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645 1993 Indlaw SC 1168.The Mahatma Gandhi University had included this appellant in the list of colleges and courses which were granted affiliation during 1995-96 and the University had written to the State Government on 31.5.95 that as per statute 9(7),the "views" of the government were to be sent before granting aff... |
The letter said that for that reason the proposals of the University were being submitted to the Government "for necessary action".The appellant had sent a reminder on 26.8.95.The State in its letter dated 16.8.96 to the appellant merely stated "that government regret their inability to comply with your request".No rea... |
But the State in its counter filed in the High Court tried to explain that the Director of Technical Education had opined that during the year 1995-96,it might not be practicable to start the college for the Director could not ascertain the details of the facilities available FAC |
It was stated : "he could not ascertain the infrastructural facilities provided by the appellant as per the norms prescribed by the All India Council of Technical Education FAC |
The All India Council for Technical Education and the Mahatma Gandhi University have sought for the remarks of the State Government FAC |
Para 4 of the Counter affidavit had further stated that the Government was not "in a position to take a decision to start new Engineering college without properly assessing the necessity of more engineering gradu-ates in the State and exploring the possibility of employment oppor-tunity in the country to the extent pos... |
The State Government in its counter then gave the names of the existing colleges and their location Ratio |
We have already referred to these details Ratio |
It also observed that there was widespread student prospects against starting new colleges and it was necessary to be cautious in the matter of starting new engineering colleges Ratio |
It was stated that Government could not initially take a decision on the appellant's affiliation because of elections and that matter being one of 'major policy' the Government had subsequently "taken a policy decision not to sanction any affiliation to such colleges either in the private sector or in the public sector... |
State Government's refusal to grant permission is illegal and void on merits Ratio |
As already stated,in view of the judgment of this Court in Tamil Nadu case,it is obvious that there is no need to approach the State of Kerala for its approval for starting the Engineering colleges Ratio |
There is no power vested in the State under any State Law to grant approval and even if it was so vested,it would have been void in view of Tamil Nadu case Ratio |
This ground of repugnancy alone would be sufficient to quash the State Government's letter dated 16.8.1996 refusing to give their approval Ratio |
Even on merits,the reasons given by the State Government in its counter are not tenable in law Ratio |
The Director of Technical Education of the State was a member of the State Level Committee as per regulation 9(4) of the AICTE Regulations Ratio |
The Secretary,Technical Education of the State of Kerala was also a member of that Committee Ratio |
The AICTE's approval dated 30.4.95 showed that the approval had been given by the State Level Com-mittee of which they were obviously members Ratio |
It is,therefore,not under-standable how the Director had given a contrary opinion to the State Government Ratio |
Regulation 8(4) of AICTE only required calling for the "com-ments/recommendations" of the State Government and of the University Ratio |
In case,there was difference between the State Government,University or the Regional Committee the Central Task Force was to make a final recommen-dation under Regulation Ratio |
8(4).Here Ratio |
the letter of approval of the AICTE dated 30.4.95 showed that the Central Task Force had given its approval Ratio |
The said approval was based also on the inspection by the Expert Committee of the AICTE.Hence the State Government in its counter,could not have relied upon any contrary opinion of the Director of Technical Education Ratio |
If the State Government had any other valid objections,its only remedy was to place its objections before the AICTE Council under the AICTE Act or before the Committees,e.g Ratio |
State Level Committee etc Ratio |
The so called 'policy' of the State as mentioned in the counter affidavit filed in the High Court was not a ground for refusing approval Ratio |
In Thirwnuruga Kirupan and Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v PRE |
State of Tamil Nadu & Others,[1996] 3 SCC 15 1996 Indlaw SC 858,which was a case relating to Medical Education and which also related to the effect of a Central Law upon a law made by the State under Entry 25 List III,it was held that the "essentiality certificate cannot be withheld by the State Government on any polic... |
Therefore,the State could not have any "policy" outside the AICTE Act and indeed if it had a policy,it should have placed the same before the AICTE and that too before the latter granted permission Ratio |
Once that procedure laid down in the AICTE Act and regulations had been followed under Regulation 8(4),and the Central Task Force had also given its favourable recommendations,there was no scope for any further objection or approval by the State Ratio |
We may however add that if thereafter,any fresh facts came to light after an approval was granted by the AICTE or if the State felt that some conditions attached to the permission and required by the AICTE to be complied with,were not complied with,then the State government could always write to the AICTE,to enable the... |
Decision of University in not granting further or fined affiliation wrong on merits Ratio |
Admittedly,the University's inspection report was in favour of the appellant Ratio |
