Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 14553 OF 2015
(Arising out of SLP(C) No.11208/2015)
Dr. Janet Jeyapaul ………Appellant(s)
VERSUS
SRM University & Ors. ……Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
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1. Leave granted.
2. This appeal is filed by the appellant-in-person
against the judgment and order dated 04.07.2013
passed by the High Court of Judicature at Madras
in Writ Appeal No. 932 of 2013 whereby the Division
Bench of the High Court allowed the writ appeal
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filed by the respondents herein against the order
dated 08.04.2013 passed by the Single Judge of the
High Court in W.P. No. 12676 of 2012 and, in
consequence, dismissed the writ petition filed by the
appellant herein as being not maintainable.
3. In order to appreciate the controversy involved
in this appeal, which lie in a narrow compass, it is
necessary to set out the relevant facts.
(a) The S.R.M. University-respondent No.1 herein
is the Institution engaged in imparting high
education in various subjects. The Central
Government has, therefore, on the advise of
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University Grants Commission (in short “UGC”)
declared respondent No.1 as “Deemed University” by
issuing a notification under Section 3 of the
University Grants Commission Act, 1956 (in short
“the UGC Act”). Respondent No.1 is, therefore,
subjected to ensuring compliance of all the
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provisions of UGC Act in its functioning.
(b) The appellant is holding M.Sc. and P.hd. in
applied Biology. She was appointed as a Lecturer in
the Department of Bio-technology in the Faculty of
Sciences and Humanity in the SRM University-
respondent No.1. By order dated 05.05.2010, she
was promoted as Senior Lecturer w.e.f. 01.04.2010.
(c) On 14.02.2012, the appellant was served with
a memo calling upon her to show cause as to why
disciplinary action should not be taken against her
for the alleged failure to take classes of the students
of B.Sc. Third Year degree course and M.Sc. First
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Year degree course. The appellant submitted her
replies on 15.02.2012 and 20.02.2012 denying the
allegations and claiming that she took classes for
both the courses.
(d) Thereafter, another memo dated 22.02.2012
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was issued by the Registrar in-charge of the
University referring certain complaints given against
her by the students. Refuting the charges, the
appellant submitted her reply on 29.02.2012.
(e) Dissatisfied with the explanation given by the
appellant, respondent No.1-SRM University
constituted an Enquiry Committee and the
appellant appeared before the said Committee on
02.03.2012 and stated that she was not furnished
the documents and the copies of the complaints.
Thereafter she submitted a detailed explanation on
26.03.2012.
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(f) Thereafter the appellant received a notice
dated 04.04.2012 mentioning therein that the same
shall be treated as one month’s notice and she
would be relieved from the services w.e.f.
04.05.2012. According to the appellant, she
received the notice on 16.04.2012.
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(g) Challenging the said notice, the appellant filed
Writ Petition No. 12676 of 2012 before the High
Court. By order dated 08.04.2013, the Single Judge
of the High Court allowed the writ petition, quashed
the termination notice and directed the respondents
to reinstate the appellant into service.
(h) Against the said order, respondent No.1 herein
filed Writ Appeal No. 932 of 2013 before the High
Court. By impugned judgment dated 04.07.2013,
the Division Bench of the High Court allowed the
appeal. It was held that the writ petition filed by the
appellant against respondent No.1 was not
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maintainable as according to the Division Bench,
respondent No.1 is neither a State nor an authority
within the meaning of Article 12 of the Constitution
of India and hence it cannot be subjected to writ
jurisdiction of the High Court under Article 226 of
the Constitution to examine the legality and
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correctness of the dismissal order. The Division
Bench, therefore, did not examine the merits of the
case made out by the appellant successfully before
the Single Judge. The Division Bench, however,
granted liberty to the appellant to approach the
Tribunal for ventilating of her grievance on merits.
(i) Aggrieved by the said judgment, the appellant
has preferred this appeal by way of special leave
before this Court.
4. Heard appellant-in-person and Mr. Sanjay R.
Hegde, learned senior counsel for the respondents.
