T.Rengarajan v. The Director of School Education & Ors.

3is getting the benefits under ESI and EPF and therefore, it is not open tohim to claim that he is working against a sanctioned post in the School andhence, not entitled to seek for regularisation. He further submitted thatthe concept of regularisation is not applicable to the companies and thejudgments relied on by the petitioner are liable to be rejected.8.Learned counsel for the fourth respondent further submitted thatthe petitioner's wife has applied for a teaching post, when there was avacancy in one of the Schools run by the fourth respondent-Board, which waspermitted to be filled up by the educational authorities. As she hadsatisfied the norms for being selected as a Teacher, she was appointed inone of the Schools run by the fourth respondent. Whereas, the petitioner,who has failed in the selection process for appointment in the School,against the non-teaching vacancies, sanctioned by the educationalauthorities, has projected the case, as if, he is a staff of theeducational institution and sought for regularization.9.Learned counsel for the fourth respondent further submitted thatthe educational authorities, respondents 1 to 3, have no control orauthority over the fourth respondent-Board or its employees, as the Boardis a company registered under the Companies Act and governed by a Board ofDirectors and not a State, as defined in Article 12 of the Constitution ofIndia. In support of the contention that the petitioner has been appointedand being paid salary only by the Board, copies of the orders ofappointment issued in respect of some other Board staffs were produced.Copy of the acquintance register for teaching and non-teaching staffs fromJanuary' 2011, pertaining to the Madura College Board, Setupathi HigherSecondary School, Madurai, has also been produced. For the reasons statedsupra, he submitted that the writ petition is liable to be dismissed.10.Though copies of the proceedings of the District EducationalOfficer, Madurai, third respondent herein, granting aid to the staffs ofthe Madura College Higher Secondary School, Madurai and Setupathi HigherSecondary School, Madurai, for the months, from January' 2011 to May' 2011,are produced, no counter affidavit has been filed by respondents 1 to 3.Heard the learned counsel for the parties and perused the materialsavailable on record.Points11.Points for consideration in this writ petition are,(i)Whether Madura College Board, a company registered under theCompanies Act and amenable to writ jurisdiction under Article 226 ofthe Constitution of India?(ii)Whether a person appointed by the Board to function as Clerk in anyEducational Institution, established and managed by the Board, canseek for regularization in the Educational Institution, in which, heis working?Formation of Madura College Board12.A perusal of the Certification of Incorporation of Madura CollegeBoard, dated 27.01.1905, shows that under the provisions of Section 26 ofIndian Companies Act, VI of 1882, the Governor in Council was pleased todirect the Madura College Board to be registered with a limited liability, https://hcservices.ecourts.gov.in/hcservices/ 4but without the addition of the word "Limited" to its name, the followinglicence has been issued,"Whereas the "Madura College Board" is an associationformed under the Indian Companies Act, 1882, as a limitedcompany and whereas it has been proved to the satisfaction ofthe in Council that it is formed for the purposes set forth inthe Memorandum of Association, and that it is the intention ofthe Board to apply the profits or other income of the Board topromoting those purposes and that the payment of any dividendto is members is prohibited by the fourth article of theMemorandum of Association, the Government in Council ispleased to direct under the provisions of section 26 of thesaid act that the "Madura College Board" shall be registeredwith limited liability but the addition of the word "Limited"to its name."13.From perusal of the Memorandum and Articles of Association ofMadura College Board, dated 12.06.1905, the objects of the Associationinter-alia are,"a) To conduct and manage the institutions designated theMadura College, Setupati High School, and their Feeders andBranches now in existence or which shall hereafter come intoexistence in the Town of Madura or elsewhere in the District;and which are intended to promote Hindu Religion, HinduCulture and Hindu Civilisation and to strengthen the idealsfor which they stand.b) To enlarge or modify the aim and scope of theeducation imparted in the said institutions and their Feedersand Branches and change their designations according to suchimproved or modified conditions."14.Articles of Association of Madura College Board, Madurai, showsthat the various institutions comprised in para 3 clause (a) of theMemorandum of Association and others which have been founded and which mayhereafter come into existence as the case may be stand for the support,promotion, and the furtherance of Hindu Religion, Hindu Culture, HinduCivilization and to strengthen the ideals for which they stand.15.The control and management of the Board, as per Article 04, areas follows:"04. The Control and Management of the Madura Collegeand the various educational institutions aforesaid shall bevested in the following five bodies who shall perform theirrespective functions:1. The Madura College Board (General Body)2. The Board of Directors3. The Madura College Committee formed under theprovisions of the Tamil Nadu Private College (Regulation) Act1976, (President's Act 19 of 1976) https://hcservices.ecourts.gov.in/hcservices/

54. The Setupati Hr. Sec. School Committee formed underthe provisions of the Tamil Nadu recognized private schools(Regulation) Act 1973 (Tamil Nadu Act 29 of 1974), and5. The Madura College Hr. Sec. School Committee formed,under the provisions of the Tamil Nadu recognized privateschools (Regulation) Act, 1973 (Tamil Nadu Act 29 of 1974).16.The constitution of the Madura College Board, is given in Article05. Functions of the Madura College Board (General Body), provided inArticle 17 of the Articles of Association of Madura College Board are asfollows:"The Madura College Board (General Body) shall exercisethe following functions:i). Consideration and adoption of accounts, Directors'Report and Auditor's Report. ii). (As substituted) Election of Directors and theoffice bearers viz.a) President, a Secretary, and a Treasurer b) Nomination of all the elected Directors only of TheMadura College Board to i) The Madura College Committeeii) The Setupati Hr. Sec. School Committeeiii) The Madura College Higher Secondary SchoolCommittee iv) Nomination and election to the office of thePresident and Secretary or any other elected Director of theMadura College Board to the following:(a) The Madura College Committee(b) The Setupati Hr. Sec. School Committee(c) The Madura College Hr. Sec. School Committee.iii). Appointment of auditors and fixing theirremuneration.iv). Purchase, acquisition, alienation, mortgage, sale,creating a chare etc. of immovable properties.v). Remitting or writing off of debts and arrears etc. vi). Such other items that may be referred by the Boardof Directors, the Madura College Committee, the Setupati Hr.Sec. School Committee and Madura College Higher SecondarySchool to the General Body.17.Functions of the Board of Directors, as provided in Articles 18to 22, are as follows:"18. Function of the Board of Directors, the MaduraCollege Committee, the Setupati Higher Secondary SchoolCommittee and the Madura College Higher Secondary SchoolCommittee. The Management of the finance and the propertiesof the Madura College and the other institutions shall be https://hcservices.ecourts.gov.in/hcservices/ 6vested with the Board of Directors. The other administrativefunctions of all the institutions except the Town PrimarySchool vest with the respective Committees of theinstitutions while in the case of Town Primary School itshall vest with the Board of Directors.19. The Board of Directors shall pass the budget ofincome and expenditure, annual and supplementary, framed andpresented by the Secretary, with the assistance of the Headsof Institutions at a meeting held for the purpose with suchchanges and modifications, as it may deem fit at thebeginning of the year.20. All appointments, permanent or temporary, transfers,promotion suspension, removals and dismissals of the membersof the staff and fines imposed on them shall be determined bythe respective Committee of the respective institutions,while those pertaining to the Town Primary School shall bedetermined by the Board of Directors. While makingappointments the rules prescribed by the U.G.C., MaduraiKamaraj University, and the Director of Collegiate Education,shall be followed in respect of the Madura College and therules prescribed by the education Department, the Director ofSchool Education and the Govt, hall be followed in respect ofSetupati Higher Secondary School and M.C. Higher SecondarySchool and the Town Primary School.Proviso to article 20 both paragraphs:Both paragraphs to be deleted and substituted asfollows:The menial staff including cooks, servers, grinders, ofthe Hostels of the Madura College shall be appointed by theSecretary, Madura College Board in consultation with theWarden of the Hostels and the same shall be subject toratification by the Board of Directors.21. The President and the Secretary of the MaduraCollege Board shall be the President and Secretaryrespectively of the Madura College Committee, the SetupatiHigher Secondary School Committee and the M.C. HigherSecondary School Committee. The Secretary shall be the ChiefExecutive of Madura College Committee, Setupati HigherSecondary School Committee and the M.C. Higher SecondarySchool Committee respectively. "The Secretary of the MaduraCollege Board shall be the Manager of Town Primary School" beand hereby added at the end in Article 21.22. As regards to both Teaching and Non-Teaching staffof the Madura College, Setupati Higher Secondary School,Madura College Higher Secondary School, the heads ofinstitutions may recommend to the respective Committee fortaking necessary disciplinary action against any erringmembers of the staff. In the case of employees of Madura https://hcservices.ecourts.gov.in/hcservices/ 7College Hostels and Town Primary School, the heads ofinstitutions may recommend to the Board to take disciplinaryaction. Pending taking of the disciplinary action against theerring employee by the concerned committee or by the MaduraCollege Board, the heads of institutions may suspend theerring employee for any reasonable cause."18.Article 39 deals with the power to make by-laws and the saidArticle reads as follows:"The Board of Directors may from time to time framebylaws for the general management of the college and theaforesaid institutions, the conduct of business, for holdingof meetings, for framing the procedure therein and for othermatters as it may deem fir not inconsistent with theMemorandum and Articles of Association and such bylaws shallhave due effect." 