restricted to the same meaning as the words 'other authorities' should receive in the definition of the 'State' in Article 12 of the Constitution of India. The former must receive a liberal meaning. The latter is relevant only for the purpose of enforcement of fundamental rights. The High Court's power under Article 226 of the Constitution, however, unlike the power of the Supreme Court under Article 32 of the Constitution is more pervasive in the sense that it can issue writs for enforcement of 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 that 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; and The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartments. It should remain flexible to meet the requirements of various circumstances.
20. In K.Krishnamacharyulu v. Sri Venkateswar Hindu College of Engineering reported in 1997 (3) SCC 571, the appellant and six others were appointed on daily wages to the post of Lab Assistant as non-teaching staff in the respondent-private college. The Writ Petition and Appeal seeking equal pay were dismissed. Aggrieved by the same, they moved the Apex Court. The question which came up for consideration before the Supreme Court was when there were no statutory rules issued regarding pay scales to be fixed on par with the Government employees and the private Institution, being not in receipt of any grant-in-aid, whether the Writ Petition under Article 226 of the Constitution is maintainable? The Supreme Court, at Paragraph 4, answered the question as follows:
"It is not in dispute that executive instructions issued by the Government have given them the right to claim the pay scales so as to be on a par with the government employees. The question is when there are no statutory rules issued in that behalf, and the institution, at the relevant time, being not in receipt of any grants-in-aid; whether the Writ Petition under Article 226 of the Constitution of India is not; maintainable? In view of the long line of decisions of this Court holding that when there is an interest created by the Government in an institution to impart education, which is a fundamental right of the citizens, the teachers who impart the education get an element of public interest in the performance of their duties. As a consequence, the element of public interest requires regulation of the conditions of service of those employees on a par with government employees. In consequence, are they also not entitled to the parity of the pay scales as per the executive instructions of the Government? It is not also in dispute that all the persons who filed the Writ Petition along with the appellant had later withdrawn from the Writ Petition and thereafter the respondent Management paid the salaries on a par with the government employees. Since the appellants are insisting upon enforcement of their right through the judicial pressure, they need and seek the protection of law. We are of the view that the State has obligation to provide facilities and opportunities to the people to avail of the right to education. The Private Institutions cater to the need of providing educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the orders issued by the Government. The question is as to which forum one should approach. The High Court has held that the remedy is available under the Industrial Disputes Act. When an element of Public Interest is created and the Institution is catering to that element the teacher, being the arm of the Institution, is also entitled to avail of the remedy provided under Article 226 the Jurisdiction part is very wise. It would be a 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 a par with government employees under Article 39(d) of the Constitution."
21. In P.A.M. Sundaravel v. Chief Educational Officer and two others, reported in 1998 Writ L.R. 565, a student sought for a Mandamus directing the respondents to select him for 11th Standard computer course during the year 1997-98 in a Private School recognised by the State Government. One of the objections was to the maintainability of the Writ Petition against the private institution. After considering the element of public duty involved in imparting education, this Court, at Paragraphs 8 and 10, held as follows:
"The school is a recognised one and is also governed by relevant Statute. Its activities are also controlled by first respondent, though the actual management is by the Board as per its own Bylaws. The School, while discharging its duties as per statute, and that too, while it is imparting education to children at large, cannot be said as not discharging a public duty. Though it is a private institution, it discharges a public function governed by relevant statutes, subject to the control of the Statutory authorities. Except for the Computer course, financial aid is also received from Government.
A writ can be issued the respondents and the first respondent is duty bound to see that the petitioner's son is not denied admission as he is legally entitled to the same."
22. The Division Bench of this Court in John Paulraj A.P. v. CBSE, Chairman, New Delhi, reported in 1999 (III) LLJ (Supp.) 628, considered a case as to whether a Writ Petition filed against an unaided educational institution can be brought within the ambit of Article 12 of the Constitution of India. In the said case, the appellant was terminated from service, without proper reasons. A learned single Judge, who adjudicated the validity of the said order, dismissed the Writ Petition, agreeing with the contention of the School that an unaided private school is not amenable to Writ jurisdiction, since it is not a State or instrumentality of the State within the ambit of Article 12 of the Constitution of India. Before the appeal, it was contended inter alia that availing grant or aid from the Government cannot by itself, be a deciding factor for holding that a Writ Petition as maintainable. Taking into consideration, the nature of public duty, i.e., imparting of education to the students at large, as envisaged under Article 41 of the Constitution of India and after considering a catena of decisions, the Division Bench held that a Writ would lie against unaided private educational institution also, if an element of public interest and a corresponding public duty is attracted in the proceedings sought to be challenged in such Writ Petition.
