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2017 DIGILAW 981 (RAJ)

Anjana Vyas v. National Law University

2017-04-17

G.R.MOOLCHANDANI, GOPAL KRISHAN VYAS

body2017
ORDER : In all above three writ petitions, the respondent National Law University, Jodhpur has raised a preliminary objection that the National Law University, Jodhpur is not "State" within the meaning of Article 12 of the Constitution of India. 2. Learned counsel for the respondent submits that both statutory and non-statutory bodies can be considered as "State" provided they get financial resources from the government and have deep persuasive control of the Government with financial character, therefore, the National Law University, Jodhpur which is an autonomous body not receiving any financial aid from the Government cannot be said to be State as defined under Article 12 of the Constitution of India. In support of his arguments, the learned counsel for the respondents has relied upon the judgments of the Hon'ble Supreme Court in (1989) 2 SCC 691 Andi Mutka Sadguru Shree Mukteajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & Ors v. V.R. Rudani & Ors, (2007) 15 SCC 136 : Lieutenant Governor of Delhi v. V.K. Sodhi & Ors. and (2015) 4 SCC 670 : K.K. Saksena v. International Commission On Irrigation and Drainage & Ors.. 3. Per contra, learned counsel for the petitioners vehemently argued that preliminary objection is not sustainable in law because the National Law University is established by law and for that purpose, State legislature promulgated an Act known as National Law University, Jodhpur Act of 1999 and respondent University was established under the said Act for the purpose of advancement of cause of learning, teaching and search and diffusion of knowledge in the field of law, as also to cater to the needs of the society by developing professional skills of persons intending to take up advocacy, judicial service law officers/managers and legislative drafting as their profession and matters incidental thereto, while inviting various provisions of the Act including the statute, in which there is provision for constitution of general council, executive council, academic council and finance committee, it is submitted that various authorities of the State Government are the members of each councils regulating the University, therefore, there is no strength in the preliminary objection raised by the respondent University. In support of his arugments, the learned counsel for the petitioner invited our attention towards the judgment in the case of AIR 2016 SC 73 : Dr. In support of his arugments, the learned counsel for the petitioner invited our attention towards the judgment in the case of AIR 2016 SC 73 : Dr. Janet Jeyapaul v. SRM University and Ors and submits that the Hon'ble Supreme Court, while deciding the same issue has held that even deemed University is State within the meaning of Article 12 of the Constitution of India, therefore, the preliminary objection may kindly be rejected. 4. After hearing learned counsel for the parties, we have perused the various provisions of the Act promulgated by the State legislature for establishment of the respondent University, so also, the judgments cited by the learned counsel for the respondent University, as well as learned counsel for the petitioner. 5. In our opinion, all the judgments cited by the learned counsel for the respondent University have been dealt with by the Hon'ble Supreme Court in the recent judgment delivered in the case of Dr. Janet Jeyapaul (supra) and the Hon'ble Supreme Court has held that institution engaged in imparting higher education in various subjects, which is declared as deemed University is "State" within the meaning of Article 12 of the Constitution of India and following adjudication is made by the Hon'ble Supreme Court in para no.15 to 23 after discussing the entire law, which reads as under : "15. To examine the question urged, it is apposite to take note of what De Smith, a well-known treaty, on the subject" Judicial Review" has said on this question [See De Smith's Judicial Review, 7th Edition, page 127 (3-027) and page 135 (3-038)]. Amenability Test Based on The Source of Power The courts have adopted two complementary approaches to determining whether a function falls within the ambit of the supervisory jurisdiction. First, the court considers the legal source of power exercised by the impugned decision-maker. In identifying the "classes of case in which judicial review is available", the courts place considerable importance on the source of legal authority exercised by the Defendant public authority. Secondly and additionally, where the "source of power" approach does not yield a clear or satisfactory outcome, the court may consider the characteristics of the function being performed. This has enabled the courts to extend the reach of the supervisory jurisdiction to some activities of non-statutory bodies (such as self-regulatory organisations). We begin by looking at the first approach, based on the source of power. This has enabled the courts to extend the reach of the supervisory jurisdiction to some activities of non-statutory bodies (such as self-regulatory organisations). We begin by looking at the first approach, based on the source of power. Judicial Review of Public Functions The previous section considered susceptibility to judicial review based on the source of the power: statute or prerogative. The courts came to recognize that an approach based solely on the source of the public authority's power was too restrictive. Since 1987 they have developed an additional approach to determining susceptibility based on by the type of function performed by the decision-maker. The "public function" approach is, since 2000, reflected in the Code of Civil Procedure Rules: CPR. 54.1(2)(a)(ii), defines a claim for judicial review as a claim to the lawfulness of "a decision, action or failure to act in relation to the exercise of a public function." (Similar terminology is used in the Human Rights Act 1998 Section 6(3)(b) to define a public authority as "any person certain of whose functions are functions of a public nature", but detailed consideration of that provision is postponed until later). As we noted at the outset, the term "public" is usually a synonym for "governmental". 