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Ajay Gambhir and anr. Vs. Dean, Mahatma Gandhi Institute of Medical Sciences, Sevagram, Dist. Wardha and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 244 of 1985
Judge
Reported inAIR1986Bom26; 1985(2)BomCR372; 1985MhLJ597
ActsConstitution of India - Articles 12, 14, 41, 47 and 226; Nagpur University Act 1974 - Sections 43 and 48
AppellantAjay Gambhir and anr.
RespondentDean, Mahatma Gandhi Institute of Medical Sciences, Sevagram, Dist. Wardha and ors.
Appellant AdvocateS.A. Bobde, Adv.
Respondent AdvocateC.G. Madkholkar,;V.R. Manohar,;M.N. Ingle and;S.K. Sanyal, Advs.
Excerpt:
.....is 501 bedded, well equipped teaching hospital. 30.5 lakhs which was shared by central government, state government and the society in the proportion of 50:25:25. the recurring as well as non-recurring expenditure was also shared in the same ratio. the central as well as the state governments have also spent out of united states aid grant of rs. it is only in exceptional cases that power under art. before taking a review of that aspect, we will like to deal also with the submission that these respondents are even 'state' within the meaning of art. 12. there are additional reasons why writ can go against the dean as well as the society. this education is regulated by several enactments with the sole object of achieving best standards. therefore it cannot be said that a public utility..........amount for capital expense to the tune of rs. 30.5 lakhs which was shared by central government, state government and the society in the proportion of 50:25:25. the recurring as well as non-recurring expenditure was also shared in the same ratio. the overall expenses for the first year pertaining to the establishment and the running of the institute were to the extent of over rs.one crore. the central as well as the state governments have also spent out of united states aid grant of rs.200 lakhs, a sum of rs.165 lakhs by 31st mar.1975. the indian council of medical research - a wholly government institution - has also been giving funds for a large number of research projects funds for a large number of research projects being carried out by the institute. the governing council of the.....
Judgment:

Mohta, J.

1. The writ petition is filed by two students of the Mahatma Gandhi Institute of Medical Sciences of Sewagram, District Wardha ('Institute') run under the aegis of respondent No.2, the Kasturba Health Society (Society). Dean of the Institute is respondent No.1 and Local Managing Committee of the Institute is respondent No.12. Are these respondents or any of them in the matter of admission of students to various study courses amenable to writ jurisdiction of High Court under Art.226 of the Constitution, is the principal point, that arises in the petition.

2.Dr. Ajay Gambhir, petitioner No.1 and Dr. (Mrs.) Mohini Goswami, petitioner No.2 passed their M.B.B.S. Examination from the Institute. They completed their internship and so also the two house-jobs. First petitioner did house jobs one in Paediatrics and the other in Medicine and second petitioner one in Gynaecology and Obstetrics and the other in Anaesthesiology. They entered into a Bond as per Annexure VI to the petition, under which they agreed to pay to the Society a sum of Rs. 25,000/- on failure to serve the society after post graduation for a period of two years. These two students were interested in admission to the Post-Graduate course and had applied for that purpose. Petitioner No.1 had given first preference to the subject Medicine, the second to Paediatrics and petitioner No.2 to Gynaecology and Obstetrics. According to them, they were fully eligible, had nothing adverse against them and were entitled to admission on the basis of merit. They filed the complete applications well in time i.e. before 21st Jan. 1985. On 22nd Jan. 1985, they saw a notice on the Notice Board indicating that unless they got themselves relieved from the bonds in favour of the Society, they would not be considered. Interviews were fixed on 24th Jan. They were never offered any service by the Society and hence there was no question of paying Rs.25,000/- each to the Society. Suspecting lack of bonafides, they filed a Writ Petition No.167 of 1985 against the Dean, the Society and the Nagpur University. The petition was admitted on 29th Jan. 1985, rule was made returnable on 31st Jan. when by consent of parties, the petition was taken up for hearing. The Dean and the Society stated that the impugned notice dated 22nd Jan. 1985 is withdrawn and that the petitioners will be considered on merits. On this statement, the petition was allowed to be withdrawn by order dated 31st Jan. 1985. Interviews were taken but the petitioners were not granted admission despite the undisputed position that they were having marks higher than those who were selected for admission. Respondents Nos.4 to 6 in this petition were competitors of petitioner No.1 and respondents No.7 to 9 were competitors of petitioner No.2. Being aggrieved, the present writ petition has been filed. Respondent No.8 Dr. Miss Tiwari did not join and hence her name was deleted. The petitioners had filed two applications one dated 26th Feb. 1985, and the other dated 27th Feb. 1985. By the first application, the petitioners sought permission to add Local Managing Committee of the Institute as a party respondent and to raise certain additional points. Second application was also for amendment. We allowed those applications. Shri Manohar, the learned counsel for respondents Nos. 1 and 2, took notice also on behalf of the Local Managing Committee (L.M.C) which is joined as respondent No.12.

