To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute

Ravikiran Shukre | Manikchand Pahade Law College, Aurangabad | 20th January 2020

Anandi Mukta Sadguru Shree Mukta Jeevandasswami Suvarna Jaya v. V.R. Rudani & Ors [1989 SCR (2) 697]

Facts of the case:

1. The appellant no. 1 is a public trust and other appellants are its trustees. The trust was running a science college at Ahmedabad. The college initially had temporary affiliation to the Gujarat University under the Gujarat University Act, 1949. From June 15, 1973 onwards, the college had permanent affiliation under the said Act as amended by Gujarat Act No. VI of 1973. The University teachers and those employed in the affiliated colleges were paid in the pay scale recommended by the University Grants Commission. At one stage, there was some dispute between the University Area Teachers Association and the University about the implementation of certain pay scales. That dispute, by agreement of parties, was referred to the Chancellor of the University for decision. On June 12, 1970, the Chancellor gave his award in this regard.
2. This award of the Chancellor was accepted by the State Government as well as by the University. The latter issued direction to all affiliated colleges to pay their teachers in terms thereof. The appellants instead of implementing the award served notice of termination upon 11 teachers on the ground that they were surplus and approached the University for permission to remove them. But the Vice-Chancellor did not accede to their request. He refused the permission sought for. Then trust/management has come up with a decision, to close down the college to detriment teachers and students. The affiliation of the college was surrendered and the University was informed that the management did not propose to admit any student from the academic year 1975-76. It was again a unilateral decision without approval of the University. The college was closed with effect from June 15, 1975 with the termination of services of all the academic staff. The academic staff under law were entitled to terminal benefits. In fairness, that ought to have been paid simultaneously while being removed. But the management did not do that. 
3. The teachers waited with repeated representations only to get a negative reply and ultimately, they moved the High Court with writ petitions “To issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ or direction or order directing the respondent Trust and its trustees respondents to pay to the petitioners their due salary and allowances, the provident fund and gratuity dues in accordance with the Rules framed by the University and pay them compensation that would be payable to them under Ordinance 120 E and they may be further directed to pay the difference of pay payable to them on the implementation of the U.G.C. pay scales in accordance with Government Resolution as clarified by the Award passed by the Chancellor. 
4. As regards the arrears of salary payable under the Chancellor’s Award, the counsel contends that it is the liability of the Government and not of the management of the college. As regards the closure compensation payable under the Ordinance, he repeats the contention taken before the High Court and High Court held that, trust is a private body and is not subject to the writ jurisdiction under Article 226.

Judgment: 

1. The question before Supreme Court is that, whether the State is liable to recompense the appellants in respect of the amount payable to the respondents; which isnot considered by the High Court. 
2. After that, there exist two more important questions which were placed before supreme court that (i) The liability of the appellants to pay compensation under Ordinance 120E and (ii) The maintainability of the writ petition for mandamus as against the management of the college.
3. As trust is a private body, writ of mandamus cannot lie. But the fact cannot be denied that the 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.
4. The term “authority” used in Article 226, in the con- text, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art. 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words “Any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.
5. Professor De Smith in his commentary^[1] states that “To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.” 

Supreme court in this case held that the appeals fail and are dismissed but with a direction to the appellants to pay all the amounts due to the respondents as per the judgment of the High Court with 12% interest rate.

^[1] (Judicial Review of Administrative ‘Act 4th Ed. p. 540)