19.Sub-Committees are dealt with in Article 40 and the same isextracted hereunder:"The Board of Directors may constitute special Sub-Committees consisting of members of the College Board(General Body) whether belonging to the Board of Directors ornot or of the College Staff, or of experts or of othersuitable persons outside the College Board consisting in partof each of these groups for investigation and reporting on orfor doing any special work connected with the executive,administrative or academic side of the College and the otheraforesaid institutions."Provisions20.Section 2(3) of the Tamil Nadu Recognised Private Schools(Regulation) Act, 1973 (hereinafter referred to as "the Act") defines,"Educational Agency" as follows:"(3) “Educational agency” in relation to:-(a) any minority school, means any person who, or body ofpersons which, has established and is administering orproposes to establish and administer such minority school; and(b) any other private school, means any person or body ofpersons or a company or corporation owned or controlled by thecentral or state government permitted or deemed to bepermitted under this Act to establish and maintain such otherprivate school.21.Section 2(7) of the abovesaid Act defines "Private School", whichmeans, a pre-primary, primary, middle or high school (or higher secondaryschool) or any other institution imparting education or training,established and administered or maintained by any person or body ofpersons, and recognized by the competent authority under this Act but doesnot include a school or an institution:- https://hcservices.ecourts.gov.in/hcservices/ 8a. Imparting technical or professional education; b. Established and administered or maintained by theCentral Government or the State Government or any localauthority;c. Maintained or approved by, or affiliated to, anyUniversity established by law; or d. Giving, providing or imparting religious instructionalone, but not any other instruction.22.As per Section 5 of the Act, the educational agency of everyprivate school proposed to be established on or after the date of thecommencement of this Act shall make an application to the competentauthority for permission to establish such school by the 30th September ofthe year preceding the year of opening of the school. As per Section 5-A,the educational agency of every higher secondary school which is a privateschool and in existence on the date of publication of the Tamil NaduRecognised Private Schools (Regulation) Amendment Act, 1987, in the TamilNadu Government Gazette, shall, before the expiry of six months from thatdate, make an application to the competent authority for permission tocontinue to run such school.23.Rule 5(5) of the Tamil Nadu Recognised Private Schools(Regulation) Rules, 1974, is the corresponding rule to the abovesaidSection and it deals with the requirement of the educational agency to seekpermission to continue to run such school, which was in existence from thedate of commencement of the Act.24.Section 6 of the abovesaid Act deals with the grant of permissionand it reads as follows:"On receipt of an application under sub section (1) ofsection 5 or sub-section (1) of section 5-a, as the case maybe, the competent authority;(a) may, after considering the particulars contained insuch application, grant or refuse to grant the permission; and(b) shall communicate its decision giving reasons thereforto the applicant within a period of four months from the dateof such receipt in complete shape by the competent authority;provided that the permission shall not be refused underthe section unless the applicant has been given an opportunityof making the representations."25.Rule 7 of the abovesaid Rules is the corresponding rule to theabovesaid Section. 26.Section 8 of the Act deals with the approval of transfer and asper sub-Section 1(a) of the said Section, whenever there is any change inthe constitution of the educational agency that agency shall apply to thecompetent authority for approval of such change. https://hcservices.ecourts.gov.in/hcservices/

927.Chapter IV deals with constitution of School Committee and itsfunctions. Sections 15 is extracted hereunder:"15. (1) every private school shall have a dulyconstituted school committee which shall include theheadmaster of the private school and the senior most teachersemployed in the private school provided in sub-section(2).Provided that where an educational agency is a company orcorporation owned or controlled by the central or stategovernment and such educational agency has established andadministering or maintaining more than one private school,such private schools may with the prior permission of theDirector concerned have a common school committee consistingof all heads of such private schools and such number of seniormost teachers employed in such private schools as provided insub section (2).(2) The number of representatives of the teachers on suchconstituted school committee shall be such as may beprescribed in the Rules issued under this Act and differentnumber of representatives may be prescribed for differentclasses of private schools.28.Rule 12 empowers the educational agency of every private schoolto constitute a School Committee.29.Section 16 of the abovesaid Act speaks about the Secretary of theSchool Committee and the said Section reads as follows:"16. (1) Every school committee shall have a secretarywho shall exercise such powers and perform such functions asmay be prescribed.(2) Every person holding office as president, secretary,manager or correspondent of private school or exercising thepowers of secretary under this Act on the date of thecommencement of this Act shall be deemed to be a secretaryunder this Act."30.Rule 13 is the corresponding rule to the abovesaid Section, whichstates that the educational agency shall nominate one of itsrepresentatives as Secretary of the School Committee. Provided that itshall be open to the educational agency to nominate the Headmaster asSecretary. Sub-Rule (3) of the said Rule, also states that the Secretaryof the School Committee shall function for and on behalf of the SchoolCommittee and the educational agency. As per Rule 21, every educationalagency shall send on or before the 1st January of each year, commencing from1st January 1975, to the District Educational Officer concerned a statementin triplicate of all movable properties and of all immovable properties. 31.Section 18 deals with the functions of the School Committee andthe responsibility of educational agency under the Act. Sub-Section (2) ofthe said Section states that the educational agency shall be bound by https://hcservices.ecourts.gov.in/hcservices/ 10anything done by the school committee in the discharge of the functions ofthat committee under this Act.32.Chapter IV-A deals with appointment of Special Officer in certaincases and as per Section 18-A, where the Government, on receipt of a reportfrom the Director or otherwise, are satisfied that the management of anyprivate school:-(i) is responsible, whether on or after the date ofcommencement of the Tamil Nadu Recognised Private School(Regulation) and Private Colleges (Regulation) Amendment Act,1982, for the mal administration, lapses or irregularities ofsuch private school; or(ii) has neglected whether on or after the date ofcommencement of the Tamil Nadu Recognised Private Schools(Regulation) and Private Colleges (Regulation) amendment Act,1982 to discharge any of the duties imposed or to perform anyof the functions entrusted to such management by or underthis Act, or any rule or order made or direction issuedthereunder, the Government may, after giving to suchmanagement an opportunity to make representation and forreasons to be recorded in writing, by an order suspend themanagement and appoint a special officer for a period notexceeding one year or till the reconstitution of themanagement( in accordance with the law applicable to thereconstitution of such management), whichever is later:Provided that in no case the maximum period of suchsuspension of management shall exceed two years irrespectiveof the reconstitution of the management in accordance withthe law applicable to the reconstitution of such management: Provided further that where, the management of anyminority school is suspended, the Government shall appoint aspecial officer belonging to that minority which has beenadministering the said minority school immediately proceedingsuch suspension.Explanation to the said Section states that, For the purpose of this Chapter:-(a) “management” includes the school committee or anyperson, body of persons, committee or any other governingbody, by whatever name called, in whom the power to manage oradminister the affairs of a private school is vested:Provided that the Board of Trustees, or the governingbody of Wakf Board, by whatever name called, constituted orappointed under any other law for the time being in forcerelating to the charitable and religious institutions andendowments and wakfs, shall be deemed to be a management forthe purposes of this Chapter; https://hcservices.ecourts.gov.in/hcservices/