5. Since the appeal involved a legal issue and the
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appellant had no legal assistance, we requested Mr.
Harish Salve, learned senior counsel, who was
present in Court, to assist the Court to enable us to
properly appreciate and decide the issues arising in
the case.
6. We record our deep sense of appreciation for
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the valuable assistance rendered by Mr. Harish
Salve with his usual fairness and industry and also
for submitting his written note on the conclusion of
the case on our request.
7. Submissions of Mr. Harish Salve were many
fold. According to him, while deciding the question
as to whether the writ lies under Article 226 of the
Constitution of India against any person, juristic
body, organization, authority etc., the test is to
examine in the first instance the object and purpose
for which such body/authority/organization is
formed so also the activity which it undertakes to
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fulfill the said object/purpose.
8. Pointing out from various well known English
commentaries such as De Smith's Judicial
th
Review, 7 Edition, H.W.R.Wade and C.F.
th
Forsyth Administrative law , 10 Edition,
Michael J. Beloff in his article Pitch, Pool, Rink,
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……Court? Judicial Review in the Sporting
World, 1989 Public Law 95, English decisions in
Breen vs. A.E.U. (1971) 2 QB 175 , R. vs. Panel on
Take-overs and Mergers, ex parte Datafin Plc and
another (Norton Opax Plc and another
intervening) (1987) 1 All ER 564 , E.S. Evans vs.
Charles E. Newton 382 US 296 (1966) and of this
Court in Andi Mukta Sadguru Shree Muktajee
Vandas Swami Suvarna Jayanti Mahotsav
Smarak Trust & Ors. vs. V.R. Rudani & Ors. ,
(1989) 2 SCC 691 and Zee Telefilms Ltd. vs.
Union of India (2005) 4 SCC 649, Mr. Harish Salve
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submitted that perusal of these
authorities/decisions would go to show that there
has been a consistent view of all the learned
authors and the Courts all over the world including
in India that the approach of the Court while
deciding such issue is always to test as to whether
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the concerned body is formed for discharging any
" Public function " or " Public duty " and if so,
whether it is actually engaged in any public
function or/and performing any such duty.
9. According to learned counsel, if the aforesaid
twin test is found present in any case then such
person/body/organization/authority, as the case
may be, would be subjected to writ jurisdiction of
the High Court under Article 226 of the
Constitution.
10. Learned senior counsel elaborated his
submission by pointing out that the expression
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"any person or authority" used in Article 226 are
not confined only to statutory authorities and
instrumentalities of the State but may in
appropriate case include any other person or body
performing "public function/duty" . Learned
counsel urged that emphasis is, therefore, always
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on activity undertaken and the nature of the duty
imposed on such authority to perform and not the
form of such authority. According to Mr. Harish
Salve, once it is proved that the activity undertaken
by the authority has a public element then
regardless of the form of such authority it would be
subjected to the rigor of writ jurisdiction of Article
226 of the Constitution.
11. Learned counsel then urged that in the light of
several decisions of this Court, one cannot now
perhaps dispute that "imparting education to
students at large" is a "public function" and,
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therefore, if any body or authority, as the case may
be, is found to have been engaged in the activity of
imparting education to the students at large then
irrespective of the status of any such authority, it
should be made amenable to writ jurisdiction of the
High Court under Article 226 of the Constitution.
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12. Learned counsel further pointed out that the
case in hand clearly shows that respondent No. 1 -
a juristic body is engaged in imparting education in
higher studies and what is more significant is that
respondent No. 1 is conferred with a status of a
“Deemed University" by the Central Government
under Section 3 of the UGC Act. These two factors,
according to Mr. Harish Salve, would make
respondent No. 1 amenable to writ jurisdiction of
the High Court under Article 226 because it
satisfies the twin test laid down for attracting the
rigor of writ jurisdiction of the High Court.
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13. In reply, Mr. Sanjay R. Hegde, learned senior
counsel for respondent No. 1 while supporting the
impugned order contended that if this Court holds
that respondent No. 1 is amenable to writ
jurisdiction then apart from employees even those
who are otherwise dealing with respondent No. 1
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would start invoking writ jurisdiction which,
according to learned counsel, would open the flood
gate of litigation in courts.
