Mukta Sadguru Shree Mukta Jeevandasswami Suvarna Jay Vs. V.R. Rudani & Ors
 INSC 134 (21
K.J. (J) Shetty, K.J. (J) Oza, G.L. (J)
1989 AIR 1607 1989 SCR (2) 697 1989 SCC (2) 691 JT 1989 Supl. 128 1989 SCALE
INFO : R 1990 SC 415 (17)
of India, 1950: Article 226---'Any person or
authority'--Not to be confined only to statutory authorities or
instrumentalities of the State--Mandamus cannot be denied on the ground that
duty to be enforced is not imposed by statute.
No. 1 is a public trust and the other appellants are its trustees. The Trust
was running a science college at Ahmedabad. The college initially had temporary
affiliation to the Gujarat University. From June 15, 1973
onwards the college had permanent affiliation.
dispute between the University Area Teachers Association and the University was
referred to the Chancellor of the University who gave his award on June 12, 1970. The award was accepted by the
State Government as well as by the University. The latter issued direction to
all affiliated colleges to pay their teachers in terms of the award.
appellants instead of implementing the award served notice of termination upon
11 teachers on the ground that they were surplus, and approached the University
for permission to remove them. The Vice-Chancellor did not accept their
request. Thereupon the Trust decided to close down the college.
retrenched persons demanded arrears of salary and allowances, provident fund
and gratuity dues, and closure compensation. But the management did not pay
these dues. The employees then moved the High Court to issue a writ of mandamus
directing the Trust to pay the retrenched employees their legitimate dues. The
High Court accepted the writ petitions.
this Court, the appellants while conceding the just right of the employees to
get salary for 2 1/2 months and the provident fund dues, contended that the
Trust was entitled to get reimbursement from the Government in lieu of these
payments. As regards the arrears of salary.
payable under the Chancellor's award, the appellants contended that it was the
liability of the Government and not of the management of the college. As
regards the closure compensation it was contended that Ordinance 120E
prescribing compensation was ultra vires, and, at any rate, it was not binding
on the Trust since it was enacted prior to the affiliation of the college. It
was further contended that the Trust was a private body and was not subject to
the writ jurisdiction under Article 226.
the appeals, it was, Held:
Court is only concerned with the liability of the management of the college
towards the employees.
the relationship of master and servant, the management is primarily responsible
to pay salary and other benefits to the employees. The management cannot say
that unless and until the State compensates, it will not make full payment to
the staff. [703E-F]
The college had temporary affiliation even earlier to the Ordinance 120E. That
apart, the benefits under the Ordinance are to be given when the college is
closed which in this case was admittedly after the Ordinance was enacted.
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
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. [705C-D]
When the University takes a decision regarding the pay scales of the employees
of the aided institution, 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. When there 699 is existence of this
relationship, mandamus cannot be refused to the aggrieved party. [705E]
Article 226 confers wide powers on the High Court to issue writs in he nature
of prerogative writs. Under Article 226, writs can be issued to "any
person or authority". It can be issued "for the enforcement of any of
the fundamental rights and for any other purpose." [706F-G] Executive
Committee of Vaish Degree College v. Lakshmi Narain.,  2 SCR 1006; Deepak
Kumar Biswas v. Director of Public Instructions.,  2 SCC 252
distinguished Dwarkanath v. Income Tax Officer,  3 SCR 536, referred to.
This is a striking departure from the English Law.
the English Law, the prerogative writ of mandamus is confined only to public
authorities to compel performance of public duty, and 'public authority' there
means every body which is created by statute-and whose powers and duties are
defined by statute. [706E-F]
The words "any person or authority" used in Article 226 are 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. [707G-H; 708A-B]
cannot be denied on the ground that the duty to be enforced is not imposed by
the statute. [708B] Praga Tools Corporation v. Shri C.A. Imanual,  3
S.C.R. 773, referred to.
The judicial control over the fast expanding maze of bodies affecting the
rights of the people should not be put into water-tight compartment. It should
remain flexible to meet the requirements of variable circumstances. Mandamus is
a very wide remedy which must be easily available 'to reach injustice wherever
it is found'. Technicalities should not come in the way of granting that relief
under Article 226. [708F-G] 700
APPELLATE JURISDICTION: Civil Appeal Nos. 2704-06 of 1979.
the Judgment and Order dated 1.5.1979 of the Gujarat High Court in Special
Civil Appln. Nos. 133 of 1976, 325 and 384 of 1976.
Harish N. Salve, Ms. Palavi Shroff, S.S. Shroff, P.S. Shroff and R. Sasiprabhu
for the Appellants.