1133.Section 27 of the Act states that the pay and allowances of anyteacher or other person employed in any private school shall be paid on orbefore such day of every month, in such manner and by or through suchauthority, officer or person, as may be prescribed. Section 28 of the Actstates that Chapter IV-A or any rule providing for all or any of thematters specified in the Chapter IV-A or any order made in relation to anysuch matter shall have effect not withstanding:-(a) anything contained in any :–(i) other law for the time being in force, or (ii) award, agreement or contract of service, whethersuch award, agreement or contract of service was made beforeor after the date of the commencement of this Act, or(iii) judgement, decree or order of court, Tribunal orauthority, or(b) that the rules relating to recognition of orpayment of grant, to private schools, had or have nostatutory force:"34.Proviso to Section 28 states that where, under any such award,agreement, contract of service or otherwise, any teacher or other personemployed in any private school is entitled to benefits in respect of anymatter which are more favourable to him than those to which he will beentitled under this chapter, such teacher or other person shall continue tobe entitled to the more favourable benefits in respect of that matter,notwithstanding that he receives benefits in respect of other matters underthis chapter.35.As per Section 30 of the Act, the educational agency shall on orbefore the prescribed date in each year, furnish to the competent authoritya statement (with such particulars as may be prescribed) of every:-a. movable property of not less than such value as maybe prescribed; andb. movable property of the private school.36.Rule 24 of the Rules deal with utilization of funds and propertyof private school and it reads as follows:"(1) The funds of the school shall be utilised for thebona fide purposes connected with the school, only with theprior permission of the District Educational Officer concerned.An appeal against the orders of the District EducationalOfficer shall lie to the Chief Educational Officer.(2) Where the educational agency seeks to divert the fundsfrom one purpose to another, it shall do so only afterobtaining prior permission of the District EducationalOfficer." https://hcservices.ecourts.gov.in/hcservices/

1237.Annexure III (vide Rule 19) of the Tamil Nadu Recognised PrivateSchools (Regulation) Rules, 1974, deals with the procedure for payment ofpay and allowances to teachers and other persons in private schools. Inrespect of High Schools and Higher Secondary Schools, the Secretary of HighSchool and Higher Secondary School shall submit every month to the DistrictEducational Officer, an application for monthly staff grant in the form.It shall be accompanied by a detailed statement of the staff employed fromfirst to the last day of the month. The statement shall be signed by boththe Headmaster and the Secretary of the School. The statement shall reachand District Educational Officer before the 22nd of every month. Based onthis statement the District Educational Officer shall sanction staff grantin the specified bill form, before the 25th of the month, at the latest soas to enable the Secretary to encash the bill on the first of thesucceeding month or any date authorised by the Director of School Educationand disburse the salaries of the employees on the same day.38.Section 33 of the Act speaks out untilisation of funds andproperty of private school, which states that, all the money collected,grants received and other property held by or on behalf of a private schoolshall be utilized for the purposes for which they are intended and shall beaccounted for by the educational agency in such manner as may beprescribed. Section 34 empowers the Government to take over the managementand and the said Section reads as follows:"(1) If on receipt of a report from the competentauthority or otherwise the Government are satisfied that theEducational agency of any private School has neglected todischarge any of the duties imposed on or, to perform any ofthe functions entrusted to that agency by or under this Act orany rule or order made or direction issued, thereunder andthat it is expedient in the interests of School education totake over the management of such private School, theGovernment may by order, in writing, take over the managementof such private School.Provided that the Government shall not initiate anyproceeding under this section to take over the management ofany private School unless they are satisfied that suspensionof the management under section 18-A will not be sufficient.(2) Before making an order under sub-section (1) theGovernment shall give the Educational agency an opportunity ofmaking its representation."39.As per Section 38, the account of every private School receivinggrant shall be audited at the end of every academic year by such authority,officer or person as may be prescribed and different authorities, officersor persons may by prescribed for different classes of private Schools. Thereport on the audit of the accounts shall be forwarded to the Educationalagency. The Educational agency shall, within such time as may beprescribed, submit that report together with the comments of that agency tothe competent authority.40.Section 39 of the Act empowers the competent authority to causean inspection or inquiry in respect of any private school, its buildings, https://hcservices.ecourts.gov.in/hcservices/ 13laboratories, libraries, workshops and equipment and also of theexaminations, teaching and other work conducted or done by the privateSchool, to be made by such person or persons as it may direct and to causean inquiry to be made in respect of any other matter, connected with theprivate School and the Educational agency shall be entitled to berepresented there at. Section 40 of the Act deals with furnishings ofreturns, etc., and it is extracted hereunder:"40. Every educational agency shall, within such timeor within such extended time as may be fixed by thecompetent authority in this behalf furnish to the competentauthority such returns, statistics and other information asthe competent authority may, from time to time, require."41.Section 48 deals with the offences by the companies. Explanationfor the purpose of the abovesaid Section reads as follows:"(a) “company” means any body corporate and includes afirm, society or other association of individuals and (b) “director” in relation to—(i) A firm, means a partner in the firm.(ii) A society or other association of individuals, meansthe person who is entrusted under the rules of the society orother association, with the management of the affairs of thesociety or other association, as the case may be.42.Section 53 deals with the power of the Civil Court and it statesthat no civil court shall have jurisdiction to decide or deal with anyquestion which is by or under the act required to be decided or dealt withby any authority or officer mentioned in the Act. Section 53-A deals withthe settlement of disputes as to the educational agency and it reads asfollows:"(1) Notwithstanding anything contained in section 53,whenever any dispute as to the constitution of anyeducational agency, or as to whether any person or body ofpersons, is an educational agency, or as to whether agency,in relation to any private school, or as the appointment ofsecretary of the school committee, arises such dispute may bereferred by the persons interested or by the competentauthority to the civil court having jurisdiction, for itsdecision.(2) Pending the decision of the civil court on a disputereferred to it under sub-section (1), or the making of aninterim arrangement by the civil court for the running of theprivate school, the Government may nominate an officer todischarge the functions of the educational agency, the schoolcommittee or the secretary, as the case may be, in relationto the private school concerned."43.Section 25 of the Companies Act, empowers the Central Governmentto dispense with "Limited" in the name of charitable or other company andthe said section reads as follows: https://hcservices.ecourts.gov.in/hcservices/ 14"(1) Where it is proved to the satisfaction of the CentralGovernment that an association-(a) is about to be formed as a limited company forpromoting commerce, art, science, religion, charity or anyother useful object; and(b) intends to apply its profits, if any, or other incomein promoting its objects, and to prohibit the payment of anydividend to its members.the Central Government may, by licence, direct that theassociation may be registered as a company with limitedliability, without the addition to its name of the word"Limited" or the words "Private Limited".(2) The association may thereupon be registeredaccordingly; and on registration shall enjoy all the privilegesand (subject to the provisions of this section) be subject toall the obligations, of limited companies."Issue No.1:44.Regarding Issue No.1, this Court deems it fit to consider whethera Society or Public Trust, runs any educational institution, funded by theGovernment, is amenable to writ jurisdiction. It is also necessary toconsider as to whether the words "any person" or "authority", occurringunder Article 226 of the Constitution of India, would include "Company"registered under Section 25 of the Companies Act, without the word"Limited", formed for promoting commerce, art, science, religion, charityor any other useful object, like in the instant case, education.45.While dealing with an issue as to whether an unaided privateeducational institution/polytechnic would be amenable to the writjurisdiction, this Court in P.Jeyachandran v. Director of TechnicalEducation reported in 2010 (2) MLJ 934, after considering various decisionson the point, at Paragraphs 50 to 52, held as follows:"50.Recognition is the status granted by the'appropriate authority', under the relevant statute orgovernment order, as the case may be. Article 226 of theConstitution of India is not confined to statutoryauthorities alone. Law has undergone a sea change thatjurisdiction of the Courts cannot be restricted only againstState or instrumentality of State. As the guarantee providedunder this Article is wide enough to cover both fundamentalrights as well as non-fundamental rights against any personor authority, the powers of the Court under Article 226 ofthe Constitution of India, cannot be restricted. Thephraseology used in Article 226 confers wide power on theHigh courts to reach injustice, wherever it is found. Whileexercising the power under Article 226 of the Constitution ofIndia, the task of the Court is to find out whether the dutyperformed by the person or authority is a public duty orwhether there is any public law element involved in therights sought to be adjudicated between the parties. The https://hcservices.ecourts.gov.in/hcservices/ 15existence of pervasive control of the State or the authorityover private educational institutions would give a clearindication that such institutions would be amenable to writjurisdiction. Per contra, if there is a total monopoly ofthe institution or entity without any interference from thestatutory bodies or instrumentalities of the State enjoinedwith a public duty, then such institution is not amenable towrit jurisdiction. 