This is clear from the appellant's letter dated 31.5.95 to the State Government Ratio |
The only requirement as per the statute 9(7) was for the University to obtain the "views" of the State Government Ratio |
Obtaining the 'views' of the State Government,as already stated,did not amount to obtaining its 'approval'.Procedure and conditions for affiliation could not be inconsistent with the provisions of the Central Act,in particular s.10(k) of the Regulation,and the University could not seek approval of Government Ratio |
The University was also one of the agencies consulted by the council of the AICTE under Regulation 8.Once that was over,and approval was granted by the AICTE,if there was any default on the part of the College in compliance with the conditions of approval,the only remedy for the Univer-sity was to bring those facts to ... |
Reliance for the respondent was placed upon the subsequent report of the Syndicate dated 7.8.97.This report no doubt pointed out that the appellant had not complied with certain conditions mentioned in the approval dated 30.4.95 granted by the AICTE.Assuming certain fresh facts had come to the notice of the University,... |
Thus,the University ought to have considered the grant of final or further affiliation without waiting for any approval from the State Govern-ment and should have acted on the basis of the permission granted by AICTE and other relevant factors in the University Act or statutes,which are not inconsistent with the AICTE ... |
For the aforesaid reasons,we set aside the judgment of the Division Bench of the High Court and uphold the reasoning of the learned Single Judge in his judgment in OP 4612/96 dated 14.1.1997.We hold that the approval of the AICTE was sufficient,we do not also think that it was necessary for the learned Single Judge to ... |
The learned Single Judge's order quashing the letter of the State Government dated 16.8.96 is upheld Ratio |
The direction to the Mahatama Gandhi University to consider the application of the appellant for final affiliation or continuance of affiliation is confirmed and this is to be done on the basis of the approval granted by the AICTE dated 30.4.95,or any other relevant factors in the University Act or its statutes,which a... |
The appeal is allowed and disposed of as stated above RPC |
There will be no order as to costs RPC |
M.JAGANNADHA RAO,J RPC |
The petitioner was not a party in the High Court of Kerala and this Special Leave Petition was filed with leave of this Court Ratio |
We find that the petitioner has already filed a Writ Petition in the Delhi High Court namely CWP No.952 of 1998 and the same is pending Ratio |
It will be for the petitioner to have the said matter disposed of by the High Court of Delhi Ratio |
Therefore,this special leave petition is dismissed as premature Ratio |
Appeal allowed RPC |
The appellant is a company incorporated under the Companies Act,1956 with the object of manufacture and sale of cigarettes FAC |
Members of general public are the shareholders and the shares of the company are traded in through various stock exchanges in the country FAC |
A petition was filed under Article 226 of the Constitution by respondent No.1 seeking for a writ of mandamus to treat the members of the respondent-union who are employees working in the canteen of the appellants factory as employees of the appellant and for grant of monetary and other consequential benefits FAC |
The canteen is provided in the factory premises of the appellant pursuant to Section 46 of the Factories Act,1948 [hereinafter referred to as the Act],which obliges a factory employing more than 250 workmen to provide such a canteen STA |
On behalf of the respondents,it is contended that the appellant had been managing the canteen up to the year 1982 and thereafter introduced the contract system for maintaining the canteen so established; that though the management of the canteen had been entrusted to the contractors from time to time,the personnel empl... |
On behalf of the appellant,contention was raised that no writ would lie against the appellant inasmuch as the appellant is a company,which is not an authority or a person against whom a writ would lie ARG |
It was submitted that they do not discharge any public duty and hence the writ cannot be issued ARG |
On the merits of the matter,the appellant disputed various questions of fact and urged that the decision of this Court in Parimal Chandra Raha vs ARG |
Life Insurance Corporation of India,1995 Supp.(2) SCC 611 1995 Indlaw SC 183,would not be applicable to the appellant in the facts and circumstances of the case ARG |
The learned Single Judge,who decided the matter in the first instance,held that a writ would lie against a company under a private management following the decision in T.Gattaiah vs FAC |
Commissioner of Labour,1981 [II ] LLJ 54 1981 Indlaw AP 26,in which it was held that establishment of a canteen and its maintenance is a statutory requirement; under Section 46 of the Act a public duty is imposed on the company to establish and maintain the canteen; inasmuch as members of the respondent-union are worki... |
He,therefore,held that when a public duty is called upon to be discharged by a private management,a writ of mandamus would lie and could be issued under Article 226 of the Constitution FAC |
He thus rejected the contention FAC |
On the merits of the matter,the learned Single Judge followed the decision in Parimal Chandra Rahas case holding that when the duty had been enjoined on the appellant to provide and maintain a canteen facility under the Factories Act it becomes the obligation of the appellant to establish a canteen and that is what the... |
Therefore,when that work is got done through somebody else by providing the necessary infrastructure and other facilities,when the personnel did not change though the contractors changed from time to time,he held that they become employees of the appellant PRE |