23. A passage from the judgment in Unni Krishnan, J.P. v. State of Andra Pradesh reported in AIR 1993 SC 2179, extracted in John Paulraj's case, would be useful and the same is reproduced hereunder:
"The fact that these institutions perform an important public function coupled with the fact that their activity is closely intertwined with governmental activity, characterises their action as 'State action'. At the minimum, the requirement would be to act fairly in the matter of admission of students and probably in the matter of recruitment and treatment of its Employees as well.
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."
24. In Ramdeo Baba Kamala Nehru Engineering College v. Sanjay Kumar reported in 2002 (10) SCC 487, students asked for refund of tuition fees and caution deposit paid by them. The same was denied and they preferred a Writ Petition. The High Court allowed the same, directing the appellant-Engineering College to refund the amount. Overruling the objections raised by the College that the High Court should not entertain a Petition under Article 226 of the Constitution of India and declaring the law, the appellant-College is amenable to Writ jurisdiction, the Supreme Court, at paragraph 5, held that, "The respondent had sought admission against a payment seat. In the event of the admission being cancelled at the behest of either side, the caution money ad the tuition fee were liable to be refunded subject to the permissible deductions. We do not deem it appropriate to uphold the technical plea of the appellants and drive the respondent student to the need of filing a civil suit. The view taken by the High Court is just and equitable and therefore need not be interfered with."
25. In G.Bassi Reddy v. International Crops Research Instt., reported in AIR 2003 SC 1764, the Supreme Court considered as to whether the International Crops Research Institute (ICRISAT), is a state or an authority amenable to the Writ Jurisdiction under Article 226. While considering the object of setting up the above said research centre, the Supreme Court observed as follows:
The object of setting up ICRISAT was to help developing countries in semi-arid tropics to alleviate rural poverty and hunger in ways that are environmentally sustainable. The developing countries include India, parts of south-Asian, sub-Saharan and South and Eastern Africa and parts of Latin America. The object was sought to be achieved by research and development of scientific technologies which could improve the quantity and quality of sorghum (bajra), pearl and finger millet, pigeon peas, chick peas and ground nut. The facts of the above reported case are that ICRISAT was staffed by persons from 22 nations, including India who work in Asia, Africa and Latin America. Insofar as the administration and governance is concerned, a memorandum of agreement was entered into between the Government of India and Ford Foundation (acting on behalf of the Consultative Group) on 28th March 1972, by which, the Institute shall be established in India as an autonomous, international philanthropic, non-profit, research, educational, and training organisation. The Institute has to be administered by a Director, who shall be selected by the Governing Board. Besides, the Board shall be responsible for development and/or approval of the Institute's programmes and policies under which the institute operates and it shall be responsible for selection and employment of the Director, and shall approve the appointment of the senior staff members on the recommendation of the Director. In addition to that, under Clause 6(2) of the agreement, the Governing Board was given authority under the agreement to establish the terms and conditions of employment for junior scientists, technicians, clerical, administrative and operational support personnel. The conditions of employment were expected "to more nearly approximate accepted norms of the host country, with such modifications as may be necessary. Guidelines known as Personnel Policy Statements relating to the services of the personnel were also formulated by ICRISAT and procedures were framed regarding disciplinary action. The appellant before the Supreme Court was issued with a show cause notice, calling for explanation for certain acts of misconduct. Following an enquiry, he was terminated from service. When the said order was challenged, it was opposed on the ground of maintainability. Testing the maintainability on the principles as to whether the said institution was financially, functionally or administratively dominated by or under the control of the Government and whether the contract stated supra is pervasive or merely regulatory, the Supreme Court on the facts of this case, found that ICRISAT is not a State or an authority, as it was neither the wing of the Government nor it was accountable to the Government. In such context, the Supreme Court held that "ICRISAT is not a State".