51.In the light of the guiding principles of lawstated supra, the contention of the learned counsel for thesecond respondent-Polytechnic is not amenable to thejurisdiction of this Court under Article 226 of theConstitution of India, cannot be countenanced.52.It is now well settled that private educationalinstitutions supplement the functions performed by theinstitutions of the State in educating the people. It is notan independent activity. It is an activity supplemental tothe principle activity carried on by the State. No privateeducational institution can survive or subsist withoutrecognition and/or affiliation. The bodies which grantrecognition and/or affiliation are the authorities of theState. In such a situation, it is obligatory in the interestof general public - upon the authority granting recognitionor affiliation to insist upon such conditions as areappropriate to ensure not only education of requisitestandards, but also fairness and equal treatment. The conceptof fairness and equal treatment cannot restricted only toadmission of students in these institutions."46.Some of the decisions dealt with by this Court inP.Jeyachandran's case are as follows:"14.In Andi Mukta Satguru Shree Muktajee Vandas SwamiSuvarna Jayanti Mahotsav Smarak Trust and others v. V.R.Rudani andothers reported in 1989 (II) LLJ 324, the appellant was a ScienceCollege run by a Public Trust, affiliated to Gujarat University.The dispute between the University Area Teachers Association andthe University about implementation of pay scales was referred tothe Chancellor of the University for decision. Instead ofimplementing the award of the Chancellor as accepted by theUniversity and the State Government, the Trust served notice oftermination on 11 teachers on the ground that they were surplusand applied to the University for permission to remove them.Since the Vice-Chancellor did not grant permission, the Trusttook a decision to close down the college. Accordingly, theaffiliation of the college was surrendered and that the collegewas closed without approval of the University. The services ofall academic staff were terminated and the terminal benefits werenot paid. A Writ petition was filed claiming terminal benefitsand arrears of salary and that the writ petition was allowed.Hence, SLP was filed by the appellant-Trust. While consideringthe issue as to whether a Writ Petition would lie against theManagement and College, a private body, the Supreme Court, at https://hcservices.ecourts.gov.in/hcservices/ 16paragraphs 20 and 22, held as follows:"The words "any person or authority" used inArticle 226 are therefore not to be confined only tostatutory authorities and instrumentalities of theState. They may cover any other person or bodyperforming public duty. The form of the body concernedis not very much relevant. What is relevant is thenature of the duty imposed on the body. The duty mustbe judged in the light of positive obligation owed bythe person or authority to the affected party. Nomatter by what means the duty is imposed, if a positiveobligation exists, mandamus cannot be denied. (para 20) Mandamus cannot be denied on the ground that the duty to be enforced is not imposed by charter, commonlaw, custom or even contract. Judicial control overthe fast expanding maze of bodies affecting the rightsof the people should not be put into watertightcompartment. It should remain flexible to meet therequirements of variable circumstances. Mandamus is avery wide remedy which must be easily available toreach injustice wherever it is found. Technicalitiesshould no come in the way of granting that relief underArticle 226. (para 22)"15.While considering the objection regardingmaintainability of a Writ Petition filed against the appellant,the Supreme Court, at Paragraphs 14 and 15, held as follows:"There is no plea for specific performance ofcontractual service. The teachers are not seeking adeclaration that they be continued in service. Theyare not asking for mandamus to put them back into thecollege. They are claiming only the terminal benefitsand the arrears of salary payable to them. If therights are purely of a private character, no mandamuscan issue. If the management of the college is purelya private body, with no public duty, mandamus will notlie. These are two exceptions to mandamus. Once theseare absent and when the party has no other equallyconvenient reedy, mandamus cannot be denied. To theTrust managing the affiliated college, public money isgiven as government aid plays a major role in thecontrol, maintenance and working of educationalinstitutions. The aided institutions like GovernmentalInstitutions discharge public function by way ofimparting education to students. They are subject tothe rules and regulations of the affiliatinguniversity. Their activities are closely supervisedby the University authorities. Employment in suchInstitution is not devoid of any public character. Soare the service conditions of the academic staff.Their service conditions are not purely of a private https://hcservices.ecourts.gov.in/hcservices/ 17character and such service conditions has super-addedprotection by university decisions creating a legalright duty relationship between the staff and themanagement. When there is existence of thisrelationship, mandamus cannot be refused. (Paras 14 and15)16.In Miss Payal Gupta v. Lt. Governor of Delhi & others,1994 III AD (Delhi) 1119, a Division Bench of the High court dealtwith the case of a student who was denied of admission by aprivate school. While dealing with the objections regardingmaintainability of the writ petition, the Division Bench held asfollows: "The question whether a writ could lie against a recognised unaided school is no longer res integra. Itwas contended by Mr.Kaul that the Cambridge School wasnot a State and that it was run by a society registeredunder the Societies Registration Act. Jurisdiction ofthis Court under Article 226 of the Constitution is notconfined to the authority which is a State within themeaning of Article 12 of the Constitution. In KuldipMehta Vs. Union of India and others, 1993 (2) DelhiLawyers 196, this Court has taken the view that Article226 also speaks of directions and orders which can beissued to any person or authority. In that case a writwas issued against a public limited company which hadnominees on its Board of Directors from the NationalTextile Corporation Limited, a Government company. InDwarka Nath Vs. Income-tax Officer, Special Circle DWard, Kanpur and another, [AIR 1966 SC 81], referringto the scope of Article 226 of the Constitution, thecourt observed as under:"This article is couched in comprehensivephraseology and it ex facie confers a wide power on theHigh Courts to reach injustice wherever it is found.The Constitution designedly used a wide language indescribing the nature of the power, the purpose forwhich and the person or authority against whom it canbe exercised. it can issue writs in the nature ofprerogative writs as understood in England; but thescope of those writs also is widened by the use of theexpression "nature", for the said expression does notequate the writs that can be issued in India with thosein England but only draws an analogy from them. Thatapart, High Courts can also issue directions, orders orwrits other than the prerogative writs. In enables theHigh Courts to mould the reliefs to meet the peculiarand complicated requirement of this country. Anyattempt to equate the scope of the power of the HighCourt under Art. 226 of the Constitution with that ofthe English Courts to issue prerogative writs is to https://hcservices.ecourts.gov.in/hcservices/ 18introduce the unnecessary procedural restrictions grownover the years in a comparatively small country likeEngland with a unitary form of Government to a vastcountry like India functioning under a federalstructure. Such a construction defeats the purpose ofthe article itself. To say this is not to say that theHigh Courts can function arbitrarily under thisArticle. Some limitations are implicitly in the articleand others may be evolved."17.In Shri V.S.Rahi v. The Lt. Governor of Delhi & others[1994 IV AD (Delhi) 1190], A Division Bench of the Delhi HighCourt considered the question as to whether a teacher working in aprivate school can maintain a writ petition for pension. AtParagraph 5, the Division Bench held as follows:"Primarily two questions require to be considered;(i) Whether the petitioner can invoke the writjurisdiction to seek a relief which is certainly againsta private school; and (ii) Whether petitioner isentitled to the benefit of pension as contended by him.The first question need not detain us long in view ofthe decision of the Supreme Court in Miss Raj Soni Vs.Air Officer in charge Administration and Another, [1990(3) SCC 261] in the said case, the Supreme Courtentertained a petition filed by a teacher under Article32 of the Constitution, against a private school whichwas not receiving any aid, to enforce the provisions ofthe Act and the Rules, and granted her the benefit ofthe age of retirement as 60 years, while, under therules of the school she was to retire at the age of 58years."18.In Rakesh Gupta v. State of Hyderabad reported in AIR1996 AP 413, the Division Bench of the Andra Pradesh High Courthas considered the scope and extent of power under Article 226 ofthe Constitution of India and use of the word or expression "anyperson or authority" occurring under Article 226 of theConstitution of India. While discussing the scope of Article 226,the Court held as follows:"the language used in Art. 226 of the Constitutionof India shows, that the Court has got power throughoutthe territories in relation to which it exercisesjurisdiction to issue to any person or authorityincluding in appropriate cases any Government withinthose territories, directions, orders or writs,including writs in the nature of Habeas Corpus,Mandamus, Prohibition, quo warranto and Certiorari orany of them for the enforcement of any of the rightsconferred by Part III of the Constitution and for anyother purpose. The words "to any person or authority"and the words "for the enforcement of any of the rights https://hcservices.ecourts.gov.in/hcservices/ 19conferred by Part III and for any other purpose" leaveno scope to question the authority of the Court to issuea writ even to a private person; whether it is a livingbeing or a legal entity as a juridical person. .....Itis, however, not unknown that exceptions have been madeby the Courts and such exceptions are found justifiablefor reasons of the conduct of the parties which on theone hand appeared to affect only a private law, but onthe