On that basis the learned Single Judge granted reliefs sought for by the respondents,however,imposing certain restrictions with regard to the age,being medically fit,on the date of the writ petition,had put in a minimum of three years of continuous service and such service prior to the attainment of the minimum qualify... |
On appeal,the Division Bench of the High Court affirmed the view taken by the learned Single Judge FAC |
The Division Bench referred to their decision in Rakesh Gupta vs FAC |
Hyderabad Stock Exchange Ltd FAC |
Hyderabad & Ors.,AIR 1996 AP 430 1996 Indlaw AP FAC |
302,that a writ in the nature of mandamus,certiorari and prohibition are recognised as public law remedies and are not available to enforce private law rights FAC |
However,noticing that the expression any person or authority used in Article 226 of the Constitution should not be confined only to statutory authorities and instrumentalities of State but would cover any other person or body performing public duty FAC |
The form of the body concerned is not very much relevant PRE |
What is relevant is the nature of the duty imposed on that body PRE |
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 FAC |
On that basis,the Division Bench of the High Court dismissed the writ appeal FAC |
Hence this appeal FAC |
On behalf of the appellant contention put forth at the forefront is that a writ would not lie against the appellant inasmuch as the appellant is engaged in the manufacture and sale of cigarettes and as an incident thereto has provided a canteen to its workmen pursuant to an obligation under Section 46 of the Act ARG |
Shri S.Ganesh,learned counsel for the appellant,pressed into service the decision of this Court in Anadi Mukta Sadguru Shree Muktajee Vandas Swami Survarna Jayanti Mahotsav Smarak Trust & Ors.vs ARG |
V.R.Rudani & Ors.,1989 (2) SCC 691 1989 ARG |
Indlaw SC 589,to contend that mere running of a factory to manufacture and sell of cigarettes can never be considered to be a public duty much less an incident thereto such as providing a canteen to its workmen ARG |
On behalf of the respondent,heavy reliance was placed on this decision and also the decision of the High Court in T.Gattaiahs case,to contend that in running a canteen under Section 46 of the Act,the appellant was discharging a public duty and,therefore,a writ of mandamus would lie against it ARG |
n Anadi Muktas case,the contention,similar to the present case,had been raised PRE |
Writ petitioners were seeking for a writ of mandamus to put them back in the college and they were claiming only a terminal benefit or arrears of salary payable to them PRE |
In that background,it was observed that if the rights are purely of a private character no mandamus could be issued and also,if the management of the college were purely a private body with no public duty mandamus would not lie PRE |
In that case,the respondent was managing the affiliated college to which public money is paid as Government aid which played a major role in the control,maintenance and working of educational institutions PRE |
The aided institutions,it was noticed,like Government institutions discharge public function by way of imparting education to students PRE |
They were subject to the rules and regulations of the affiliating University and their activities were closely supervised by the University authorities PRE |
Employment in such institutions,therefore,is not devoid of any public character inasmuch as the service conditions of the academic staff were controlled by the University particularly in regard to their pay scales and the protection by University decisions creating a legal right or duty relationship between the staff a... |
When there is existence of such relationship mandamus could not be refused to such an aggrieved party PRE |
It was further explained in that decision that the term authority used in Article 226 of the Constitution should receive a liberal meaning unlike the term in Article 12,which is only for the purpose of enforcement of fundamental rights under Article 32.The words any person or authority used in Article 226 are,therefore... |
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 PRE |
In De Smith,Woolf and Jowells Judicial Review of Administrative Action,5th Edn.,it is noticed that not all the Activities of the private bodies are subject to private law,e.g.,the Activities by private bodies may be governed by the standards of public law when its decisions are subject to duties conferred by statute or... |
By way of illustration,it is noticed that a private company selected to run a prison although motivated by commercial profit should be regarded,at least in relation to some of its activities,as subject to public law because of the nature of the function it is performing Ratio |
This is because the prisoners,for whose custody and care it is responsible,are in the prison in consequence of an order of the court,and the purpose and nature of their detention is a matter of public concern and interest Ratio |
After detailed discussion,the learned authors have summarized the position with the following propositions: (1) The test of whether a body is performing a public function,and is hence amenable to judicial review,may not depend upon the source of its power or whether the body is ostensibly a public or a private body Rat... |
2) The principles of judicial review prima facie govern the Activities of bodies performing public functions Ratio |
However,not all decisions taken by bodies in the course of their public functions are the subject matter of judicial review Ratio |
In the following two situations judicial review will not normally be appropriate even though the body may be performing a public function: (a) Where some other branch of the law more appropriately governs the dispute between the parties Ratio |
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