26. In Islamic Academy of Education v. State of Karnataka reported in AIR 2003 SC 3724, the petitioners therein were mostly unaided professional educational institutions, both minority and non-minority. It was inter alia contended that the private unaided professional educational institutions, had been given complete autonomy not only as regards admission of students, but also determination of their own fee structure. It was also contended that these institutions could fix their own fee structure, which could include a reasonable revenue surplus for purposes of development of education and expansion of the institution, and that so long as there was no profiteering or charging of capitation fees, there could be no interference by the Court. Per contra, on behalf of the Union of India, various State Governments and some students, who sought to intervene, it was submitted that right to set up and administer an educational institution was not an absolute right, and this right is subject to reasonable restrictions and that, this right is subject (even in respect of minority institutions) to national interest. It was further submitted that imparting education was a State function, but, due to resources crunch, the States were not in a position to establish sufficient number of educational institutions. Though the issue was with regard to fee structure, the Supreme Court also considered as to whether the Government is denuded of its power to lay down any law, just because the Institutions were once recognised or affiliated to the examining body. At Paragraphs 217 and 219, the Supreme Court, held as follows:
"Although the minorities have a right to establish institutions of their own choice, they admittedly do not have any right of recognition or affiliation for the said purpose. They must fulfill the requirements of law as also other conditions which may reasonably be fixed by the appropriate Government or the University. (para 217) It cannot be said that once recognition has been granted, no further restriction can be imposed. There exist some institutions in this country which are more than a century old. It would be too much to say that only because an institution receives recognition/affiliation at a distant point of time the appropriate Government is denuded of its power to lay down any law in imposing any fresh condition despite the need of change owing to passage of time. Furthermore, the Parliament or the State Legislature are not denuded of its power having regard to restrictions that may satisfy the test of Clause (6) of Article 19 of the Constitution of India or regulations in terms of Art. 30 depending upon the national interest/public interest and other relevant factors. However, the State/University while granting recognition or the affiliation cannot impose any condition in furtherance of its own needs or in pursuit of the Directive Principles of State Policy. (para 218 and 219)"
27. In Sushmita Basu v. Ballygunge Siksha Samity and others in 2004 (4) LLN 195 (SC), the teachers of a recognised Private School filed a Writ Petition for implementation of the third pay commission. The management, though implemented the recommendations of the third pay commission in the sense that the salaries of the teachers were hiked in terms of the said report, the institution refused to give retrospective effect to the enhancement. In otherwords, the institution refused to give effect to the recommendations of the Third Pay Commission with effect from 1st January 1988, as recommended by the Commission and as implemented by the Government. Though the Supreme Court, accepted the views expressed earlier in K.Krishnamacharyulu and others v. Sri Venkateswara Hindu College of Engineering and another reported 1997 (3) SCC 571, that interference under Article 226 of the Constitution of India for issuing the Writ against the Private Institution like the first respondent therein would be justified if Public law element is involved and in Private law remedy, no Writ Petition would lie and Writ of Mandamus cannot be issued to recognised Private School to fix the salaries to teaching and non-teaching staffs to remove all the anomalies. The Supreme Court, on principle, has affirmed the dictum that Writ Petition would lie against Private Educational Institution, but disallowed the claim of the teachers for giving retrospective effect to the pay fixation.
28. In P.A. Inamdhar v. State of maharastra reported in 2005(6) SCC 537, the Supreme Court after considering a catena of decisions dealt with the right of educational institution in fixing the fee structure and its autonomy, at para 89 held that "89. Education, accepted as a useful activity whether for charity or for private is an occupation. Nevertheless, it does not cease to be a service to Society. And even though an occupation, it cannot be equated to a trade or a business".
29. In Binny Ltd.,v. Sadasivan reported in 2005 (6) SCC 657, the maintainability of a Writ Petition against private employers, was the moot question. The Supreme Court, after considering a catena of decisions, held that a Writ of Mandamus or remedy under Article 226 of the Constitution of India, though pre-eminently a public law remedy, is available against a private body or a person, if (a) such private body is discharging public function, (b) a decision sought to be corrected or enforced is in discharge thereof and (c) public duty imposed is not of a discretionary character. The Supreme Court further held that the scope of mandamus is determined by the nature of duty to be enforced rather than the identity of the authority, against whom it is sought. While explaining what is public function, the Apex Court, held that a body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies, therefore exercise public function, when they intervene or participate in social or economic affairs in the public interest. The Dictum of the Supreme Court is explained in Paragraphs 9 to 11 and 29 and the same is extracted hereunder:
"9. The superior courts supervisory jurisdiction of judicial review is invoked by an aggrieved party in myriad cases. High Courts in India are empowered under Article 226 of the Constitution to exercise judicial review to correct administrative decisions and under this jurisdiction the High Court can issue to any person or authority, any direction or order or writs for enforcement of any of the rights conferred by Part III or for any other purpose. The jurisdiction conferred on the High Court under Article 226 is very wide. However, it is an accepted principle that this is a public law remedy and it is available against a body or person performing a public law function. Before considering the scope and ambit of public law remedy in the light of certain English decisions, it is worthwhile to remember the words of Subba Rao, J. expressed in relation to the powers conferred on the High Court under Article 226 of the Constitution in Dwarkanath v. ITO, 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 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 like England with a unitary from of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.