Suresh Shelat, P.H. Parekh and Ms. Gitanjali for the Respondents.
Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. These appeals,
by certificate, are from a common judgment of the Gujarat High Court giving
some monetary benefits to the respondents.
facts of the case cane be quite shortly stated:
appellant no. 1 is a public trust and other appellants are its trustees. The
trust was running a science college at Ahmedabad. The college initially had
temporary affiliation to the Gujarat University under the Gujarat University Act,
1949. From June 15,
1973 onwards, the
college had permanent affiliation under the said Act as amended by Gujarat Act
No. VI of 1973. The University teachers and those employed in the affiliated
colleges were paid in the pay scale recommended by the University Grants
stage, there was some dispute between the University Area Teachers Association
and the University about the implementation of certain pay scales. That
dispute, by agreement of parties, was referred to the Chancellor of the
University for decision. On June 12, 1970,
the Chancellor gave his award in the following terms:
That the revised pay scales as applicable to teachers who joined before April
1, 1966, should similarly be applicable to those who joined after April 1,
1966. and they be continued even after April 1, 1971.
That these pay scales be exclusive of dearness allowance. Therefore, fixing the
pay of the teachers who joined after April 1, 1966, no petition of existing dearness
701 allowance would be merged. However, with effect from April 1, 1971 in respect of both the categories
of teachers i.e. Pre-1966 and Post-1966 teachers, dearness allowance was to be
merged with the salary.
That arrears for the period from April 1, 1966 to March 31, 1970 accruing due
under the award were to be paid (without interest) in ten equal instalments
beginning from April 1, 1971.
The award was to be given effect to from April 1, 1970. There are other provisions also.
But we are not concerned with those provisions for our purpose." This
award of the Chancellor was accepted by the State Government as well as by the
University. The latter issued direction to all affiliated colleges to pay their
teachers in terms thereof. The appellants instead of implementing the award
served notice of termination upon 11 teachers on the ground that they were
surplus and approached the University for permission to remove them. But the
Vice-Chancellor did not accede to their request. He refused the permission
sought for. There then the management--we mean the trust--took a suicidal
decision. The decision was to close down the college to the detriment of
teachers and students.
affiliation of the college was surrendered and the University was informed that
the management did not propose to admit any student from the academic year
1975-76. It was again a unilateral decision without approval of the University.
The college was closed with effect from June 15, 1975 with the termination of services of
all the academic staff.
academic staff under law were entitled to terminal benefits. In fairness, that
ought to have been paid simultaneously while being removed. But the management
did not do that. The teachers waited with repeated representations only to get
a negative reply and ultimately, they moved the High Court with writ petitions
for the following reliefs:
issue a writ of mandamus or writ in the nature of mandamus or any other
appropriate writ or direction or order directing the respondent Trust and its
trustees respondents to pay to the petitioners their due salary and allowances,
the provident fund and gratuity dues in accordance with the Rules framed by the
University and pay them 702 compensation that would be payable to them under Ordinance
120 E and they may be further directed to pay the difference of pay payable to
them on the implementation of the U.G.C. pay scales in accordance with
Government Resolution as clarified by the Award passed by the Chancellor."
As is obvious from these reliefs, the retrenched persons were not agitating for
their continuance in the service.
seem to have made a tryst with the destiny and accepted the closure of the
college. They demanded only the arrears of salary, provident fund, gratuity and
the closure compensation which were legitimately due to them.
trust, however, resisted the writ petitions on every conceivable ground. The
objections raised by the trust may be summarised as follows:
The trust is not a statutory body and is not subject to the writ jurisdiction
of the High Court;
Resolution of the University directing payment to teachers in the revised pay
scales is not binding on the trust;
The University has no power to burden the trust with additional financial liability
by retrospectively revising the pay scales;
claim for gratuity by retrenched teachers is untenable. It is payable only to
teachers retiring, resigning, or dying and not to those removed on account of
closure of the college; and
Ordinance 120E prescribing closure compensation is ultra vires of the powers of
the syndicate. It is at any rate not binding on the trust, since it was enacted
prior to affiliation of the college.