other hand has effect upon the action in rem."19.Division Bench of the Andra Pradesh High Court furtherobserved as follows:"The word 'authority' in Article 226 of theConstitution of India is not restricted to the samemeaning as the words 'other authorities' should receivein the definition of the 'State' in Article 12 of theConstitution of India. The former must receive aliberal meaning. The latter is relevant only for thepurpose of enforcement of fundamental rights. The HighCourt's power under Article 226 of the Constitution,however, unlike the power of the Supreme Court underArticle 32 of the Constitution is more pervasive in thesense that it can issue writs for enforcement offundamental rights as well as non-fundamental rights.The words 'any person or authority' used in Article 226are, therefore, not to be confined only to statutoryauthorities and instrumentalities of the State. Theymay cover any other person or body performing publicduty. The form of the body concerned is not very muchrelevant. What is relevant is the nature of the dutyimposed on that body. The duty must be judged in thelight of positive obligation owed by the person orauthority to the affected party, no matter by whatmeans the duty is imposed; andThe judicial control over the fast expanding mazeof bodies affecting the rights of the people should notbe put into water-tight compartments. It should remainflexible to meet the requirements of variouscircumstances.20.In K.Krishnamacharyulu v. Sri Venkateswar Hindu Collegeof Engineering reported in 1997 (3) SCC 571, the appellant and sixothers were appointed on daily wages to the post of Lab Assistantas non-teaching staff in the respondent-private college. TheWrit Petition and Appeal seeking equal pay were dismissed.Aggrieved by the same, they moved the Apex Court. The questionwhich came up for consideration before the Supreme Court was whenthere were no statutory rules issued regarding pay scales to befixed on par with the Government employees and the privateInstitution, being not in receipt of any grant-in-aid, whetherthe Writ Petition under Article 226 of the Constitution ismaintainable? The Supreme Court, at Paragraph 4, answered the https://hcservices.ecourts.gov.in/hcservices/ 20question as follows:"It is not in dispute that executive instructionsissued by the Government have given them the right toclaim the pay scales so as to be on a par with thegovernment employees. The question is when there are nostatutory rules issued in that behalf, and theinstitution, at the relevant time, being not in receiptof any grants-in-aid; whether the Writ Petition underArticle 226 of the Constitution of India is not;maintainable? In view of the long line of decisions ofthis Court holding that when there is an interestcreated by the Government in an institution to imparteducation, which is a fundamental right of thecitizens, the teachers who impart the education get anelement of public interest in the performance of theirduties. As a consequence, the element of publicinterest requires regulation of the conditions ofservice of those employees on a par with governmentemployees. In consequence, are they also not entitledto the parity of the pay scales as per the executiveinstructions of the Government? It is not also indispute that all the persons who filed the WritPetition along with the appellant had later withdrawnfrom the Writ Petition and thereafter the respondentManagement paid the salaries on a par with thegovernment employees. Since the appellants areinsisting upon enforcement of their right through thejudicial pressure, they need and seek the protection oflaw. We are of the view that the State has obligationto provide facilities and opportunities to the peopleto avail of the right to education. The PrivateInstitutions cater to the need of providing educationalopportunities. The teacher duly appointed to a post inthe private institution also is entitled to seekenforcement of the orders issued by the Government. Thequestion is as to which forum one should approach. TheHigh Court has held that the remedy is available underthe Industrial Disputes Act. When an element of PublicInterest is created and the Institution is catering tothat element the teacher, being the arm of theInstitution, is also entitled to avail of the remedyprovided under Article 226 the Jurisdiction part isvery wise. It would be a different position, if theremedy is a private law remedy. So, they cannot bedenied the same benefit which is available to others.Accordingly, we hold that the Writ Petition ismaintainable. They are entitled to equal pay so as tobe on a par with government employees under Article 39(d) of the Constitution."22.The Division Bench of this Court in John Paulraj A.P. v.CBSE, Chairman, New Delhi, reported in 1999 (III) LLJ (Supp.) 628, https://hcservices.ecourts.gov.in/hcservices/ 21considered a case as to whether a Writ Petition filed against anunaided educational institution can be brought within the ambit ofArticle 12 of the Constitution of India. In the said case, theappellant was terminated from service, without proper reasons. Alearned single Judge, who adjudicated the validity of the saidorder, dismissed the Writ Petition, agreeing with the contentionof the School that an unaided private school is not amenable toWrit jurisdiction, since it is not a State or instrumentality ofthe State within the ambit of Article 12 of the Constitution ofIndia. Before the appeal, it was contended inter alia thatavailing grant or aid from the Government cannot by itself, be adeciding factor for holding that a Writ Petition as maintainable.Taking into consideration, the nature of public duty, i.e.,imparting of education to the students at large, as envisagedunder Article 41 of the Constitution of India and afterconsidering a catena of decisions, the Division Bench held that aWrit would lie against unaided private educational institutionalso, if an element of public interest and a corresponding publicduty is attracted in the proceedings sought to be challenged insuch Writ Petition. 23.A passage from the judgment in Unni Krishnan, J.P. v.State of Andra Pradesh reported in AIR 1993 SC 2179, extracted inJohn Paulraj's case, would be useful and the same is reproducedhereunder:"The fact that these institutions perform animportant public function coupled with the fact thattheir activity is closely intertwined with governmentalactivity, characterises their action as 'State action'.At the minimum, the requirement would be to act fairlyin the matter of admission of students and probably inthe matter of recruitment and treatment of itsEmployees as well.The private educational institutions merelysupplement the effort of the State in educating thepeople, as explained above. It is not an; independentactivity. It is an activity supplemental to theprincipal activity carried on by the State."24.In Ramdeo Baba Kamala Nehru Engineering College v.Sanjay Kumar reported in 2002 (10) SCC 487, students asked forrefund of tuition fees and caution deposit paid by them. The samewas denied and they preferred a Writ Petition. The High Courtallowed the same, directing the appellant-Engineering College torefund the amount. Overruling the objections raised by theCollege that the High Court should not entertain a Petition underArticle 226 of the Constitution of India and declaring the law,the appellant-College is amenable to Writ jurisdiction, theSupreme Court, at paragraph 5, held that, "The respondent had sought admission against apayment seat. In the event of the admission beingcancelled at the behest of either side, the cautionmoney ad the tuition fee were liable to be refunded https://hcservices.ecourts.gov.in/hcservices/ 22subject to the permissible deductions. We do not deemit appropriate to uphold the technical plea of theappellants and drive the respondent student to the needof filing a civil suit. The view taken by the HighCourt is just and equitable and therefore need not beinterfered with."26.In Islamic Academy of Education v. State of Karnatakareported in AIR 2003 SC 3724, the petitioners therein were mostlyunaided professional educational institutions, both minority andnon-minority. It was inter alia contended that the privateunaided professional educational institutions, had been givencomplete autonomy not only as regards admission of students, butalso determination of their own fee structure. It was alsocontended that these institutions could fix their own feestructure, which could include a reasonable revenue surplus forpurposes of development of education and expansion of theinstitution, and that so long as there was no profiteering orcharging of capitation fees, there could be no interference by theCourt. Per contra, on behalf of the Union of India, variousState Governments and some students, who sought to intervene, itwas submitted that right to set up and administer an educationalinstitution was not an absolute right, and this right is subjectto reasonable restrictions and that, this right is subject (evenin respect of minority institutions) to national interest. It wasfurther submitted that imparting education was a State function,but, due to resources crunch, the States were not in a position toestablish sufficient number of educational institutions. Thoughthe issue was with regard to fee structure, the Supreme Court alsoconsidered as to whether the Government is denuded of its power tolay down any law, just because the Institutions were oncerecognised or affiliated to the examining body. At Paragraphs 217and 219, the Supreme Court, held as follows:"Although the minorities have a right to establishinstitutions of their own choice, they admittedly donot have any right of recognition or affiliation forthe said purpose. They must fulfill the requirements oflaw as also other conditions which may reasonably befixed by the appropriate Government or the University.