10. The writ of mandamus lies to secure the performance of a public or a statutory duty. The prerogative remedy of mandamus has long provided the normal means of enforcing the performance of public duties by public authorities. Originally, the writ of mandamus was merely an administrative order from the Sovereign to subordinates. In England, in early times, it was made generally available through the Court of Kings Bench, when the Central Government had little administrative machinery of its own. Early decisions show that there was free use of the writ for the enforcement of public duties of all kinds, for instance against inferior tribunals which refused to exercise their jurisdiction or against municipal corporations which did not duly hold elections, meetings, and so forth. In modern times, the mandamus is used to enforce statutory duties of public authorities. The courts always retained the discretion to withhold the remedy where it would not be in the interest of justice to grant it. It is also to be noticed that the statutory duty imposed on the public authorities may not be of discretionary character. A distinction had always been drawn between the public duties enforceable by mandamus that are statutory and duties arising merely from contract. Contractual duties are enforceable as matters of private law by ordinary contractual remedies such as damages, injunction, specific performance and declaration. In the Administrative Law (9th Edn.) by Sir William Wade and Christopher Forsyth (Oxford University Press) at p.621, the following opinion is expressed:
A distinction which needs to be clarified is that between public duties enforceable by mandamus, which are usually statutory, and duties arising merely from contract. Contractual duties are enforceable as matters of private law by the ordinary contractual remedies, such as damages, injunction, specific performance and declaration. They are not enforceable by mandamus, which in the first place is confined to public duties and secondly is not granted where there are other adequate remedies. This difference is brought out by the relief granted in cases of ultra vires. If for example a minister or a licensing authority acts contrary to the principles of natural justice, certiorari and mandamus are standard remedies. But if a trade union disciplinary committee acts in the same way, these remedies are inapplicable: the rights of its members depend upon their contract of membership, and are to be protected by declaration and injunction, which accordingly are the remedies employed in such cases.
11. Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and the decision sought to be corrected or enforced must be in discharge of a public function. The role of the State expanded enormously and attempts have been made to create various agencies to perform the governmental functions. Several corporations and companies have also been formed by the Government to run industries and to carry on trading activities. These have come to be known as public sector undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court took the view that many of these companies and corporations could come within the sweep of Article 12 of the Constitution. At the same time, there are private bodies also which may be discharging public functions. It is difficult to draw a line between public functions and private functions when they are being discharged by a purely private authority. A body is performing a public function when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. In a book on Judicial Review of Administrative Action (5th Edn.) by de Smith, Woolf & Jowell in Chapter 3, para 0.24, it is stated thus:
A body is performing a public function when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. This may happen in a wide variety of ways. For instance, a body is performing a public function when it provides public goods or other collective services, such as health care, education and personal social services, from funds raised by taxation. A body may perform public functions in the form of adjudicatory services (such as those of the criminal and civil courts and tribunal system). They also do so if they regulate commercial and professional activities to ensure compliance with proper standards. For all these purposes, a range of legal and administrative techniques may be deployed, including rule making, adjudication (and other forms of dispute resolution); inspection; and licensing.
Public functions need not be the exclusive domain of the State. Charities, self-regulatory organisations and other nominally private institutions (such as universities, the Stock Exchange, Lloyds of London, churches) may in reality also perform some types of public function. As Sir John Donaldson, M.R. urged, it is important for the courts to recognise the realities of executive power and not allow their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted. Non-governmental bodies such as these are just as capable of abusing their powers as is Government.
29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsburys Laws of England, 3rd Edn., Vol. 30, p.682, 1317. A public authority is a body, not necessarily a county council, municipal corporation or other local authority, which has public or statutory duties to perform and which perform those duties and carries out its transactions for the benefit of the public and not for private profit. There cannot be any general definition of public authority or public action. The facts of each case decide the point."
30. In Zee Telefilms Ltd., v. Union of India reported in AIR 2005 SC 2677, the Supreme Court, while observing that Article 12 of the Constitution of India, must receive a purposive interpretation, at Paragraphs 75 and 76, held as follows:
"75. Article 12 must receive a purposive interpretation as by reason of Part III of the Constitution a charter of liberties against oppression and arbitrariness of all kinds of repositories of power have been conferred - the object being to limit and control power wherever it is found. A body exercising significant functions of public importance would be an authority in respect of these functions. In those respects it would be same as is executive government established, under the Constitution and the establishments of organizations funded or controlled by the Government. A traffic constable remains an authority even if his salary is paid from the parking charges inasmuch as he still would have the right to control the traffic and anybody violating the traffic rules may be prosecuted at his instance.
76. It is not that every body or association which is regulated in its private functions becomes a 'State'. What matters is the quality and character of functions discharged by the body and the State control flowing therefrom."
