A.P. Johns Paulraj Vs. Central Board of Secondary Education, Represented by Its Chairman - Court Judgment

Excerpt:
- securitisation & reconstruction of financial assets & enforcement of security interest act, 2002 [c.a. no. 54/2002]section 17; power of tribunal to impose condition relating to deposit for grant of stay of auction held, there is no specific provision made under section 17 of securitisation act or under any other provisions of the said act empowering the tribunal to pass any interim order. but under sub-section (12) of section 19 of the recovery of debts due to banks and financial institutions act, 1993, the tribunal has been empowered to pass various interim orders. if sub-section (7) of section 17 of securitisation act is read along with sub-section (12) of section 19 of recovery of debts due to bank is and financial institutions act, it would be clear that the tribunal also has jurisdiction to pass interim orders under section 17 of the securitisation act in appropriate cases. the tribunal is empowered to grant interim stay subject to such conditions as may be deemed proper including condition of deposit. even under section 69 of the transfer of property act, the only remedy of the borrower whose mortgage has invoked section 69 of the transfer of property act, is to file a civil suit and in such suit the court has power to grant injunction and to impose condition for the grant thereof--section 17; [a.p. shah c.j., f.m. ibrahim kalifulla & v. ramasubramanian, jj] proceedings under section 17 power of the tribunal to pass any interim order held, once the possession of the secured asset is taken, there would be no occasion for the tribunal to order redelivery of possession till final determination of the issue. in other words, it is only when the tribunal comes to the conclusion that any of the measures, referred to in section 13 (4) taken by the secured creditor are not in accordance with the provisions of the act and the rules made thereunder, then only the tribunal can restore possession of such secured assets to the borrower. by virtue of sub-section (7) of section 17 of the securitisation act read with section 19 (12) of the recovery of debts due to banks and financial institutions act the tribunal undoubtedly possess ancillary power to pass interim orders subject to the conditions as it may deems fit and proper to impose, but it does not in any way override the special provisions contained in section 17(3) of the securitisation act. the statutory scheme of the securitisation act is such that the borrower could take recourse to application under section 17 only if one or other measure is taken by the secured creditor, and the tribunal can restore the status quo ante only if it comes to the conclusion that any of the measure taken by the secured creditor is not in accordance with the provisions of the act. the scheme cannot be bypassed by issuing a mandatory order for redelivery of the possession before conclusion of the proceedings under section 17--sections 17, 13 (4); [a.p.shah, c.j., f.m. ibrahim kalifulia &v. ramasubramanian, jj] scope of enquiry under section 17 held, the main purpose of the securitisation act, and in particular section 13 thereof, is to enable and empower the secured creditors to take possession of their securities and to deal with them without the intervention of the court. therefore, in an application under section 17, the tribunal is concerned only with the validity of the acts of the secured creditor in taking possession of the securities and dealing with the same under section 13. all such grounds, which would render the action of the bank/financial institution illegal, can be raised before the tribunal in the proceedings under section 17. it is for the tribunal to decide in each case whether the action of the bank was in accordance with the provisions of the act and legally sustainable. however, while considering the question of validity of the action of the bank, it is not necessary for the tribunal to adjudicate the exact amount due to the secured creditors. in other words, the purpose of an application under section 17 is not the determination of the quantum of claim per se as the tribunal is concerned with the issue of the validity of the measures taken by the banks/financial institutions under section 13(4)--sections 17(4), 13(4) ; [a.p. shan c.j.,f.m.ibrahim kalifulla & v. ramasubramanian, jj] appeal right of bank held, the right of the bank is not automatically suspended upon filing of an appeal by borrower under section 17 of the securitisation act and the bank as secured creditor can proceed to auction secured asset where no stay is granted by the tribunal. there is nothing in section 17 of the securitisation act which would indicate that the legislature intended that there would be automatic stay of recovery proceedings by bank under section 13(4) on filing an appeal by borrower under section 17. use of the expressions if and then under section 17 would not mean that the bank can take one or more measures laid down under section 13(4) only if the tribunal declares that the action taken already is in accordance with the provisions of the securitisation act and the rules made thereunder. use of the word if does not connote a condition precedent. it is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they harmonized with the object of the statute and which effectuate the object of the legislature. the provisions of section 17 must, therefore, receive such construction at the hands of the court as would advance the object and at any event not thwart it. in other words, the principle of purposive interpretation should be applied while construing the said provisions. the securitisation act is enacted to provide a speedy and summary remedy for recovery of thousands of crores which were due to the banks and financial institutions. ordersrinivasan, j.1. the petitioner in this writ petition has prayed for issue of a writ of certiorari to call for the records pertaining to the termination notice of the third respondent dated 13.6.1988 and quash the same. according to the petitioner, he was appointed as principal of the usha higher secondary school, west thambaram, madras temporarily. it is also stated that there was an agreement between him and the school for a period of one year from 1-6-1987 ending with the academic year. that agreement is said to be dated 1-8-1987. it is his further case that there were some misunderstandings between him and the chairman of the school and that he was threatened with danger to his personal safety also. according to him, there was a police complaint and ultimately on 13-6-1988 he was prevented from entering the school and the impugned order was communicated to him. by the impugned order his services were terminated on certain grounds of discipline. i have not gone into the details of either the averments in the affidavit filed in support of the writ petition or the counter-affidavit. nor do i propose to do so in view of the fact that the preliminary objection raised by learned counsel for the respondents to the maintainability of the writ petition is being upheld by me.2. it is stated by the respondents that usha higher secondary school is a private school managed by a private body and it does not receive any aid from the state. according to the counter-affidavit, the school does not come under the purview of article 12 of the constitution of india. hence it is contended that the writ petition is not sustainable as against the private body.3. in answer to the preliminary objection learned counsel for the petitioner referred to number of judgments of the supreme court and that of this court and contended that under article 220 of the constitution of india a writ can issue even against private bodies and as a matter of fact against individuals in view of the express terms of that article. it is contended that the respondent in a write petition should be a 'state' and that the mere fact that the institution does not receive any aid from the state is not sufficient to hold that it is not a state within the meaning of article 12. according to learned counsel for the petitioner, the aid does not mean aid only in terms of cash but it will also include aid in kind. it is argued that any other help or assistance in any form will also be aid and consequently it should be held that the school in question is receiving aid from the state government or the state authorities and that it will fall within the purview of article 12 of the