High Court rejected all these submissions, and accepted the writ petitions by
delivering a lengthy judgment. The High Court thus directed the trust to make
payments in the following terms:
Amount of the remaining six instalments as per Chancellor's Award in respect of
arrears from 1.4. 1966 to 31.3. 1970 as detailed category No. 1 above,
Salary for the period from 1.4.1975 to 14.6.1975 as per revised payscales,
Compensation as per sub-clause (a) and (b) of clause (vii) of Ordinance 120 E,
Provident Fund dues as per the approved scheme." The trust by obtaining
certificate has appealed to this Court.
for the appellants mercifully concedes the just right of the teachers to get
salary for the period of two and a half months from 703 April 1, 1974 to June 14, 1974. He has also no objection to pay provident fund dues. He,
however, says that the trust is entitled to get reimbursement from the
Government and that question must be determined in these appeals. As regards
the arrears of salary payable under the Chancellor's Award, the counsel contends
that it is the liability of the Government and not of the management of the
college. As regards the closure compensation payable under the Ordinance, he
repeats the contention taken before the High Court. He also maintains that the
trust is a private body and is not subject to the writ jurisdiction under
heard the counsel for both parties, we are left with an impression that the
appellants are really trying to side-track the issue and needlessly delaying
the legitimate payments due to the respondents. The question whether the State
is liable to recompense the appellants in respect of the amount payable to the
respondents was not considered by the High Court and indeed could not have been
examined since the State was not a party to the proceedings. However, by the
persuasive powers of the counsel in this Court, the State has been impleaded as
a party in these appeals. Perhaps, this Court wanted to find out the reaction
of the State on the appellants' assertion for reimbursement. We heard counsel
for the State. He disputes the appellants' claim. In fact, he challenged the
claim on a number of grounds. He says that the State is under no obligation to
pay the appellants as against the sum due to the respondents. We do not think
that we need rule to day on this controversy. It is indeed wholly outside the
scope of these appeals. We are only concerned with the liability of the
management of the college towards the employees. Under the relationship of
master and servant, the management is primarily responsible to pay salary and
other benefits to the employees. The management cannot say that unless and
until the State compensates, it will not make full payment to the staff. We
cannot accept such a contention.
questions, however, remain for consideration: (i) The liability of the
appellants to pay compensation under Ordinance 120E and (ii) The
maintainability of the writ petition for mandamus as against the management of
the college. The first question presents no problem since we do not find any
sustainable argument. The power of the Syndicate to enact the Ordinance is not
in doubt or dispute. What is, however, argued is that the Ordinance is not
binding on the management since it was enacted before the college was
affiliated to the University. This appears to be a desperate contention
overlooking the 704 antecedent event. The 'counsel overlooks the fact that the
college had temporary affiliation even earlier to the Ordinance. That apart,
the benefits under the Ordinance shall be given when the college is closed. The
college in the instant case was closed admittedly after the Ordinance was
appellants cannot, therefore, be heard to contend that they are not liable to
pay compensation under the Ordinance.
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 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 and Others v. Lakshmi
Narain & Ors.,  2 SCR 1006 and (b) Deepak Kumar Biswas v. Director of
Public Instructions,  2 SCC 252.1n the first of the two cases, the
respondent institution was a Degree College managed by a registered
co-operative 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 Co-operative 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
decision in Vaish Degree College was followed in Deepak Kumar Biswas
case. There again a dismissed lecturer of a private college was seeking
reinstatement in service.
Court refused to grant the relief although it was found that the dismissal was
wrongful. This Court instead granted substantial monetary benefits to the
lecturer. This appears to be the preponderant judicial opinion because of the
common law principle that a service contract cannot be specifically enforced.
here the facts are quite different and, therefore, we need not 705 go thus far.
There is no plea for specific performance of contractual service. The
respondents are not seeking a declaration that they be continued in service.
They are not asking for mandamus to put them back into the college. They are
claiming only the terminal benefits and arrears of salary 'payable to them. The
question is whether the trust can be compelled to pay by a writ of mandamus? 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.
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. (See--The Evolving Indian Administration Law by M.P. Jain
 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
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 can not be refused to
the aggrieved party.
Law relating to mandamus has made the most spectacular advance. It may be
recalled that the remedy by prerogative writs in England started with very limited scope and suffered from many
procedural disadvantages. To overcome the difficulties, Lord Gardiner (the Lord
Chancellor) in pursuance of Section 3(1)(e) of the Law Commission Act, 1965,
requested the Law Commission "to review the existing remedies for the
judicial control of administrative acts and omission with a view to evolving a
simpler and more effective procedure." The Law Commission made their
report in March 1976 (Law Com No. 73). It was implemented by Rules of Court
(Order 53) in 1977 and given statutory force in 1981 by Section 31 of to
Supreme Court Act 1981. It combined all the former remedies into one proceeding
called Judicial Review. Lord Denning explains the scope of this "judicial
"At one stroke the courts could grant whatever relief was appropriate. Not
only certiorari and mandamus, but also declaration and injunction. Even
damages. The procedure was much more simple and expeditious. Just a summons
instead of a writ. No formal pleadings. The evidence was given by affidavit. As
a rule no cross-examination, no discovery, and so forth.
there were important safeguards. In particular, in order to qualify, the
applicant had to get the leave of a judge.