31. In Lt. Governor of Delhi v. V.K.Sodhi reported in AIR 2007 SC 2885, the Supreme Court considered as to whether State Council of Education, Research and Training (SCERT) is a State or not. At Paragraphs 11, 13 and 14, the Apex Court held as follows:
"The State Council of Education, Research and Training (SCERT) is not State or other authority, within meaning of Article 12. The two elements, one, of a function of the State, namely, the co-ordinating of education and the other, of the Council (SCERT) being dependant on the funding by the State, satisfied two of the tests indicated to constitute 'State'. But, from that alone it could not be assumed that SCERT is a State. It has to be noted that though finance is made available by the State, in the matter of administration of that finance, the Council is supreme. The administration is also completely with the Council. There is no governmental interference or control either financially, functionally or administratively, in the working of the Council. SCERT, in addition to the operation autonomy of the Executive Committee, it could also amend its bye-laws subject to the provisions of the Delhi Societies Registration Act though with the previous concurrence of the Government of Delhi. The proceedings of the Council are to be made available by the Secretary for inspection of the Registrar of Societies as per the provisions of the Societies Registration Act. The records and proceedings of the Council have also to be made available for inspection by the Registrar of Societies. In the case of dissolution of SCERT, the liabilities and assets are to be taken over at book value by the Government of Delhi which had to appoint a liquidator for completing the dissolution of the Body. The creditors' loans and other liabilities of SCERT shall have preference and bear a first charge on the assets of the Council at the time of dissolution. This is not an unconditional vesting of the assets on dissolution with the Government. It is also provided that the provisions of the Societies Registration Act, 1860 had to be complied with in the matter of filing list of office-bearers every year with the Registrar and the carrying out of the amendments in accordance with the procedure laid down in the Act of 1860 and the dissolution being in terms of Sections 13 and 14 of the Societies Registration Act, 1860 and making all the provisions of the Societies Registration Act applicable to the Society. These provisions indicate that SCERT is subservient to the provisions of the Societies Registration Act rather than to the State Government and that the intention was to keep SCERT as an independent body."
32. In L. Nageswaran v. State of T.N., reported in 2009 (1) MLJ 729, there was revision of fee structure in the middle of the academic year by a Matriculation School, managed by Bishop of Madras CSI Diocese. The primary objection was with regard to the maintainability of the Writ Petition. A learned Single Judge of this Court held that the Matriculation School, though minority in character, administered by Dioceses, is exercising a public function and as such, it is amenable to Writ jurisdiction.
33. In Sendhilkumar v. Shri Angalamman College of Engg., & Technology reported in 2009 (3) MLJ 774, a dismissed non-teaching staff of a private unaided college run by a private trust, challenged the order of dismissal. The main objection of the college was that it does not get any aid from the Government and therefore, the Writ Petition filed against them is not maintainable. Following the decisions in Andi Mukta Satguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R.Rudani and others reported in 1989 (II) LLJ 324, this Court has held that the entire educational institution as a whole should be held to be as one unit which discharges its public duty of imparting education to the students and therefore, there cannot be any distinction between teaching and non-teaching staff, while applying Article 226 of the Constitution of India. Holding that the Writ Petition as maintainable, this Court has set aside the impugned order.
34. In The Governing Council of American College v. The Director of Collegiate Education, reported in 2009 (4) CTC 401, the issue before the Division Bench of this Court was whether an aided minority college is amenable to Writ jurisdiction. Following the guidelines in Andi Mukta Satguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R.Rudani and others reported in 1989 (II) LLJ 324, and Secretary, Malankara Syrian Catholic College v. T.Jose reported in 2007 (1) SCC 386, the Division Bench, at Paragrahs 21 and 29, held as follows:
"21. At the outset, we wish to point out that the objection to the maintainability of the writ petition on the ground that the institution is a Society, does not hold water any more. Article 226(1) empowers this Court to issue directions, orders or writs to "any person or authority". Therefore even a Society is amenable to the writ jurisdiction, provided there is an element of public duty. In Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani [1989 (2) SCC 691], a Trust registered under the Bombay Public Trusts Act, was held amenable to the writ jurisdiction. It was held therein that when public money is paid as Government aid, the aided institutions discharge public functions and they become subject to the Rules and Regulations of the Affiliating University. Therefore, the Supreme Court opined that employment in such institutions is not devoid of any public character. Again in K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engineering [1997 (3) SCC 571], the Supreme Court held a writ filed even by the employees of unaided private educational institution as maintainable on the ground that the teachers get an element of public interest in the performance of their duties. Hence the contention that a writ against a Society is not maintainable, cannot be accepted as of universal application, especially since the institution in question in these appeals, receives grant-in-aid from the Government.
29. Thus, in Malankara, the Supreme court cleared all possible doubts, genuine or artificial, by holding in paragraphs 19 (iii) and 20 that any regulations to prevent exploitation or oppression of employees and any law intended to regulate the service conditions of employees of educational institutions, could not be construed as interfering with the right under Article 30(1). Therefore, the contention that an aided minority institution is not amenable to Article 226, especially in relation to the dismissal of a Principal, is just fanciful."