constitution of india.'4. before considering the validity of the contention of learned counsel i would briefly refer to the case law on the subject. i prefer to begin with the ruling of the supreme court in vaish degree college v. lakshminarain a.i.r. 1976 s.c. 888 as all the previous cases were discussed and considered therein. the court held that a contract of personal service cannot ordinarily be enforced specifically. three exceptions were set out as well recognized : (1) where a public servant is sought to be removed from service in contravention of the provisions of article 311 of the constitution of india ; (2) where a worker is sought to be reinstated under the industrial law ; (3) where a statutory body acts in breach or violation of the mandatory-provisions of the statute. a statutory body was defined in that case as one which was created by or under a statute and owed its existence to a statute. it was held that an institution governed by certain statutory provisions for its proper maintenance and administration would not be a statutory body. the test prescribed was whether the institution would exist in the absence of a statute.5. in ramana dayaram shetty v. i.a. authority : (1979)iillj217sc the supreme court prescribed the following tests for deciding whether a corporation is an instrumentality or agency of 'state':(1) one thing is clear that if the entire share capital of the corporation is held by government it would go a long way towards indicating that the corporation is in instrumentality or agency of government.(2) where the financial assistance of the state is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.(3) it may also be a relevant factor...whether the corporation enjoys monopoly status which is the state conferred or state protected.(4) existence of 'deep and pervasive state control may afford an indication that the corporation is a slate agency or instrumentality.(5) if the functions of the corporation of public importance and closely related to governmental functions. it would be a relevant factor in classifying the corporation as an instrumentality or agency of government.vide in ajay hasia v. khalid mujib sehrabardi : (1981)illj103sc .6. in j. tiwari v. jawala devi vidya mandir : air 1981 sc122 it was held that the rights and obligations of an employee of a private institution are governed by the terms of the contract between the parties. it was also observed that the regulations of the university or the provisions of the educational code framed by the state government may be applicable to the institution and if the provisions thereof are violated; the university may be entitled to disaffiliate the institution. but that would not, however, mean that the institution was a public or a statutory body.7. in ajay hasia v. kalid mujib : (1981)illj103sc , the supreme court cautioned that the above tests are not conclusive or clinching but they are merely indicative indicia which have to be used with care and caution and that the necessity of a wide meaning to be placed on the term 'other authorities' should not be stretched so far as to bring in every autonomous body which has some nexus with the government within the sweep of the expression. however the court held that if the financial assistance of the slate is so much as to meet almost the entire. expenditure of the corporation and the existence of deep and pervasive state control will afford indications of the corporation being impregnated with governmental character. in manmohan singh v. commissioner w.t. chandigarh : (1985)illj514sc , one of the questions was whether writs could be maintained by a dismissed headmaster and a dismissed drawing teacher against a private school receiving aid from the government, the court held that a school receiving 95% of expenses by way of grant from the public exchequer and whose employees have received statutory protection under the punjab aided schools (security of service) act and which is subject to the regulations made by the education department or the union territory of chandigarh and when the appointment of headmaster is to be approved by the director of public instruction would certainly be amenable to the writ jurisdiction of the high court.8. in dipak kumar biswas v. director of public instruction : (1987)illj516sc , the appellant before the supreme court instituted a suit for declaration that he continued to be in service in lady keane girls college, shillong and for an injunction. his services were terminated by the college on the ground that the director of public instruction had not approved of his appointment. the trial court dismissed the suit. the first appellate court allowed the appeal of the plaintiff and granted a decree as prayed, for. the high court while holding that there was no necessity for the approval by the director of public instruction as the assam college management rules were not adopted by the state of meghalays held that reinstatement of the plaintiff in service was not possible as it could be granted only to persons belonging to the categorties of (1) government servants (2) industrial workmen and (3) employees of statutory bodies. consequently the high court granted a decree for damages only. the aggrieved plaintiff took the matter on appeal to the supreme court. foillowing the view token in vaish degree college v. lakshmi narain a.i.r. 1976 s.c. 888 the court held that a contract of service could not be enforced specifically. then the question to be considered was whether the college in that case which was admittedly receiving aid from the government and was governed by the regulations of the university was a statutorty body. the court answered in the negative and rejected the claim for reinstatement. the court observed as follows:the law ennunciated in these decisions stand fully attracted to this case also. even though the lady keane girls college may be governed by the statutes of the university and the education code frame by the government of meghalaya and even though the college may be receiving financial aid from the government it would not be a statutory body because it has not been created by any statute and its existence is not dependent upon any statutory provision' ultimately the supreme court granted additional damages to the appellant. 9. in tekraj v. union of india : (1988)illj341sc , the question was whether the institute of constitutional and parliamentary studies registered under the societies registration act, 1860 was a 'state' within the meaning of article 12 of the constitution of india. after tracing the case law on the subject the court observed as follows:democracy pre-supposes certain conditions or its successful working. it is necessary that there must be a deep sense of understanding, mutual confidence and tolerance and regard and acceptance of the views of others. in the early years of freedom, the spirit of sacrifice and a sense of obligation to the leadership that had helped the dream of freedom to materialise had been accepted. the emergence of a new generation within less than two decades of independency gave rise to a feeling that the people's representatives in the legislatures required the acquisition of the appropriate democratic ideas and spirit. icps was born as a voluntary organisation to fulfil this requirement. at the inception it was certainly not a governmental organisation and it has not been the case of the parties in their pleadings nor have we been told at the bar during the long arguments that had been advanced that the objects of icps are those which are a state obligation to fulfil. the society was thus born out of a feeling that there should be a voluntary association mostly consisting of members of the two houses of parliament with some external support to fulfil the objects which were adopted by the society. the objects of the society were not governmental business but were certainly the aspects which were expected to equip members of parliament and the state legislatures with the requisite knowledge and experience for better functioning. many of the objects adopted by the society were not confined to the two houses of parliament and were intended to have an impact on society at large.the memorandum of the society perrmitted acceptance of gifts, donations and subscriptions. there is material to show that the ford foundation, a us based trust, had extended support for sometime. undoubtedly, the annual contribution from the government has been substantial and it would not be wrong to say that they perhaps