(para 217)It cannot be said that once recognition has beengranted, no further restriction can be imposed. Thereexist some institutions in this country which are morethan a century old. It would be too much to say thatonly because an institution receivesrecognition/affiliation at a distant point of time theappropriate Government is denuded of its power to laydown any law in imposing any fresh condition despitethe need of change owing to passage of time.Furthermore, the Parliament or the State Legislatureare not denuded of its power having regard torestrictions that may satisfy the test of Clause (6) ofArticle 19 of the Constitution of India or regulationsin terms of Art. 30 depending upon the national https://hcservices.ecourts.gov.in/hcservices/ 23interest/public interest and other relevant factors.However, the State/University while grantingrecognition or the affiliation cannot impose anycondition in furtherance of its own needs or in pursuitof the Directive Principles of State Policy. (para 218and 219)" 27.In Sushmita Basu v. Ballygunge Siksha Samity and othersin 2004 (4) LLN 195 (SC), the teachers of a recognised PrivateSchool filed a Writ Petition for implementation of the third paycommission. The management, though implemented therecommendations of the third pay commission in the sense that thesalaries of the teachers were hiked in terms of the said report,the institution refused to give retrospective effect to theenhancement. In otherwords, the institution refused to give effectto the recommendations of the Third Pay Commission with effectfrom 1st January 1988, as recommended by the Commission and asimplemented by the Government. Though the Supreme Court,accepted the views expressed earlier in K.Krishnamacharyulu andothers v. Sri Venkateswara Hindu College of Engineering andanother reported 1997 (3) SCC 571, that interference under Article226 of the Constitution of India for issuing the Writ against thePrivate Institution like the first respondent therein would bejustified if Public law element is involved and in Private lawremedy, no Writ Petition would lie and Writ of Mandamus cannot beissued to recognised Private School to fix the salaries toteaching and non-teaching staffs to remove all the anomalies. TheSupreme Court, on principle, has affirmed the dictum that WritPetition would lie against Private Educational Institution, butdisallowed the claim of the teachers for giving retrospectiveeffect to the pay fixation. 28.In P.A. Inamdhar v. State of maharastra reported in 2005(6) SCC 537, the Supreme Court after considering a catena ofdecisions dealt with the right of educational institution infixing the fee structure and its autonomy, at para 89 held that "89. Education, accepted as a useful activitywhether for charity or for private is an occupation.Nevertheless, it does not cease to be a service toSociety. And even though an occupation, it cannot beequated to a trade or a business".29.In Binny Ltd.,v. Sadasivan reported in 2005 (6) SCC 657,the maintainability of a Writ Petition against private employers,was the moot question. The Supreme Court, after considering acatena of decisions, held that a Writ of Mandamus or remedy underArticle 226 of the Constitution of India, though pre-eminently apublic law remedy, is available against a private body or aperson, if (a) such private body is discharging public function,(b) a decision sought to be corrected or enforced is in dischargethereof and (c) public duty imposed is not of a discretionarycharacter. The Supreme Court further held that the scope ofmandamus is determined by the nature of duty to be enforced https://hcservices.ecourts.gov.in/hcservices/ 24rather than the identity of the authority, against whom it issought. While explaining what is public function, the ApexCourt, held that a body is performing a "public function" when itseeks to achieve some collective benefit for the public or asection of the public and is accepted by the public or thatsection of the public as having authority to do so. Bodies,therefore exercise public function, when they intervene orparticipate in social or economic affairs in the public interest.The Dictum of the Supreme Court is explained in Paragraphs 9 to 11and 29 and the same is extracted hereunder:"9. The superior court’s supervisory jurisdictionof judicial review is invoked by an aggrieved party inmyriad cases. High Courts in India are empowered underArticle 226 of the Constitution to exercise judicialreview to correct administrative decisions and underthis jurisdiction the High Court can issue to anyperson or authority, any direction or order or writsfor enforcement of any of the rights conferred by PartIII or for any other purpose. The jurisdictionconferred on the High Court under Article 226 is verywide. However, it is an accepted principle that this isa public law remedy and it is available against a bodyor person performing a public law function. Beforeconsidering the scope and ambit of public law remedy inthe light of certain English decisions, it isworthwhile to remember the words of Subba Rao, J.expressed in relation to the powers conferred on theHigh Court under Article 226 of the Constitution inDwarkanath v. ITO,“This article is couched in comprehensivephraseology and it ex facie confers a wide power on theHigh Courts to reach injustice wherever it is found.The Constitution designedly used a wide language indescribing the nature of the power, the purpose forwhich and the person or authority against whom it canbe exercised. It can issue writs in the nature ofprerogative writs as understood in England; but thescope of those writs also is widened by the use of theexpression ‘nature’, for the said expression does notequate the writs that can be issued in India with thosein England, but only draws an analogy from them. Thatapart, High Courts can also issue directions, orders orwrits other than the prerogative writs. It enables theHigh Court to mould the reliefs to meet the peculiarand complicated requirements of this country. Anyattempt to equate the scope of the power of the HighCourt under Article 226 of the Constitution with thatof the English courts to issue prerogative writs is tointroduce the unnecessary procedural restrictions grownover the years in a comparatively small country likeEngland with a unitary from of Government into a vastcountry like India functioning under a federalstructure. Such a construction defeats the purpose ofthe article itself.”10. The writ of mandamus lies to secure the https://hcservices.ecourts.gov.in/hcservices/ 25performance of a public or a statutory duty. Theprerogative remedy of mandamus has long provided thenormal means of enforcing the performance of publicduties by public authorities. Originally, the writ ofmandamus was merely an administrative order from theSovereign to subordinates. In England, in early times,it was made generally available through the Court ofKing’s Bench, when the Central Government had littleadministrative machinery of its own. Early decisionsshow that there was free use of the writ for theenforcement of public duties of all kinds, for instanceagainst inferior tribunals which refused to exercisetheir jurisdiction or against municipal corporationswhich did not duly hold elections, meetings, and soforth. In modern times, the mandamus is used to enforcestatutory duties of public authorities. The courtsalways retained the discretion to withhold the remedywhere it would not be in the interest of justice togrant it. It is also to be noticed that the statutoryduty imposed on the public authorities may not be ofdiscretionary character. A distinction had always beendrawn between the public duties enforceable by mandamusthat are statutory and duties arising merely fromcontract. Contractual duties are enforceable as mattersof private law by ordinary contractual remedies such asdamages, injunction, specific performance anddeclaration. In the Administrative Law (9th Edn.) bySir William Wade and Christopher Forsyth (OxfordUniversity Press) at p.621, the following opinion isexpressed:“A distinction which needs to be clarified is thatbetween public duties enforceable by mandamus, whichare usually statutory, and duties arising merely fromcontract. Contractual duties are enforceable as mattersof private law by the ordinary contractual remedies,such as damages, injunction, specific performance anddeclaration. They are not enforceable by mandamus,which in the first place is confined to public dutiesand secondly is not granted where there are otheradequate remedies. This difference is brought out bythe relief granted in cases of ultra vires. If forexample a minister or a licensing authority actscontrary to the principles of natural justice,certiorari and mandamus are standard remedies. But if atrade union disciplinary committee acts in the sameway, these remedies are inapplicable: the rights of itsmembers depend upon their contract of membership, andare to be protected by declaration and injunction,which accordingly are the remedies employed in suchcases.”11. Judicial review is designed to prevent thecases of abuse of power and neglect of duty by publicauthorities. However, under our Constitution, Article226 is couched in such a way that a writ of mandamuscould be issued even against a private authority. https://hcservices.ecourts.gov.in/hcservices/ 26However, such private authority must be discharging apublic function and the decision sought to be correctedor enforced must be in discharge of a public function.The role of the State expanded enormously and attemptshave been made to create various agencies to performthe governmental functions. Several corporations andcompanies have also been formed by the Government torun industries and to carry on trading activities.These have come to be known as public sectorundertakings. However, in the interpretation given toArticle 12 of the Constitution, this Court took theview that many of these companies and corporationscould come within the sweep of Article 12 of theConstitution. At the same time, there are privatebodies also which may be discharging public functions.It is difficult to draw a line between public functionsand private functions when they are being discharged bya purely private authority. A body is performing a“public function” when it seeks to achieve somecollective benefit for the public or a section of thepublic and is accepted by the public or that section ofthe public as having authority to do so. Bodiestherefore exercise public functions when they interveneor participate in social or economic affairs in thepublic interest. In a book on Judicial Review ofAdministrative Action (5th Edn.) by de Smith, Woolf &Jowell in Chapter 3, para 0.24, it is stated thus:“A body is performing a ‘public function’ when itseeks to achieve some collective benefit for the publicor a section of the public and is accepted by thepublic or that section of the public as havingauthority to do so. Bodies therefore exercise publicfunctions when they intervene or participate in socialor economic affairs in the public interest. This mayhappen in a wide variety of ways. For instance, a bodyis performing a public function when it provides‘public goods’ or other collective services, such ashealth