35. As regards judicial precedents, in Union of India v. K.S.Subramanian, reported in AIR 1976 SC 2433, the Supreme Court, held as follows:
"The proper course for a High Court is to try to find out and follow the opinions expressed by larger benches of the Supreme Court in reference to those expressed by smaller benches of the Court. That is the practice followed by the Supreme Court itself. The practice has now crystallized into a rule of law declared by the Supreme Court."
36. In The State of U.P., v. Ram Chandra Trivedi reported in 1976 (4) SCC 52, the Supreme Court, at Paragraph 22, held as follows:
"It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of this Court, it cannot disregard or skirt the views expressed by the larger benches. The proper course for a High Court in such a case, as observed by this Court in Union of India and Anr. v. K.S. Subramanian [(1977) I LLJ 5 (SC)] to which one of us was a party, is to try to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself."
37. Much reliance has been placed on paragraphs 80 and 82 of the judgement in Unnikrishnan's case (Five Judges) by the learned counsel for the second respondent in support of his contention that a private educational institution is not an instrumentality of a State. Again it should be noted that the question to be considered is whether an educational institution, performing a public duty is amenable to the jurisdiction of this Court or not. But the core objection of the leanred counsel for the second respondent is that private educational institution is not an instrumentality and therefore, the Writ Petition is not maintainable. Such a narrow approach cannot be made by Courts, considering the line of judgments of the Supreme Court dealing with the exercise of jurisdiction by High Courts under Article 226 of the Constitution of India.
38. While considering the applicability of the judgment to a given case, it has to be borne in mind that a decision ordinarily is a decision on the case before the Court while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. Hence while applying the decision to a later case, the court which is dealing with it should carefully try to ascertain the true principle laid down by the previous decision. A decision often takes its colour from the questions involved in the case in which it is rendered. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. Reference can be made to the decision of the Supreme Court in Prakash Amichand Shah v. State of Gyant reported in 1986 (1) SCC 581.
39. When a legal point as to whether a private educational discharging public duty is amenable to Writ jurisdiction is not specifically argued and decided, the judgment relied on by the learned counsel for the second respondent cannot be a precedent on that point. Executive Committee's case can be a precedent, insofar as the legal point that the Committee is an instrumentality of the State and not amenable to the jurisdiction of this Court and because a decision is an authority for it actually decides and not beyond that. Useful reference can be made to the principles laid down in State of Orissa v. Sudhansu Sekar Misra reported in AIR 1968 SC 647, where the Apex Court held that, "A decision is only an authority for what it actually decides. What is of the essence of a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic, this is what Earl of Halsbury LC said in Quinn v. Leathern reported in 1901 AC 495 "Now before discussing the case of Allen v. Flood reported in 1898 AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all".
It is not profitable task to extract a sentence here and there from a judgment and to build upon it."
40. Another aspect to be considered in applying a judgment to given case is that the judgment has to be read as a whole and the observations of the judgment have to be considered in the light of the questions posed before the Court. A decision of the Court takes it colour from the questions involved in the case in which it is rendered and while applying the said decision to a later case, the Courts must carefully try to ascertain the true principles laid down by the decision of the Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under Constitution. Reference can be made to the decision of the Supreme Court in Commissioner of Income Tax v. M/s.Sun Engineering Works (P) Ltd., reported in AIR 1993 SC 43.
41. The Larger Bench in the very same judgment, after considering the scope of Article 226 of the Constitution of India and nature of the functions and duties performed by the private educational institutions and the decision in Executive Committee of Vaish Degree Collage (Three Judges), at Paragraph 79 of the judgment, has categorically held that, "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 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 these educational 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."
42. Therefore, the contention of the learned counsel for the second respondent that the decisions of the Supreme Court in Andi Mukha's (cited supra) are not binding in view of the three judge in Executive Committee's case (cited supra), cannot be countenanced.
43. Courts have consistently held that while exercising the equitable jurisdiction under Article 226 of the Constitution of India, it is necessary to examine as to whether, such an individual body or association or society etc., discharges public duty and if it is so, whether there is any pervasive control over the activity in the discharge of public duty. Imparting education is now well recognised as a public duty, taken up by the private institutions, duly recognised by the competent authorites, either under the Statute or the Government orders, issued from time to time, till a suitable legislation is made.
44. The contention of the learned counsel for the second respondent is that the polytechnic is not a creature of any statute or governed by provisions of any enactment and inasmuch as it is not an instrumentality of a State, Writ Petition is not maintainable. Article 162 of the Constitution of India deals with the Executive Power of the State. Executive Function of the State comprises of both determination of the policy and implementation of the same, by issuing appropriate Government Orders. Even if there is no enactment covering the particular aspect, the Government can carry on the administration by issuing administrative directions and instructions, until the legislature makes a law in that behalf. The State Government can act in relation to any matter with respect to which the State legislature has power to make rules even if there is no legislation to support the executive action. Useful reference can be made to the decision of the Supreme Court in Ram Jawaya Kapur v. State of Punjab reported in AIR 1955 SC 549.