constitute the main source of funding, yet some money has been coming from other sources. in later years, foreign funding came to be regulated and, therefore it became necessary to provide that without government clearance, like any other institution, icps was not to receive foreign donation. no material has been placed before us for the stand that the society was not entitled to receive contributions from any indigenous source without government sanction. since government moneys has been coming, the usual conditions attached to government grants have been applied and enforced. if the society's affairs were really intended to be carried on as part of the lok sabha or parliament as such, the manner of functioning would have been different. the accounts of the society are separately maintained and subject to audit in the same way as the affairs of societies receiving government grants are to be audited. government usually impose certain conditions and restrictions when grants are made. no exception has been made in respect of the society and the mere fact that such restrictions are made is not a determinative aspect.considerable attempt has been made by mr. rao, learned counsel for the appellant, to show that in the functioning of the society there is deep and pervasive control of government. we have examined meticulously the correspondence and the instances where control was attempted to be exercised or has, as a fact, been exercised but these again are features which appear to have been explained away.in spite of the above facts and circumstances the court held that the institute was not a 'state' or state instrumentality or other authority.10. recently a full bench of this court had occasion to hold in r. thamilarasan v. the director of handlooms and textiles, madras 1989 1 l.l.j. 588that a co-operative society is not a state within the meaning of article 12 of the constitution and a writ petition is not maintainable as against a co-operative society. the full bench referred to several judgments of the supreme court and also other courts. the full bench observed at the end of the judgment as follows.viewed from any angle and in the. light of the pronouncements of the supreme court and of the other high courts, particularly the two full bench judgment of different high courts referred to above, it appears to us that a co-operative society is not an authority nor an instrumentality or agency of the government to attract article 12 of the constitution and therefore not amenable to writ jurisdiction under article 226 of the constitution. as observed by the division bench of the patna high court in harender narain v. state of bihar j 985 lab. i.c. 1807 and also the full bench decision of orissa high court in banabihari tripathy v. registrar of cooperative societies a.i.r. 1989 orissa 31 (supra), we are also of the view that the tests laid by the supreme court in various cases on which heavy reliance was placed by the councel, who invited the court to answer the issue in the affirmative are not satisfied by the co-operative societies in question to come under article 12 of the constitution as an authority or agency or instrumentality of government it is not necessary to set out the various tests laid down by the supreme court once over to find out whether the co-operative society will satisfy and or some of the tests so laid down by the supreme court in view of the fact that we are in agreement with the views expressed by the division bench judgment of the patna high court and, the two full bench judgments of kerala and orissa high courts. 11. thus the common thread which runs through the fabric of case law is, article 226 can be invoked only against state or statutory bodies or authorities who are state instrumentalities. the general principle of saw that a certiorari can issue only against judicial or quasi-judicial body would operate in conjunction with it. but, the language of article 226 is very wide. the expression is 'any person or authority including in appropriate cases, any government'. undoubtedly, a power is vested in the court to issue a writ against a private body or even an individual. in rohtas industries ltd. v. rohtas industries staff union : (1976)illj274sc krishna iyer, j., stated the law thus;the expensive and extraordinary power of the high courts under article 226 as wide as the amplitude of the language used indicates and so can affect any person-even a private individual-and be available for any (other) purpose-even one for which another remedy may exist. the amendment to article 226 in 1963 inserting article 226(ia) reiterates the targets of the writ power as inclusive of any person by the expressive reference to the residence of such person'. but it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china shop. this court has spelt out wise and clear restrains on the use of this extra-ordinary remedy and high courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. the mentor of law is justice and a potent drug should be judiciously adminsistered. speaking in critical retrospect and portentous prospect the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights. 12. the note of caution contained in the above passage can never be ignored. it is only in exceptional cases, a writ should issue against a private body. following the above dictum i granted a writ against a private school in c. marianandam v. the government of tamil nadu 1988 t.l.n.j. 350 on the ground that the monstrosity of the situation in that case warranted it. of course, in that case, i had also invoked the ruling of mohan, j., in mrs. s. sivanarul v. the state of tamil nadu (1985) 1 m.l.j. 456 that a recognised school receiving aid and grant from the government was amenable to writ jurisdiction.13. the question of issue of a mandamus to a private individual or private body was considered by the supreme court insri anadi mukta sadguru shree muktajee vandasjiswami suvarna jayanti mahotsav samarak trust v. v.r. rudani : (1989)iillj324sc . it was held that a mandamus can issue in every case and there are only two exceptions viz., (1) the rights are purely of a private character and (2) the respondent is a purely private body with no public duty. the following passage in the judgment may be quoted with advantage;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 appellate trust was managing the affiliated college to which public money is paid as government aid. public money paid as government aid plays a major role in the control, maintenance and working of educational institutions. the aided institutions like government institutions discharge public function by way of imparting education to students. they are subject to the rules and regulations of the affiliating university. 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 administrative law by m.p. jain (1983) p.266). so are the service conditions of the academic staff. when the university takes a decision regarding their pay scales, it will be binding on the management. the service conditions of the academic staff are therefore, not purely of a private character. it has super-added protection by university decisions creating a legal right-duty relationship between the staff and the management. when there is existence of this relationship mandamus cannot be refused to the aggrieved party.