care, education and personal social services,from funds raised by taxation. A body may performpublic functions in the form of adjudicatory services(such as those of the criminal and civil courts andtribunal system). They also do so if they regulatecommercial and professional activities to ensurecompliance with proper standards. For all thesepurposes, a range of legal and administrativetechniques may be deployed, including rule making,adjudication (and other forms of dispute resolution);inspection; and licensing.Public functions need not be the exclusive domainof the State. Charities, self-regulatory organisationsand other nominally private institutions (such asuniversities, the Stock Exchange, Lloyd’s of London,churches) may in reality also perform some types ofpublic function. As Sir John Donaldson, M.R. urged, itis important for the courts to ‘recognise the realities https://hcservices.ecourts.gov.in/hcservices/ 27of executive power’ and not allow ‘their vision to beclouded by the subtlety and sometimes complexity of theway in which it can be exerted’. Non-governmentalbodies such as these are just as capable of abusingtheir powers as is Government.”29. Thus, it can be seen that a writ of mandamusor the remedy under Article 226 is pre-eminently apublic law remedy and is not generally available as aremedy against private wrongs. It is used forenforcement of various rights of the public or tocompel public/statutory authorities to discharge theirduties and to act within their bounds. It may be usedto do justice when there is wrongful exercise of poweror a refusal to perform duties. This writ is admirablyequipped to serve as a judicial control overadministrative actions. This writ could also be issuedagainst any private body or person, specially in viewof the words used in Article 226 of the Constitution.However, the scope of mandamus is limited toenforcement of public duty. The scope of mandamus isdetermined by the nature of the duty to be enforced,rather than the identity of the authority against whomit is sought. If the private body is discharging apublic function and the denial of any right is inconnection with the public duty imposed on such body,the public law remedy can be enforced. The duty cast onthe public body may be either statutory or otherwiseand the source of such power is immaterial, but,nevertheless, there must be the public law element insuch action. Sometimes, it is difficult to distinguishbetween public law and private law remedies. Accordingto Halsbury’s Laws of England, 3rd Edn., Vol. 30,p.682,“1317. A public authority is a body, notnecessarily a county council, municipalcorporation or other local authority, whichhas public or statutory duties to perform andwhich perform those duties and carries out itstransactions for the benefit of the public andnot for private profit.”There cannot be any general definition of publicauthority or public action. The facts of each casedecide the point."30.In Zee Telefilms Ltd., v. Union of India reported in AIR2005 SC 2677, the Supreme Court, while observing that Article 12of the Constitution of India, must receive a purposiveinterpretation, at Paragraphs 75 and 76, held as follows:"75. Article 12 must receive a purposiveinterpretation as by reason of Part III of theConstitution a charter of liberties against oppressionand arbitrariness of all kinds of repositories of powerhave been conferred - the object being to limit andcontrol power wherever it is found. A body exercising https://hcservices.ecourts.gov.in/hcservices/ 28significant functions of public importance would be anauthority in respect of these functions. In thoserespects it would be same as is executive governmentestablished, under the Constitution and theestablishments of organizations funded or controlled bythe Government. A traffic constable remains an authorityeven if his salary is paid from the parking chargesinasmuch as he still would have the right to control thetraffic and anybody violating the traffic rules may beprosecuted at his instance.76. It is not that every body or association whichis regulated in its private functions becomes a 'State'.What matters is the quality and character of functionsdischarged by the body and the State control flowingtherefrom."32.In L. Nageswaran v. State of T.N., reported in 2009 (1)MLJ 729, there was revision of fee structure in the middle of theacademic year by a Matriculation School, managed by Bishop ofMadras CSI Diocese. The primary objection was with regard to themaintainability of the Writ Petition. A learned Single Judge ofthis Court held that the Matriculation School, though minority incharacter, administered by Dioceses, is exercising a publicfunction and as such, it is amenable to Writ jurisdiction.33.In Sendhilkumar v. Shri Angalamman College of Engg., &Technology reported in 2009 (3) MLJ 774, a dismissed non-teachingstaff of a private unaided college run by a private trust,challenged the order of dismissal. The main objection of thecollege was that it does not get any aid from the Government andtherefore, the Writ Petition filed against them is notmaintainable. Following the decisions in Andi Mukta Satguru ShreeMuktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust andothers v. V.R.Rudani and others reported in 1989 (II) LLJ 324,this Court has held that the entire educational institution as awhole should be held to be as one unit which discharges its publicduty of imparting education to the students and therefore, therecannot be any distinction between teaching and non-teaching staff,while applying Article 226 of the Constitution of India. Holdingthat the Writ Petition as maintainable, this Court has set asidethe impugned order.34.In The Governing Council of American College v. TheDirector of Collegiate Education, reported in 2009 (4) CTC 401,the issue before the Division Bench of this Court was whether anaided minority college is amenable to Writ jurisdiction.Following the guidelines in Andi Mukta Satguru Shree MuktajeeVandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v.V.R.Rudani and others reported in 1989 (II) LLJ 324, andSecretary, Malankara Syrian Catholic College v. T.Jose reported in2007 (1) SCC 386, the Division Bench, at Paragrahs 21 and 29, heldas follows: https://hcservices.ecourts.gov.in/hcservices/ 29"21. At the outset, we wish to point out that theobjection to the maintainability of the writ petitionon the ground that the institution is a Society, doesnot hold water any more. Article 226(1) empowers thisCourt to issue directions, orders or writs to "anyperson or authority". Therefore even a Society isamenable to the writ jurisdiction, provided there is anelement of public duty. In Anadi Mukta Sadguru ShreeMuktajee Vandas Swami Suvarna Jayanti Mahotsav SmarakTrust v. V.R. Rudani [1989 (2) SCC 691], a Trustregistered under the Bombay Public Trusts Act, was heldamenable to the writ jurisdiction. It was held thereinthat when public money is paid as Government aid, theaided institutions discharge public functions and theybecome subject to the Rules and Regulations of theAffiliating University. Therefore, the Supreme Courtopined that employment in such institutions is notdevoid of any public character. Again in K.Krishnamacharyulu v. Sri Venkateswara Hindu College ofEngineering [1997 (3) SCC 571], the Supreme Court helda writ filed even by the employees of unaided privateeducational institution as maintainable on the groundthat the teachers get an element of public interest inthe performance of their duties. Hence the contentionthat a writ against a Society is not maintainable,cannot be accepted as of universal application,especially since the institution in question in theseappeals, receives grant-in-aid from the Government.29. Thus, in Malankara, the Supreme court clearedall possible doubts, genuine or artificial, by holdingin paragraphs 19 (iii) and 20 that any regulations toprevent exploitation or oppression of employees and anylaw intended to regulate the service conditions ofemployees of educational institutions, could not beconstrued as interfering with the right under Article30(1). Therefore, the contention that an aided minorityinstitution is not amenable to Article 226, especiallyin relation to the dismissal of a Principal, is justfanciful."47.The advantages of registering a company, without a word "Limited"are for promoting commerce, art, science, religion, charity or any otheruseful purpose and it intends to apply its profits, if any, or other incomein promoting its objects and to prohibit the payment of any dividend to itsmembers. 48.As per "PALMER'S COMPANY LAW, exemption from the requirement ofshowing "Limited" as the last word, in its name of its value, is given tothe companies not engaged in business (in the sense that they do not intendto pay dividends to their members). This privilege is frequently used bybodies which pursue charitable, educational or other purposes of generalutility. The advantages of incorporation for associations which are exemptfrom using "Limited" as the last word of their name are great. Such anassociation becomes a body corporate with perpetual succession and can https://hcservices.ecourts.gov.in/hcservices/ 30adopt a suitable name, such as chamber, club, college, guild, orassociation. It can have a common seal; it can hold property in its ownname without the intervention of trustees; it can contract and take ordefend legal proceedings in its own name; its affairs can be conducted muchmore efficiently, and finally, its officers and members are free frompersonal liability. It enjoys all the privileges of a company limited byguarantee and its subject to all its obligations, except the use of theword "Limited" in his name but it must indicate on its business letters andother forms that it is a limited company. Membership in such a company maybe constituted by election or by application in writing accepted by thegoverning body. Sometimes (e.g., in charitable associations) a candidatefor election must take a donation. The governing body is not infrequentlycalled the committee or the council. When, as is often the case, theassociation is formed to absorb and continue some existing association ofthe same name, the members of the latter association will all join theregistered association and the property, if any, is transferred to it, andthe incorporated association thus silently takes the place of predecessor."49.Insofar as the applicability of the other Acts to charitablecompanies, licenced under Section 25 of the Companies Act, by the CentralGovernment is concerned, in Hyderabad Race Club, Hyderabad v. CIT, API.,Hyderabad reported in (1985) 153 ITR 521 (AP)(FB), the Court held that thegrant of licence under this Section is not conclusive of the fact that acompany is registered for a charitable purpose within the meaning ofSection 2(15) of the Income-Tax Act. (See. CIT v. The Ootacamund GymkhanaClub [1978 Tax LR 74 (Mad) (FB)]. Application of the above judgments tothe facts of this case, would make it clear, the "Tag", "Ltd", is excludedonly for a limited purpose, under the provisions of Companies Act, and itcannot be contended that the provisions of other enactments are notapplicable to the Schools run by the Board, which is a body constituted forthe purpose of establishing the educational institutions and deal withtheir affairs. 