16. The English Courts applied the aforesaid test in R. v. Panel on Takeovers and Mergers, ex parte Datafin Plc and Anr. (Norton Opax Plc and another intervening) (1987) 1 All ER 564, wherein Sir John Donaldson MR speaking for three-judge Bench of Court of Appeal (Civil Division), after examining the various case law on the subject, held as under: In determining whether the decisions of a particular body were subject to judicial review, the court was not confined to considering the source of that body's powers and duties but could also look to their nature. Accordingly, if the duty imposed on a body, whether expressly or by implication, was a public duty and the body was exercising public law functions the court had jurisdiction to entertain an application for judicial review of that body's decisions....... 17. In Andi Mukta's case (supra), the question before this Court arose as to whether mandamus can be issued at the instance of an employee (teacher) against a Trust registered under Bombay Public Trust Act, 1950 which was running an educational institution (college). 17. In Andi Mukta's case (supra), the question before this Court arose as to whether mandamus can be issued at the instance of an employee (teacher) against a Trust registered under Bombay Public Trust Act, 1950 which was running an educational institution (college). The main legal objection of the Trust while opposing the writ petition of their employee was that since the Trust is not a statutory body and hence it cannot be subjected to the writ jurisdiction of the High Court. The High Court accepted the writ petition and issued mandamus directing the Trust to make payments towards the employee's claims of salary, provident fund and other dues. The Trust (Management) appealed to this Court. 18. This Court examined the legal issue in detail. Justice K. Jagannatha Shetty speaking for the Bench agreed with the view taken by the High Court and held as under: 11. Two questions, however, remain for consideration: (i) The liability of the Appellants to pay compensation Under Ordinance 120-E and (ii) The maintainability of the writ petition for mandamus as against the management of the college......... 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: (1976) 2 SCC 58 and (b) Deepak Kumar Biswas v. Director of Public Instructions : (1987) 2 SCC 252 . 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. 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. 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 other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the Appellants trust was managing the affiliated college to which public money is paid as government aid. Public money paid as government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like government institutions discharge public function by way of imparting education to students. They are subject to the rules and Regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has superadded 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. 20. The term "authority" used in Article 226, in 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. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied. 19. This issue was again examined in great detail by the Constitution Bench in Zee Telefilms Ltd. and Anr. v. Union of India and Ors. : (2005) 4 SCC 649 wherein the question which fell for consideration was whether the Board of Control for cricket in India (in short "BCCI") falls within the definition of "State" Under Article 12 of the Constitution. This Court approved the ratio laid down in Andi Mukta's case (supra) but on facts of the case held, by majority, that the BCCI does not fall within the purview of the term State. This Court, however, laid down the principle of law in Paras 31 and 33 as under: 31. Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition Under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. Though the remedy Under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition Under Article 226 of the Constitution, which is much wider than Article 32. 33. Thus, it is clear that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition Under Article 226...................... 20. It is clear from reading of the ratio decidendi of judgment in Zee Telefilms Ltd. (supra) that firstly, it is held therein that the BCCI discharges public duties and secondly, an aggrieved party can, for this reason, seek a public law remedy against the BCCI Under Article 226 of the Constitution of India. 21. Applying the aforesaid principle of law to the facts of the case in hand, we are of the considered view that the Division Bench of the High Court erred in holding that Respondent No. 1 is not subjected to the writ jurisdiction of the High Court Under Article 226 of the Constitution. In other words, it should have been held that Respondent No. 1 is subjected to the writ jurisdiction of the High Court Under Article 226 of the Constitution. 22. This we say for the reasons that firstly, Respondent No. 1 is engaged in imparting education in higher studies to students at large. Secondly, it is discharging "public function" by way of imparting education. Thirdly, it is notified as a "Deemed University" by the Central Government Under Section 3 of the UGC Act. Fourthly, being a "Deemed University", all the provisions of the UGC Act are made applicable to Respondent No. 1, which inter alia provides for effective discharge of the public functionnamely education for the benefit of public. Fifthly, once Respondent No. 1 is declared as "Deemed University" whose all functions and activities are governed by the UGC Act, alike other universities then it is an"authority" within the meaning of Article 12 of the Constitution. Fifthly, once Respondent No. 1 is declared as "Deemed University" whose all functions and activities are governed by the UGC Act, alike other universities then it is an"authority" within the meaning of Article 12 of the Constitution. Lastly, once it is held to be an "authority" as provided in Article 12 then as a necessary consequence, it becomes amenable to writ jurisdiction of High Court Under Article 226 of the Constitution. 23. In the light of foregoing discussion, we cannot concur with the finding rendered by the Division Bench and accordingly while reversing the finding we hold that the Appellant's writ petition Under Article 226 of the Constitution against Respondent No. 1 is maintainable. 6. While, following the aforesaid judgment, the preliminary objection raised by the respondent National Law University, Jodhpur is hereby rejected and it is held that writ petition under Article 226 of the Constitution of India against the National Law University, Jodhpur is maintainable. 7. List all aforesaid writ petitions for final hearing on merit at admission stage on 3.7.2017.