(underling is mine).14. however, it must be noted that in that case, it was a public trust which was running a science college at ahmedabad. the college had permanent affiliation from the gujarat university under the gujarat university act. the teachers employed in the college were paid in the pay scales recommended by the university grant commission. referring to the decision in vaish degree college case a.i.r. 1976 s.c. 888 the court distinguished it by saying that in these earlier cases the college was managed by co- operative society which was not a statutory body. thus the court maintained the distinction between statutory bodies and non-statutory bodies and held that except in the two categories of cases set out above, a writ of mandamus will issue in all other cases. the underlined portion in the passage extracted above shows that the factum of governmental aid and control was considered as an important factor.15. learned counsel for the petitioner placed strong reliance on harijander singh v. kakatiya medical college : air 1975 ap35 . that was a case of a medical college affiliated to osmania university though run privately. the management committee had also representatives of the state government and the university. the management was receiving grants from the state of andhra pradesh and also from the central government some times. laying emphasis on that fact, the full bench observed:insofar as certiorari, prohibition and declaration are concerned, these writs can be issued against a nonstatutoty body discharging public duties. more so when these public bodies receive grants from the government as voted in the legialature and are affiliated to the university which is a statutory body and controlled by its. public bodies such as affiliated colleges placed as they are cannot be called as private bodies discharging purely private duties. the subject matter of challenge in that case was an order cancelling the admission of a student to the 1st year m.b.b.s. course passed in breach of rules of natural justice. the full bench took the opportunity to consider the relationship of the teachers and the management of such an institution and express its opinion. the full bench has not said anything which will help the petitioner in this case.16. the ruling of the full bench is only to the effect, if the authority to decide an issue by a body or tribunal is derived solely and exclusively from an agreement of the parties, the jurisdiction under article 226 can be invoked. applying that test to the facts of this case, there is no difficulty in holding against the petitioner. the contract of service between the petitioner and the third respondent is not a statutory one. no form has been prescribed by the central board of secondary education to which the school is affiliated or by any other authority. no statutory body has prescribed the terms to be incorporated in a contract of service between a teacher and the school. under the tamil nadu private school regulation rules forms are prescribed for agreements between the school and the staff. there are rules governing the terms. but, in the case of a school affiliated to the c.b.s.e. there is no such rule or regulation. it is seen from the handbook for affiliation of institutions issued by the central board of secondary education that the board does not prescribe the terms of service conditions between the teachers and the school authorities. the board has only prescribed the minimum qualifications for the teachers to be appointed by the school. of course, there is a provision for withdrawal of affiliation in the event of absence of adequate terms and conditions of the services ensuring security of service of teachers. that will not amount to control over the affairs of the school.17. learned counsel for the petitioner referred to another judgment of the andhra pradesh high court in t. gattaiah v. commissioner of labour 58 f.l.j. 327 it was observed by mr. justice choudary that under article 226 a writ would lie not merely against a government department but also against any person. the learned judge observed as follows:the very wide and special language of article 226 of the constitution occurring as it does in a primordial document like the constitution must, in my opinion, be given its full meaning. in doing so, we must take note of the fact that the constitution itself declares that the general clauses act would apply to its interpretation. according to the general glauses act the word 'person' refers not only to a natural person but even to a legal person. if so done, there is no doubt, in my opinion, that a writ under article 226 of the 'constitution would be available not only against an authority or government, but also against a private person. the restrictive meaning suggested to be given to the word 'person' occurring in article 226 would render that word a surplus age because according to that interpretation the word 'person' can only mean another governmental authority. the rule of interpretation that the meaning of a word should be ascertained from the association it keeps cannot, therefore, be applied to the word 'person' occurring in article 226 of the constitution. the above considerations, in my opinion, would clearly liberate the writ jurisdiction under article 226 of the constitution from the limiting constraints of the dictum of atkin, l.j. in the above mentioned case. i, therefore, hold that in appropriate cases a writ under article 226 of the constitution could issue even against private person. the learned judge took the view that a private person could convert himself into an authority by affecting the rights of citizens by his bounties and facilities and in that event, he would be amended to writ jurisdiction. with great respect to the learned judge i do not agree. if a private person can grant bounties and facilities either of his own accord or pursuant to. an agreement between him and the respondent, it cannot be said that he is converting into an authority thereby. as the full bench of the same high court pointed out in the ruling referred to earlier, if the source of the right of the aggrieved person is a private agreement, then a writ cannot be issued. in fact, the supreme court has held in bareilly development authority case : [1989]1scr743 that non-statutory contracts cannot be enforced under article 226 of the constitution.18. learned counsel for the petitioner drew my attention to the judgment of mr. justice subha rao in c.d. sekkilar v. krishnamoorthy : air1952 mad151 . it was held in that case that the principal of an institution maintained from the funds of a public trust contributed from the public funds and affiliated to the university and governed by the rules of the university and a scheme framed by the high court, is a person holding a quasi public office and a writ can be issued as against him. in that case the student applied for the writ as against him. in that case the student applied for the writ as against the principal with reference to an action taken by him in a disciplinary proceeding. that judgment does not help the petitioner in the present case as the facts are entirely different.19. the only other contention raised by learned counsel for the petitioner is that aid may mean not only aid in cash bat also aid in kind. according to him if an institution received aid in any manner from the state, it will fall within the scope of article 12 and consequently article 226 of the constitution. i am unable to appreciate how this argument, even if accepted, would help the petitioner in the present case. on the facts it has not been proved as to what exactly is the aid received by the third respondent from the state. without proving the relevant facts it is not possible for the petitioner to raise a contention in the abstract that aid would include any kind of aid. even assuming that the third respondent is receiving aid in kind from the state, it should be of such a special nature as to make the institution a state instrumentality or a state agency. if the third respondent is receiving only such aid as may be received by any other citizen of this counted or to which any citizen of the country is entitled to, that will not be sufficient to make the third respondent a statutory body or a state instrumentality. hence the contention has to be rejected.20. if as contended by learned counsel for the petitioner there is no necessity to consider whether the respondent against whom a writ is sought is a statutory body or a state within the meaning of article 12. there would have been no necessity for the large amount of literature by the supreme court and this court under article 226 referred to earlier. there would have been no necessity at all to consider the question whether the respondent is a state or a statutory body. therefore, as i have pointed out earlier, a writ can be issued against a private body or a private individual only in very exceptional circumstances and not in ordinary cases. just because an institution has terminated the contract of service the person affected cannot come to this court under article 226 and pray for issue of a writ.21. learned counsel for the third respondent drew my attention to a judgment of the high court of orissa in ambika prasad mohanty v. orissa engineering college : air1989 ori173 that private colleges which are not receiving grant-in aid from the state aid did not come within the definition of the state and a writ petition against the same is not maintainable.22. hence i upheld the preliminary objection raised by learned counsel for the third respondent and dismiss this writ petition. in the circumstances of the case, there will be no order as to costs.