50.Reading of Memorandum and Articles of Association of MaduraCollege Board, with reference to the definition, "Educational Agency", itsfunctions, control and management over the institutions, recognised underthe Tamil Nadu Recognised Private Schools (Regulation) Act and the rulesmade thereunder, viz., Sethupathi Higher Secondary School, Madurai andMadura College Higher Secondary School, Madurai and the functions of theBoard of Directors in the matter of constitution of School/Collegecommittees, control over the budget and annual income, power to make bye-laws for general management of the college and educational institution,with reference to the statutory provisions under the abovesaid Rules, wouldmake it clear that though Madura College Board, an association formed underthe Indian Companies Act, 1882, has been permitted to register with thelimited liability, without the word "Limited", to its name and theCertification of Incorporation of Madura College Board, has been issued wayback in the year 1905, Madura College Board is nothing but an educationalagency under the Tamil Nadu Recognised Private Schools (Regulation) Act andthe rules made thereunder, and under the Tamil Nadu Private CollegesRegulation Act and the Rules framed thereunder.51.Though the Secretary of Madura College Board, Madurai has filed acounter affidavit and made submissions to the effect that it is a companyregistered under the Companies Act and not amenable to the writ https://hcservices.ecourts.gov.in/hcservices/ 31jurisdiction and therefore, the educational authorities, viz., respondents1 to 3, cannot have any control over Madura College Board, as it is not aState or a Authority under the Rules, nowhere in the counter affidavit, theBoard has come forward to furnish the details, as to who is the educationalagency for the educational institutions, established and run by them, underthe abovesaid Acts and as to when the abovesaid educational institutions,viz., Madura College Higher Secondary School, Sethupathi Higher SecondarySchool have obtained permission from the competent authorities to continuethe function under the respective Statutes. If Madura College Board doesnot come under the definition of Educational Agency, under the statutoryprovisions, then they have no locus to run any educational institution, asper the provisions of the statutes, regulating the Schools and the Colleges.52.A perusal of the objects for which the Association of "MaduraCollege Board" has been established, makes it clear that the veryassociation has been formed to conduct and manage the institutionsdesignated as Madura College, Setupati High School, which were in existenceat the time of incorporation and among others, it is also the object of theAssociation that to enlarge or modify the aim and scope of the educationimparted in the said institutions and their Feeders and Branches and changetheir designations, according to such improved or modified conditions.Articles of Association, stated supra, makes it clear that Madura CollegeBoard, will have the control and management of the Madura College and thevarious educational institutions. 53.Therefore, the contention that the Madura College Board is notamenable to writ jurisdiction under Article 226 of the Constitution ofIndia and the educational authorities, respondents 1 to 3, have no right orcontrol over the fourth respondent-School, is untenable and liable to berejected. The Board, which controls and manages five educationalinstitutions cannot claim any exemption from the provisions of the TamilNadu Recognised Private Schools (Regulation) Act and the Rules framedthereunder or the Tamil Nadu Private Colleges Regulation Act and the Rules.54.If the contentions of the fourth respondent are to be accepted,then there cannot be any control by the educational authorities, even ifthere is any contravention of the statutory provisions, rules or anydirections issued under the Act. Exemption granted under the Companies Actfor registration purpose, without the word "Limited" is only under theprovisions of the said Act and the same cannot be claimed as an exemptionfrom applicability of the statutory provisions under the Tamil NaduRecognised Private Schools (Regulation) Act and the rules made thereunder.The whole argument is fallacious and it is nothing but an attempt by theBoard, to extricate from the applicability of the statutory provisions.55.Section 25 of the Companies Act, granting exemption under certainprovisions of the Companies Act and the statutory provisions under theTamil nadu Recognised Private Schools (Regulation) Act and the rules madethereunder, operate in different sphere, both in object and context andtherefore, merely because, Madura College Board has been registered underSection 25 of the Companies Act, it cannot be contended that there is noauthority to control the Board, which runs the educational institutions.When the educational institutions run by the Board are funded by the StateGovernment and that when monthly grants are disbursed by the District https://hcservices.ecourts.gov.in/hcservices/ 32Educational Officer, Madurai, third respondent therein, it is not open tothe Board to contend that they are not amenable to writ jurisdiction underArticle 226 of the Constitution of India. In the light of the abovediscussion and the decisions stated supra, this Court holds that the MaduraCollege Board is nothing but an educational agency of the institutions,stated supra and hence, amenable to writ jurisdiction under Article 226 ofthe Constitution of India.Issue No.2:56.Perusal of the details in the acquintance for teaching and non-teaching staff salary for June' 2011 in Setupati Higher Secondary School,Madurai, shows that there are 18 persons working in School and among them,are nine teachers, four administrative staff, viz., Thiru.T.Rengarajan,Senior Clerk (petitioner herein), Thiru.R.Soundararajan, Junior Assistant,Tmt.V.Andal, Clerk and Tmt.S.Vijayalakshmi, Clerk and five employees in thecategories as Watchman and Sweepers.57.In this writ petitions, the Secretary of the Madura CollegeBoard, fourth respondent, has not submitted any monthly statements,containing the details of the teachers and other persons, their pay andallowance, already submitted to the District Educational Officer, Madurai,third respondent herein, regarding grant received by the educationalagency, viz., the Board. From the perusal of the proceedings of theDistrict Educational Officer, Madurai, third respondent, it is seen thatboth Setupati Higher Secondary School, Madurai and Madura College HigherSecondary School, Madurai, have received considerable grant, and thedetails of which, are as follows:MonthsGrant received by SetupatiHigher Secondary School, MaduraiGrant received by MaduraCollege Higher SecondarySchool, Madurai,Jan' 2011Rs.8,77,051/-Rs.10,76,357/-Feb' 2011Rs.4,62,805/-Rs.6,39,204/-Mar' 2011Rs.9,06,568/-Rs.10,71,900/-Apr' 2011Rs.9,24,824/-Rs.11,13,485/-May' 2011-- Rs.11,13,809/-58.The Acquintance register of the Madura College Board in SetupatiHigher Secondary School, Madurai, for the month of June' 2011, shows thatthe petitioner is an employee of Madura College Board, working in theabovesaid School. G.O.Ms.No.22 and the decision in W.A.No.151 of 2011,dated 21.02.2011, cannot be applied to private educational institutions.The educational agency also cannot be compelled to regularise the servicesof an employee, unless the Government Order, stated supra, is madeapplicable to the private educational institution. Further, no proceedingshave been placed before this Court in this regard.59.Even perusal of the judgment made in W.A.No.151 of 2011, dated21.02.2011, would show that a direction was issued only to the officials,petitioners 1 to 3 therein, to consider the case of the respondent therein,who was appointed as Typist under the scheme of Jawahar Velaivaippu Thittam https://hcservices.ecourts.gov.in/hcservices/ 33and worked for 17 years in Panchayat Union. In view of the above, thedirection sought for by the petitioner to regularise his services in theprivate educational institution run by the fourth respondent-Board, cannotbe granted.60.The concept of regularisation cannot be made applicable to TamilNadu Recognised Private Schools (Regulation) Act, unless the Governmentissues appropriate orders. However, as per Annexure III (vide Rule 19),before releasing the teaching grant or special grant, the DistrictEducational Officer, Madurai, third respondent should satisfy himself as towhether appointments made by the School Committee are in accordance withthe Rules and Government Orders.61.In the case on hand, the fourth respondent-Board claims that thepetitioner was appointed only as a Board staff and paid from their funds,whereas, the details of the grant for the months from January' 2011 to May'2011, submitted by the educational authorities shows that about 38 areworking in Setupati Higher Secondary School, Madurai. About 18 persons aresaid to be paid by the fourth respondent-Board, as board staff. In view ofthe above submission, the District Educational Officer, Madurai, thirdrespondent is directed to ascertain the same, by causing necessaryinspection and calling for details from the fourth respondent-Board,accordingly. 62.In the result, the writ petition is disposed of. No costs. SD ASST REGISTRAR ( CRL SIDE )/TRUE COPY/SUB ASST REGISTRAR skmTo1. The Director of School Education, O/o. Director of School Education, Chennai 600 006.2. The Chief Educational Officer, O/o. Chief Educational Officer, Madurai 625 002.3. The District Educational Officer, O/o. District Educational Office, Madurai 625 002.1CC TO MR. P.C. SARAVANAN, ADVOCATE, SR: 28748:1CC TO MR. T. CHANDRA SEKARAN, ADVOCATE, SR: 28860:DM::2011:SEPTEMBER:20::W.P.(MD)No.4941 of 201122.08.201133P;6C::