TMI Blog2015 (12) TMI 1856X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent 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. Appeal allowed. - CIVIL APPEAL No. 14553 OF 2015 - - - Dated:- 15-12-2015 - Abhay Manohar Sapre, J. JUDGMENT 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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. Learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dSLP 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 nonstatutory 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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