Judgment:
ORDER

Srinivasan, J.

1. The Petitioner in this writ petition has prayed for issue of a writ of certiorari to call for the records pertaining to the termination notice of the third respondent dated 13.6.1988 and quash the same. According to the petitioner, he was appointed as Principal of the Usha Higher Secondary School, West Thambaram, Madras temporarily. It is also stated that there was an agreement between him and the school for a period of one year from 1-6-1987 ending with the academic year. That agreement is said to be dated 1-8-1987. It is his further case that there were some misunderstandings between him and the Chairman of the school and that he was threatened with danger to his personal safety also. According to him, there was a police complaint and ultimately on 13-6-1988 he was prevented from entering the school and the impugned order was communicated to him. By the impugned order his services were terminated on certain grounds of discipline. I have not gone into the details of either the averments in the affidavit filed in support of the writ petition or the counter-affidavit. Nor do I propose to do so in view of the fact that the preliminary objection raised by learned Counsel for the respondents to the maintainability of the writ petition is being upheld by me.

2. It is stated by the respondents that Usha Higher Secondary School is a private school managed by a private body and it does not receive any aid from the State. According to the counter-affidavit, the school does not come under the purview of Article 12 of the Constitution of India. Hence it is contended that the writ petition is not sustainable as against the private body.

3. In answer to the preliminary objection learned Counsel for the petitioner referred to number of judgments of the Supreme Court and that of this court and contended that under Article 220 of the Constitution of India a writ can issue even against private bodies and as a matter of fact against individuals in view of the express terms of that Article. It is contended that the respondent in a write petition should be a 'state' and that the mere fact that the institution does not receive any aid from the State is not sufficient to hold that it is not a State within the meaning of Article 12. According to learned Counsel for the petitioner, the aid does not mean aid only in terms of cash but it will also include aid in kind. It is argued that any other help or assistance in any form will also be aid and consequently it should be held that the school in question is receiving aid from the State Government or the State Authorities and that it will fall within the purview of Article 12 of the Constitution of India.'

4. Before considering the validity of the contention of learned Counsel I would briefly refer to the case law on the subject. I prefer to begin with the ruling of the Supreme Court in Vaish Degree College v. Lakshminarain A.I.R. 1976 S.C. 888 as all the previous cases were discussed and considered therein. The Court held that a contract of personal service cannot ordinarily be enforced specifically. Three exceptions were set out as well recognized : (1) Where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India ; (2) Where a worker is sought to be reinstated under the Industrial Law ; (3) Where a statutory body acts in breach or violation of the mandatory-provisions of the statute. A statutory body was defined in that case as one which was created by or under a statute and owed its existence to a statute. It was held that an institution governed by certain statutory provisions for its proper maintenance and administration would not be a statutory body. The test prescribed was whether the institution would exist in the absence of a statute.

5. In Ramana Dayaram Shetty v. I.A. Authority : (1979)IILLJ217SC the Supreme Court prescribed the following tests for deciding whether a Corporation is an instrumentality or agency of 'STATE':

(1) One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is in instrumentality or agency of Government.

(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.

(3) It may also be a relevant factor...whether the corporation enjoys monopoly status which is the State conferred or State protected.

(4) Existence of 'deep and pervasive State control may afford an indication that the Corporation is a Slate agency or instrumentality.

(5) If the functions of the corporation of public importance and closely related to governmental functions. It would be a relevant factor in classifying the Corporation as an instrumentality or agency of Government.

Vide in Ajay Hasia v. Khalid Mujib Sehrabardi : (1981)ILLJ103SC .

