Page 1 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

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Page 2 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

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Page 3 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

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Page 4 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.

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Page 5 (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

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Page 6 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

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Page 7 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, 7

th

Edition, H.W.R.Wade and C.F.

Forsyth Administrative law , 10

th

Edition,

Michael J. Beloff in his article Pitch, Pool, Rink,

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Page 8 ……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

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Page 9 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

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Page 10 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.

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Page 11 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

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Page 12 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, 7

th

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

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Page 13 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

1

Page 14 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

1

Page 15 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

1

Page 16 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

1

Page 17 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

1

Page 18 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

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Page 19 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

1

Page 20 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

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Page 21 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

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Page 22 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

2

Page 23 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

2

Page 24 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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