45. Further, in Naraindas v. State of M.P., reported in AIR 1974 SC 1232, the Supreme Court held that even though the State legislature has the power to make law relating to a subject, the executive action by the appropriate Government is not rendered invalid merely because there is no legislation to support such action.
46. When the power of the Government to prescribe the eligibility and qualification of candidates to be considered on merits was tested on the ground that it infringes upon the power of the Central Government as well as Parliament provided in Entry 66 of Seventh Schedule List I, the Supreme Court in Dr.Ambesh Kumar v. Principal, LLRM Medical College, Meerut, reported in AIR 1987 SC 400, held that the State Government is competent in exercise of its powers under Article 162 to pass an order relating to the eligibility and qualification for the candidates to be considered on merits for admissions to the Post-Graduate course in Medical Colleges in the State. The above decisions would go to show that even in the absence of any legislation on the subject, i.e., regulations the functioning of polytechnic, the Government in exercise of its power under Article 162 of the Constitution of India, can issue executive orders in the matter of admission and appointments in private educational institutions, whether it is aided or unaided.
47. In the present case, the second respondent-Polytechnic may not be creature of a Statute or governed by the provisions of any enactment, but it has come into existence by virtue of the permission granted by Government, subject to the conditions contained in the order. In G.O.Ms.No.946, Education Department, dated 09.07.1986, the Government have issued orders, permitting establishment of Annai Velankani Polytechnic, as a self-financing polytechnic, subject to certain conditions, such as, (i) the Management of the private polytechnics should scrupulously follow the admission rules, such as, qualification etc., that are prescribed by the Government and the Director of Technical Education, Chennai, while admitting the students. (ii) The Management should provide an endowment fund to the tune of Rs.10,00,000/-, jointly in the name of the Trust formed for the purpose and in the name of the Director of Technical Education. Endowment fund of Rs.10,00,000/- can be created either in one lumpsum before starting of the Polytechnic or in instalments. In addition, the Private Management should produce either a Bank Guarantee for a period of five years to the tune of Rs.10,00,000/- or a Solvency Certificate to the above extent from the competent revenue authority before opening of the Polytechnic.
48. Insofar as the recruitment is concerned, the Government Order has imposed a condition that staff recruitment should conform to the rules and the orders issued by the Government for Government Aided Polytechnics. The new private polytechnics as established should be under the control of the Director of Technical Education and periodical review/inspection should also be done by the Director of Technical Education. Yet another condition imposed by the Government is that the Polytechnic shall be allowed to start three or more Diploma courses and the Management, which create endowments in instalments as specified in Condition No.4 of the Government Order, shall be allowed to start only upto three Diploma Courses, with an overall intake of not more than 180 students. No additional courses/increase in intake shall be allowed, unless the private management create endowment to the tune of Rs.10 lakhs in full. Tuition fees and Special fees should be collected from the students as in the case of Government Polytechnic or as directed by the Government from time to time.
49. Creation of an endowment in the name of the Director of Technical Education is in the interest of teaching and non-teaching staff that if the Management is unable to pay salary to the teaching and non-teaching staff, due to any financial constraint or closure of the institution, then the educational authorities are not burdened. Though the internal administration of the Polytechnic vests with its Management regarding enforcement of discipline, health, dress code, etc., but the Institution has to scrupulously follow the admission guidelines, as prescribed by the Government and the Director of Technical Education, Chennai, from time to time. Even in the matter of the staff recruitment, the Government Order makes it clear that the Institution, which gets permission from the Government, should act in conformity with the rules and the orders issued by the Government for Government Aided Polytechnic, besides all the new polytechnics, were directed to be under the control of Director of Technical Education, Chennai. Form the above, it could be inferred that new Polytechnics established under the executive orders of the Government, though not aided or not given unrestricted autonomy in the matter of either admission of the students or recruitment of teachers.
50. Recognition is the status granted by the 'appropriate authority', under the relevant statute or government order, as the case may be. Article 226 of the Constitution of India is not confined to statutory authorities alone. Law has undergone a sea change that jurisdiction of the Courts cannot be restricted only against State or instrumentality of State. As the guarantee provided under this Article is wide enough to cover both fundamental rights as well as non-fundamental rights against any person or authority, the powers of the Court under Article 226 of the Constitution of India, cannot be restricted. The phraseology used in Article 226 confers wide power on the High courts to reach injustice, wherever it is found. While exercising the power under Article 226 of the Constitution of India, the task of the Court is to find out whether the duty performed by the person or authority is a public duty or whether there is any public law element involved in the rights sought to be adjudicated between the parties. The existence of pervasive control of the State or the authority over private educational institutions would give a clear indication that such institutions would be amenable to writ jurisdiction. Per contra, if there is a total monopoly of the institution or entity without any interference from the statutory bodies or instrumentalities of the State enjoined with a public duty, then such institution is not amenable to writ jurisdiction.
