DR. JANET JEYAPAUL Vs. SRM UNIVERSITY AND ANR.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 14553 of 2015, Judgment Date: Dec 15, 2015
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.
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 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 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 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 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 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.
(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.
(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
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 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 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 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 fulfill the said
object/purpose.
8. Pointing out from various well known English commentaries such as De
Smith's Judicial Review, 7th Edition, H.W.R.Wade and C.F. Forsyth
Administrative law, 10th Edition, Michael J. Beloff in his article Pitch,
Pool, Rink,……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 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 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 "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 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, 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.
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.
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
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 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 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”.”
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 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). 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 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.
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.3 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 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 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. 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 function - namely 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. 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.
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
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 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 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 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 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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