14. Having heard learned counsel for the parties
and on perusal of the record of the case, we find
force in the submissions urged by Mr. Harish
Salve.
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
th
question [See De Smith’s Judicial Review, 7
Edition, page 127 (3-027) and page 135 (3-038)] .
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“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
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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
organizations). 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 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 s.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”.”
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16. The English Courts applied the aforesaid test
in R. vs. Panel on Take-overs and Mergers, ex
parte Datafin Plc and another (Norton Opax Plc
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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
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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
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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………
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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
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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 respondSLP No.11208 of
2015ent institution was a Degree College
managed by a registered cooperative society.
A suit was filed against the college by the
dismissed principal for reinstatement. It was
contended that the Executive Committee of
the college which was registered under the
Cooperative Societies Act and affiliated to
the Agra University (and subsequently to
Meerut University) was a statutory body. The
importance of this contention lies in the fact
that in such a case, reinstatement could be
ordered if the dismissal is in violation of
statutory obligation. But this Court refused
to accept the contention. It was observed
that the management of the college was not a
statutory body since not created by or under
a statute. It was emphasised that an
institution which adopts certain statutory
provisions will not become a statutory body
and the dismissed employee cannot enforce a
contract of personal service against a non-
statutory body.
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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
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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
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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 super-added
protection by University decisions creating a
legal right-duty relationship between the staff
and the management. When there is
existence of this relationship, mandamus
cannot be refused to the aggrieved party.
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. 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
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party. No matter by what means the duty is
imposed, if a positive obligation exists
mandamus cannot be denied.”SLP No.11208
of 2015
19. This issue was again examined in great detail
by the Constitution Bench in Zee Telefilms Ltd. &
Anr. Vs. Union of India & 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
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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
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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. 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
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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
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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
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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 function - namely education for the benefit
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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. 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
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we hold that the appellant's writ petition under
Article 226 of the Constitution against respondent
No. 1 is maintainable.
24. This takes us to the next argument urged by
learned counsel for the respondents. Placing
reliance on para 231 of the decision of this Court in
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T.M.A. Pai Foundation & Ors. vs. State of
Karnataka & Ors. (2002) 8 SCC 481, learned
counsel contended that even assuming that the
appellant's writ petition is maintainable, yet it
should not be entertained for hearing on merits and
instead the appellant be granted liberty to approach
the District Judge/Additional District Judge of the
concerned District which is designated as Tribunal
till formation of regular Tribunal for redressal of her
grievances as directed by the Constitution Bench in
Para 231 of T.M.A. Pai's case (supra) .
25. In normal course, we would have been inclined
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to accept this submission made by learned counsel
for the respondents and would have also granted
liberty to the appellant to approach the Tribunal in
term of the directions given by the Constitution
Bench of this Court. But since in this case, the
Single Judge not only entertained the appellant's
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writ petition but he allowed the writ petition on
merits whereas the Division Bench held the writ
petition as not maintainable and thus declined to
examine the merits of the controversy involved in
the writ petition.
26. We do not consider it proper to direct the
appellant at this stage to approach the Tribunal and
file a dispute before the Tribunal. Instead, we
consider it just and proper to remand the case to
the Division Bench of the High Court to decide the
respondent's appeal on merits on the question as to
whether the Single Judge was justified in allowing
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the writ petition on merits.
27. Before parting, we consider it apposite to state
that we have not examined the controversy raised
by the appellant in her writ petition on merits and
confined our examination to the question whether
the writ petition against respondent No. 1 was
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maintainable or not.
28. In view of foregoing discussion, the appeal
succeeds and is allowed. The impugned order is set
aside. Writ Appeal No. 932 of 2013 out of which this
appeal arises is restored to its original number. The
Division Bench is requested to decide the appeal
expeditiously on merits in accordance with law
without being influenced by any of our observations.
.……...................................J.
[J. CHELAMESWAR]
………..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi,
December 15, 2015.
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