Statute is phrased in flexible terms. It gives scope for development. It uses
the words "having regard to". Those words are very indefinite. The
result is that the courts are not bound hand and foot by the previous law.
are to 'have regard to' it. So the previous law as to who are--and who are
not--public authorities, is not absolutely binding. Nor is the previous law as
to the matters in respect of which relief may be granted. This means that the
judges can develop the public law as they think best. That they have done and
are doing." (See--The Closing Chapter--by Rt. Hon Lord Denning p.122).
however, the prerogative writ of mandamus is confined only to public
authorities to compel performance of public duty. The 'public authority' for
them mean every body which is created by statute--and whose powers and duties
are defined by statue. So Government departments, local authorities, police
authorities, and statutory undertakings and corporations, are all 'public
authorities'. But there is no such limitation for our High Courts to issue the
writ 'in the nature of mandamus'. Article 226 confers wide powers on the High
Courts to issue writs in the nature of prerogative writs. This is a striking
departure from the English law.
Article 226, writs can be issued to "any person or authority". It can
be issued "for the enforcement of any of the fundamental rights and for
any other purpose".
Power of High Courts to issue certain writs (1) Notwithstanding anything in
Art. 32, every High Court shall have power, throughout the territories in
relation to which it exercises jurisdiction to issue to any person or authority
including in appropriate cases, any Government, within those territories
directions, orders or writs, includ707 ing (Writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, or any of them for
the enforcement of any of the rights conferred by Part II and for any other
XXX XXX " The scope of this article has been explained by Subba Rao., in Dwarkanath
v. Income Tax Officer,  3 SCR 536 at (540-41):
article is couched in comprehensive phraseology and it ex-facie confers a wide
power on the High Courts to reach injustice wherever it is found. The
Constitution designedly used a wide language in describing the nature of the
power, the purpose for which and the person or authority against whom it can be
exercised. It can issue writs in the nature of prerogative writs as understood
in England; but the use of the expression "nature", for the said
expression does not equate the writs that can be issued in India with those in
England, but only draws an analogy from them. That apart, High Courts can also
issue directions, orders or writs other than the prerogative writs. It enables
the High Courts to mould the reliefs to meet the peculiar and complicated
requirements of this country. Any attempt to equate the scope of the power of
the High Court under Article 226 of the Constitution with that of the English
Courts to issue prerogative writs is to introduce the unnecessary procedural
restrictions grown over the years in a comparatively small country like England
with a unitary form of Government into a vast country like India functioning
under a federal structure. Such a construction defeats the purpose of the
article itself." 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 Art. 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 708 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.
Tools Corporation v. Shri C.A. Imanual & Ors.,  3 SCR 773, this Court
said that a mandamus can issue against a person or body to carry out the duties
placed on them by the Statutes even though they are not public officials or
statutory body. It was observed (at 778):
is, however, not necessary that the person or the authority on whom the
statutory duty is imposed need be a public official or an official body. A
mandamus can issue, for instance, to an official or a society to compel him to
carry out the terms of the statute under or by which the society is constituted
or governed and also to companies or corporations to carry out duties placed on
them by the statutes authorising their undertakings. A mandamus would also lie
against a company constituted by a statute for the purpose of fulfilling public
Laws of England (3rd Ed. Vol. II p. 52 and onwards)." Here again we may
point out that mandamus cannot be denied on the ground that the duty to be enforced
is not imposed by the statute. Commenting on the development of this law,
Professor De Smith states: "To be enforceable by mandamus a public duty
does not necessarily have to be one imposed by statute. It may be sufficient
for the duty to have been imposed by charter, common law, custom or even
contract." (Judicial Review of Administrative 'Act 4th Ed. p. 540). We
share this view. The judicial control over the fast expanding maze of bodies effecting
the rights of the people should not be put into water-tight compartment. It
should remain flexible to meet the requirements of variable circumstances.
Mandamus is a very wide remedy which must be easily available 'to reach
injustice wherever it is found'.
should not come in the way of granting that relief under Article 226. We,
therefore, reject the contention urged for the appellants on the
maintainability of the writ petition.
result, the appeals fail and are dismissed but with a direction to the
appellants to pay all the amounts due to the respondents as 709 per the
judgment of the High Court. The amount shall be paid with 12 per cent interest.
The balance remaining shall be paid within two months from today. The
appellants shall also pay the costs of the respondents teachers which we
quantify at Rs. 26,000.