6. In J. Tiwari v. Jawala Devi Vidya Mandir : AIR 1981 SC122 it was held that the rights and obligations of an employee of a private institution are governed by the terms of the contract between the parties. It was also observed that the regulations of the University or the provisions of the Educational Code framed by the State Government may be applicable to the institution and if the provisions thereof are violated; the University may be entitled to disaffiliate the institution. But that would not, however, mean that the institution was a public or a statutory body.

7. In Ajay Hasia v. Kalid Mujib : (1981)ILLJ103SC , the Supreme Court cautioned that the above tests are not conclusive or clinching but they are merely indicative indicia which have to be used with care and caution and that the necessity of a wide meaning to be placed on the term 'other authorities' should not be stretched so far as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression. However the Court held that if the financial assistance of the Slate is so much as to meet almost the entire. expenditure of the corporation and the existence of deep and pervasive State control will afford indications of the corporation being impregnated with Governmental Character. In Manmohan Singh v. Commissioner W.T. Chandigarh : (1985)ILLJ514SC , one of the questions was whether writs could be maintained by a dismissed Headmaster and a dismissed drawing teacher against a private school receiving aid from the Government, The Court held that a school receiving 95% of expenses by way of grant from the public exchequer and whose employees have received statutory protection under the Punjab Aided Schools (Security of Service) Act and which is subject to the regulations made by the Education Department or the Union Territory of Chandigarh and when the appointment of Headmaster is to be approved by the Director of Public Instruction would certainly be amenable to the writ jurisdiction of the High Court.

8. In Dipak Kumar Biswas v. Director of Public Instruction : (1987)ILLJ516SC , the appellant before the Supreme Court instituted a suit for declaration that he continued to be in service in Lady Keane Girls College, Shillong and for an injunction. His services were terminated by the College on the ground that the Director of Public Instruction had not approved of his appointment. The trial court dismissed the suit. The first appellate court allowed the appeal of the plaintiff and granted a decree as prayed, for. The High Court while holding that there was no necessity for the approval by the Director of Public Instruction as the Assam College Management Rules were not adopted by the State of Meghalays held that reinstatement of the plaintiff in service was not possible as it could be granted only to persons belonging to the categorties of (1) Government servants (2) Industrial workmen and (3) Employees of statutory bodies. Consequently the High Court granted a decree for damages only. The aggrieved plaintiff took the matter on appeal to the Supreme Court. Foillowing the view token in Vaish Degree College v. Lakshmi Narain A.I.R. 1976 S.C. 888 the Court held that a contract of service could not be enforced specifically. Then the question to be considered was whether the college in that case which was admittedly receiving aid from the Government and was governed by the regulations of the University was a statutorty body. The Court answered in the negative and rejected the claim for reinstatement. The Court observed as follows:

The law ennunciated in these decisions stand fully attracted to this case also. Even though the Lady Keane Girls College may be governed by the statutes of the University and the Education Code frame by the Government of Meghalaya and even though the college may be receiving financial aid from the Government it would not be a statutory body because it has not been created by any statute and its existence is not dependent upon any statutory provision' Ultimately the Supreme Court granted additional damages to the appellant.

9. in Tekraj v. Union of India : (1988)ILLJ341SC , the question was whether the Institute of Constitutional and Parliamentary studies registered under the Societies Registration Act, 1860 was a 'State' within the meaning of Article 12 of the Constitution of India. After tracing the case law on the subject the Court observed as follows:

Democracy pre-supposes certain conditions or its successful working. It is necessary that there must be a deep sense of understanding, mutual confidence and tolerance and regard and acceptance of the views of others. In the early years of freedom, the spirit of sacrifice and a sense of obligation to the leadership that had helped the dream of freedom to materialise had been accepted. The emergence of a new generation within less than two decades of independency gave rise to a feeling that the people's representatives in the legislatures required the acquisition of the appropriate democratic ideas and spirit. ICPS was born as a voluntary organisation to fulfil this requirement. At the inception it was certainly not a governmental organisation and it has not been the case of the parties in their pleadings nor have we been told at the bar during the long arguments that had been advanced that the objects of ICPS are those which are a State obligation to fulfil. The Society was thus born out of a feeling that there should be a voluntary association mostly consisting of members of the two Houses of Parliament with some external support to fulfil the objects which were adopted by the Society. The objects of the Society were not governmental business but were certainly the aspects which were expected to equip Members of Parliament and the State Legislatures with the requisite knowledge and experience for better functioning. Many of the objects adopted by the Society were not confined to the two Houses of Parliament and were intended to have an impact on society at large.

The Memorandum of the Society perrmitted acceptance of gifts, donations and subscriptions. There is material to show that the Ford Foundation, a US based Trust, had extended support for sometime. Undoubtedly, the annual contribution from the Government has been substantial and it would not be wrong to say that they perhaps constitute the main source of funding, yet some money has been coming from other sources. In later years, foreign funding came to be regulated and, therefore it became necessary to provide that without Government clearance, like any other institution, ICPS was not to receive foreign donation. No material has been placed before us for the stand that the Society was not entitled to receive contributions from any indigenous source without Government sanction. Since Government moneys has been coming, the usual conditions attached to Government grants have been applied and enforced. If the Society's affairs were really intended to be carried on as part of the Lok Sabha or Parliament as such, the manner of functioning would have been different. The accounts of the Society are separately maintained and subject to audit in the same way as the affairs of societies receiving Government grants are to be audited. Government usually impose certain conditions and restrictions when grants are made. No exception has been made in respect of the Society and the mere fact that such restrictions are made is not a determinative aspect.

Considerable attempt has been made by Mr. Rao, learned Counsel for the appellant, to show that in the functioning of the Society there is deep and pervasive control of Government. We have examined meticulously the correspondence and the instances where control was attempted to be exercised or has, as a fact, been exercised but these again are features which appear to have been explained away.

