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on 4 July, 1906 Article 12 in The Constitution Of India 1949 Anandi Mukta Sadguru Shree Mukta ... vs V.R. Rudani & Ors on 21 April, 1989 Blog Links

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Smt. Nirmala Lal Wife Of Late ... vs Mr. S.R. Cutting (Bishop), Mr. ... on 20 November, 2007 Author: A Bhushan Bench: A Bhushan JUDGMENT Ashok Bhushan, J. 1. Heard Learned Counsel for the petitioner and Sri S.P. Sharma, Learned Counsel for the respondent No. 4. By this writ petition, the petitioner has prayed for a writ of mandamus, directing the respondents to regularise the services of the petitioner on the post of Assistant Teacher. 2. The petitioner claims to be appointed on 10.10.2004 as temporary Assistant Teacher by the respondent No. 2 which is an institution managed by Christian minority. The petitioner's case is that since the date of her appointment, she is performing her duties on consolidate salary. The service conditions of the petitioner are not governed by statutory rules nor the respondents No. 1 to 3 can be said to be authorities within the meaning of Article 12 of the Constitution of India. Learned Counsel for the petitioner contended that since the institution is imparting education, which is a public duty, a mandamus can very well be issued against the respondents. Learned Counsel for the petitioner in support of his submissions placed reliance on a Division Bench judgment of this Court in the case of

Dr. K.C. Charan v. Ashwin M. Singh and Ors. reported in 2007 (2) ALJ 77 and the judgment of the Apex Court in the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. R. Rudani and Ors. reported in AIR 1989 Supreme Court 1607. 3. The judgment of the apex Court in the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust (supra) has held that if the rights are purely of a private character no mandamus can be issued. Following was laid down in paragraph 14 of the aforesaid judgment: 14. 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. There activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. (SeeThe Evolving Indian Administrative Law by M.P. Jain (1983) p. 266). 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. 4. The apex Court in the aforesaid judgment has also held that those institutions which are receiving aid from the Government in those institution Government play a major role in control, maintenance and working of the educational institutions and those institution being affiliated to the Universities, the service conditions of those academic staffs were therefore, not of purely a private character. The present is a case where service conditions are of purely private in character as it is not backed by any statutory rules. 5. In view of the observations made in paragraph 14 as noted above, no mandamus can be issued. The judgment relied by Learned Counsel for the petitioner in the case of Dr. S.K.C. Charan (supra) was also a case where the Court held that there was no public duties imposed on minority institution which was running hospital and college. The Division Bench in para 5 of the said judgment observed as under: 5. In turn, Learned Counsel appearing for the petitioner relied upon the various judgments to establish that the writ lies even against the private body if it discharges public duty. Therefore we have to ascertain what is the nature of public duty herein. According to us nature and character of the duty of a private body establishes whether by such it discharges public or private duty. A part of the duty of a private body seems to be public duty when other is not. All the duties of a private body may not be discharge of

public duty. The respondent being a Christian Minority Organization is imparting medical service through the hospital and college to the people. Therefore, in that way it may discharge public duty to the third parties but that does not necessary mean service contract between the management and the employee therein will be treated as public duty. Institute is an autonomous body in that way.... 6. In the above case, the writ petition was dismissed on the ground of' maintainability. The proposition as laid down in para 5 as noted above, clearly lays down that a writ of mandamus cannot be issued in the facts of the present case. In view of the aforesaid, no mandamus can be issued to the respondents No. 1 to 3, which are private body. The writ petition is dismissed.