51. In the light of the guiding principles of law stated supra, the contention of the learned counsel for the second respondent-Polytechnic is not amenable to the jurisdiction of this Court under Article 226 of the Constitution of India, cannot be countenanced.
52. It is now well settled that private educational institutions supplement the functions performed by the institutions of the State in educating the people. It is not an independent activity. It is an activity supplemental to the principle 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 standards, but also fairness and equal treatment. The concept of fairness and equal treatment cannot restricted only to admission of students in these institutions.
53. When disciplinary action is taken for imposition of any penalty, which may even result in deprivation of employment, a source to live with dignity, viz., right to life guaranteed under the Constitution of India, it is imperative that a reasonable opportunity should be given to an employee to put forth his case effectively. The safe guards available to a teaching and non-teaching staff of a government or government aided educational institution, under Article 226 of the Constitution of India is equally applicable to a teaching or non-teaching staff of the unaided private educational institution. Article 14 of the Constitution of India, cannot be restricted only to a person working in government aided institution.
54. No doubt, there is no reference in the Government Order to the service conditions of teaching and non-teaching staff of the self-financing Polytechnics and unaided colleges, yet in the matter of disciplinary action, involving major penalty, Courts have consistently that the delinquent should be given a fair and reasonable opportunity to defend the charges levelled against him.
55. As regards the issue of violation of principles of natural justice, let me consider the decisions relied on by the learned counsel for petitioner.
56. In M.Natanam v. The Assistant Commissioner, HR & CE, reported in 1999(III) CTC 657, an employee of the temple was removed from service. The said order was challenged inter alia that a copy of the enquiry officer's report was not furnished. Though an alternative remedy was available, having regard to the violation of principles of natural justice, was apparent on the face of the record, this Court, at Paragraph 27, held as follows:
"it has been repeatedly held that when there is failure of principles of natural justice, and when the contention goes not only to the root of the matter, but also renders the proceedings a nullity or non est, it is not necessary for the writ petitioner to prefer an appeal and thereafter approach of this Court. As the failure of principles of natural justice is evident on the face of the record, this Court is well justified in entertaining the writ petition and deciding the two contentions raised by the writ petitioner."
57. In C.Masanam v. Chief Educational Officer, Madurai and another reported in 2000 Writ. L.R. 898, the Division Bench of this Court held that, "Every teacher in a private school including a minority is given the protection of these Rules and therefore, unless the procedure agreed upon by the School and management for terminating the services is followed, there cannot be a valid termination of a service of the teacher. Clause 7 sets out clearly and in unmistakenable terms, the steps to be followed by the School before taking a final decision regarding dismissal, removal, reduction in rank or termination of the service of a teacher. These are all the statutory safeguards to protect the teacher against arbitrariness."
58. In S.B.I., and others v. Arvind K.Shukla reported in 2001 (3) SCC 765, the Supreme Court, held that, "non-furnishing the enquiry report vitiates the findings, when the disciplinary authority disagreed with the findings of the enquiry officer.
59. In Hiran Mayee Bhattacharyya v. Secretary, S.M.School for Girls reported in 2002 (10) SCC 293, the termination of a teacher was challenged on the ground that the copy of the enquiry report was not furnished and therefore, there was a violation of principles of natural justice. Admittedly, the School was governed by the Management for Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969. As violation of principles of natural justice was per se apparent, the Apex Court set aside the order of termination and remitted the matter back to the disciplinary authority. It is to be noted that the rules stated supra were applied to both aided and non-aided non-governmental institutions and that the Supreme Court, having regard to the violation of principles of natural justice, has set aside the order of termination.
60. Principles of Natural Justice have to be followed, subject to certain exceptions. Though the respondent-Polytechnic is not financed by the government, yet there is a pervasive control over the functioning of the Institution by the government and that the Director of Technical Education is also empowered to conduct periodical review/inspection. Just because the second respondent-Institution is not aided by the Government, it cannot be said that the Institution will not be amenable to the jurisdiction of this Court under Article 226 of the Constitution of India, so long as it discharges public duty. As violation of principles of natural justice is per se apparent, the impugned order is liable to be set aside and accordingly, set aside. The respondents are directed to reinstate the petitioner as Librarian in the second respondent-institution with full backwages, continuity of service and all other attendant benefits.
61. In the result, the Writ Petition is allowed. No costs.
06.01.2010 skm To The Director of Technical Education, Chennai-25.
S. MANIKUMAR. J.
skm W.P.No.5843 of 2001 06.01.2010