In spite of the above facts and circumstances the Court held that the Institute was not a 'State' or State Instrumentality or other authority.

10. Recently a Full Bench of this Court had occasion to hold in R. Thamilarasan v. The Director of Handlooms and Textiles, Madras 1989 1 L.L.J. 588that a Co-operative Society is not a State within the meaning of Article 12 of the Constitution and a writ petition is not maintainable as against a Co-operative Society. The Full Bench referred to several judgments of the Supreme Court and also other Courts. The full Bench observed at the end of the judgment as follows.

Viewed from any angle and in the. light of the pronouncements of the Supreme Court and of the other High Courts, particularly the two Full Bench judgment of different High Courts referred to above, it appears to us that a co-operative society is not an authority nor an instrumentality or agency of the Government to attract Article 12 of the Constitution and therefore not amenable to writ jurisdiction under Article 226 of the Constitution. As observed by the Division Bench of the Patna High Court in Harender Narain v. State of Bihar J 985 Lab. I.C. 1807 and also the Full Bench decision of Orissa High Court in Banabihari Tripathy v. Registrar of Cooperative Societies A.I.R. 1989 Orissa 31 (supra), we are also of the view that the tests laid by the Supreme Court in various cases on which heavy reliance was placed by the councel, who invited the Court to answer the issue in the affirmative are not satisfied by the co-operative societies in question to come under Article 12 of the Constitution as an authority or agency or instrumentality of Government It is not necessary to set out the various tests laid down by the Supreme Court once over to find out whether the co-operative society will satisfy and or some of the tests so laid down by the Supreme Court in view of the fact that we are in agreement with the views expressed by the Division Bench Judgment of the Patna High Court and, the two Full Bench judgments of Kerala and Orissa High Courts.

11. Thus the common thread which runs through the fabric of case law is, Article 226 can be invoked only against State or statutory bodies or authorities who are state instrumentalities. The general principle of Saw that a certiorari can issue only against judicial or quasi-judicial body would operate in conjunction with it. But, the language of Article 226 is very wide. The expression is 'any person or authority including in appropriate cases, any Government'. Undoubtedly, a power is vested in the Court to issue a writ against a private body or even an individual. In Rohtas Industries Ltd. v. Rohtas Industries Staff Union : (1976)ILLJ274SC Krishna Iyer, J., stated the law thus;

The expensive and extraordinary power of the High Courts under Article 226 as wide as the amplitude of the language used indicates and so can affect any person-even a private individual-and be available for any (other) purpose-even one for which another remedy may exist. The amendment to Article 226 in 1963 inserting Article 226(IA) reiterates the targets of the writ power as inclusive of any person by the expressive reference to the residence of such person'. But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china shop. This Court has spelt out wise and clear restrains on the use of this extra-ordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously adminsistered. Speaking in critical retrospect and portentous prospect the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights.

12. The note of caution contained in the above passage can never be ignored. It is only in exceptional cases, a writ should issue against a private body. Following the above dictum I granted a writ against a private school in C. Marianandam v. The Government of Tamil Nadu 1988 T.L.N.J. 350 on the ground that the monstrosity of the situation in that case warranted it. of course, in that case, I had also invoked the ruling of Mohan, J., in Mrs. S. Sivanarul v. The State of Tamil Nadu (1985) 1 M.L.J. 456 that a recognised school receiving aid and grant from the Government was amenable to writ jurisdiction.

13. The question of issue of a mandamus to a private individual or private body was considered by the Supreme Court inSri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Samarak Trust v. V.R. Rudani : (1989)IILLJ324SC . It was held that a mandamus can issue in every case and there are only two exceptions viz., (1) the rights are purely of a private character and (2) the respondent is a purely private body with no public duty. The following passage in the judgment may be quoted with Advantage;

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 appellate trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. 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 Administrative Law by M.P. Jain (1983) p.266). So are the service conditions of the academic staff. When the university takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship mandamus cannot be refused to the aggrieved party.

(Underling is mine).

14. However, it must be noted that in that case, it was a public trust which was running a science college at Ahmedabad. The college had permanent affiliation from the Gujarat University under the Gujarat University Act. The teachers employed in the college were paid in the pay scales recommended by the University Grant Commission. Referring to the decision in Vaish Degree College Case A.I.R. 1976 S.C. 888 the Court distinguished it by saying that in these earlier cases the college was managed by Co- operative society which was not a statutory body. Thus the Court maintained the distinction between statutory bodies and non-statutory bodies and held that except in the two categories of cases set out above, a writ of mandamus Will issue in all other cases. The underlined portion in the passage extracted above shows that the factum of Governmental aid and control was considered as an important factor.

15. Learned Counsel for the petitioner placed strong reliance on Harijander Singh v. Kakatiya Medical College : AIR 1975 AP35 . That was a case of a Medical college affiliated to osmania University though run privately. The management committee had also representatives of the State Government and the University. The management was receiving grants from the State of Andhra Pradesh and also from the Central Government some times. Laying emphasis on that fact, the Full Bench observed:

Insofar as certiorari, prohibition and declaration are concerned, these writs can be issued against a nonstatutoty body discharging public duties. More so when these public bodies receive grants from the Government as voted in the Legialature and are affiliated to the University which is a statutory body and controlled by its. Public bodies such as affiliated colleges placed as they are cannot be called as private bodies discharging purely private duties.

The subject matter of challenge in that case was an order cancelling the admission of a student to the 1st year M.B.B.S. Course passed in breach of rules of natural justice. The Full bench took the opportunity to consider the relationship of the teachers and the management of such an institution and express its opinion. The Full Bench has not said anything which will help the petitioner in this case.

16. The ruling of the Full Bench is only to the effect, if the authority to decide an issue by a body or tribunal is derived solely and exclusively from an agreement of the parties, the jurisdiction under Article 226 can be invoked. Applying that test to the facts of this case, there is no difficulty in holding against the petitioner. The contract of service between the petitioner and the third respondent is not a statutory one. No form has been prescribed by the Central Board of Secondary Education to which the school is affiliated or by any other authority. No statutory body has prescribed the terms to be incorporated in a contract of service between a teacher and the school. Under the Tamil Nadu Private School Regulation Rules forms are prescribed for agreements between the school and the staff. There are rules governing the terms. But, in the case of a school affiliated to the C.B.S.E. there is no such rule or regulation. It is seen from the Handbook for affiliation of institutions issued by the Central Board of Secondary Education that the Board does not prescribe the terms of service conditions between the teachers and the school authorities. The Board has only prescribed the minimum qualifications for the teachers to be appointed by the school. Of course, there is a provision for withdrawal of affiliation in the event of absence of adequate terms and conditions of the services ensuring security of service of teachers. That will not amount to control over the affairs of the school.

17. Learned Counsel for the petitioner referred to another judgment of the Andhra Pradesh High Court in T. Gattaiah v. Commissioner of Labour 58 F.L.J. 327 It was observed by Mr. Justice Choudary that under Article 226 a writ would lie not merely against a Government Department but also against any person. The learned Judge observed as follows:

The very wide and special language of Article 226 of the Constitution occurring as it does in a primordial document like the Constitution must, in my opinion, be given its full meaning. In doing so, we must take note of the fact that the Constitution itself declares that the General Clauses Act would apply to its interpretation. According to the General Glauses Act the word 'person' refers not only to a natural person but even to a legal person. If so done, there is no doubt, in my opinion, that a writ under Article 226 of the 'Constitution would be available not only against an authority or Government, but also against a private person. The restrictive meaning suggested to be given to the word 'person' occurring in Article 226 would render that word a surplus age because according to that interpretation the word 'person' can only mean another Governmental authority. The rule of interpretation that the meaning of a word should be ascertained from the association it keeps cannot, therefore, be applied to the word 'person' occurring in Article 226 of the Constitution. The above considerations, in my opinion, would clearly liberate the writ jurisdiction under Article 226 of the Constitution from the limiting constraints of the dictum of Atkin, L.J. in the above mentioned case. I, therefore, hold that in appropriate cases a writ under Article 226 of the Constitution could issue even against private person.

The learned Judge took the view that a private person could convert himself into an authority by affecting the rights of citizens by his bounties and facilities and in that event, he would be amended to writ jurisdiction. With great respect to the learned Judge I do not agree. If a private person can grant bounties and facilities either of his own accord or pursuant to. an agreement between him and the respondent, it cannot be said that he is converting into an authority thereby. As the Full Bench of the same High Court pointed out in the ruling referred to earlier, if the source of the right of the aggrieved person is a private agreement, then a writ cannot be issued. In fact, the Supreme Court has held in Bareilly Development Authority Case : [1989]1SCR743 that non-statutory contracts cannot be enforced under Article 226 of the Constitution.

18. Learned Counsel for the petitioner drew my attention to the judgment of Mr. Justice Subha rao in C.D. Sekkilar v. Krishnamoorthy : AIR1952 Mad151 . It was held in that case that the principal of an institution maintained from the funds of a public trust contributed from the public funds and affiliated to the university and governed by the rules of the university and a scheme framed by the High Court, is a person holding a quasi public office and a writ can be issued as against him. In that case the student applied for the writ as against him. In that case the student applied for the writ as against the principal with reference to an action taken by him in a disciplinary proceeding. That judgment does not help the petitioner in the present case as the facts are entirely different.

19. The only other contention raised by learned Counsel for the petitioner is that aid may mean not only aid in cash bat also aid in kind. According to him if an institution received aid in any manner from the State, it will fall within the scope of Article 12 and consequently Article 226 of the Constitution. I am unable to appreciate how this argument, even if accepted, would help the petitioner in the present case. On the facts it has not been proved as to what exactly is the aid received by the third respondent from the State. Without proving the relevant facts it is not possible for the petitioner to raise a contention in the abstract that aid would include any kind of aid. Even assuming that the third respondent is receiving aid in kind from the State, it should be of such a special nature as to make the institution a state instrumentality or a State agency. If the third respondent is receiving only such aid as may be received by any other citizen of this counted or to which any citizen of the country is entitled to, that will not be sufficient to make the third respondent a statutory body or a State instrumentality. Hence the contention has to be rejected.

20. If as contended by learned Counsel for the petitioner there is no necessity to consider whether the respondent against whom a writ is sought is a statutory body or a State within the meaning of Article 12. there would have been no necessity for the large amount of literature by the Supreme Court and this Court under Article 226 referred to earlier. There would have been no necessity at all to consider the question whether the respondent is a State or a statutory body. Therefore, as I have pointed out earlier, a writ can be issued against a private body or a private individual only in very exceptional circumstances and not in ordinary cases. Just because an institution has terminated the contract of service the person affected cannot come to this Court under Article 226 and pray for issue of a writ.

21. Learned Counsel for the third respondent drew my attention to a judgment of the High Court of Orissa in Ambika Prasad Mohanty v. Orissa Engineering College : AIR1989 Ori173 that private colleges which are not receiving grant-in aid from the State aid did not come within the definition of the State and a writ petition against the same is not maintainable.

22. Hence I upheld the preliminary objection raised by learned Counsel for the third respondent and dismiss this writ petition. In the circumstances of the case, there will be no order as to costs.