3. To the claim of the higher merits of the petitioners and their eligibility, there is no defence worth considering. In fairness to Shri Manohar, it will also have to be observed that no attempt to justify the action of refusal of admission on merits was even made. The only defence to the petition was that it is not maintainable against respondents Nos.1,2or 12 as none of them is either 'State' within the meaning of Art.12 or its agency or instrumentality.

4. From the material placed on record such as statements on oath, the Annual Reports and the Souvenir on 'WHO Work Shop on Epidemiology, Control of Leprosy and Multi drug Campaign' published by the Society and the Institute, the following positions emerge: Father of the Nation - Mahatma Gandhi made village Sewagram as his place of abode. He started Kasturba Hospital there. To begin with this hospital was run by his Ashram and then by Gandhi Smarak Nidhi. In 1964 was formed an autonomous body 'Kasturba Health Society' to manage the hospital. Dr. Sushila Nayar (respondent No.10) was then the Union Health Minister. She experienced great difficulty in posting qualified doctors in rural areas. Prime Minister Shri Shastri suggested to the Health Minister to start Medical Colleges in rural areas so that young doctors trained in rural setting would better understand the health problems of rural areas and would be more willing to work in villages. Dr. Sushila Nayar suggested that the first rural medical college in the country should have Kasturba Hospital at Sewagram as its base. The Planning Commission approved of this proposal and the National Committee for Gandhi Centenary with President of India as its President and the Prime Minister as the Chairman of its Executive Committee gave blessings to the proposal. The Deputy Prime Minister and Finance Minister Shri Morarji Desai called a joint meeting of the Health and Finance Ministers of the Government of India and the Government of Maharashtra and Dr. Sushila Nayar, the President of the Kasturba Health Society. It was decided therein that the expenditure of the project will be shared by the Government of India, Government of Maharashtra and Kasturba Health Society in the proportion of 50:25:25. In Aug. 1969, the dream of these national leaders became reality and the Institute started. Kasturba Hospital is 501 bedded, well equipped teaching hospital. The Institute is affiliated to the Nagpur University (respondent No.3) as required under the Nagpur University Act, 1974 (N.U.Act). Separate Local Managing Committee of the Institute (respondent No.12) was formed as required under S. 43 of the N.U.Act.

5. The Institute initially spent amount for capital expense to the tune of Rs. 30.5 lakhs which was shared by Central Government, State Government and the Society in the proportion of 50:25:25. The recurring as well as non-recurring expenditure was also shared in the same ratio. The overall expenses for the first year pertaining to the establishment and the running of the Institute were to the extent of over Rs.One Crore. The Central as well as the State Governments have also spent out of United States aid grant of Rs.200 lakhs, a sum of Rs.165 lakhs by 31st Mar.1975. The Indian Council of Medical Research - a wholly Government Institution - has also been giving funds for a large number of research projects funds for a large number of research projects being carried out by the Institute. The Governing Council of the Institute consists of 10 individuals, out of which, following five are representatives of the Government :

(a) Secretary, Ministry of Health and Family Welfare, Government of India, New Delhi.

(b) Deputy Secretary (IF) , Ministry of Health and Family Welfare, Government of India, New Delhi.

(c) Secretary, Medical Education and Drugs, Government of Maharashtra, Bombay.

(d) Director of Medical Education and Research, Government of Maharashtra, Bombay.

(e) Director General of Health Services, Government of India, New Delhi.

Its financial matters are under the control of the Standing Finance Committee of six members, out of which following three are representatives of the Government.

(a) Deputy Secretary (IF),Ministry of Health and Family Welfare, Government of India, New Delhi.

(b) Deputy Secretary (M), Ministry of Health and Family Welfare, Government of India, New Delhi.

(c) Secretary, Ministry of Education and Drugs, Government of Maharashtra, Bombay.

Five remaining members of the Governing Council and three remaining members of the Standing Finance Committee are representatives of the Society, of which the President of Zilla Parishad, Wardha happens to be one.

6. The academic courses are conducted by the Institute in accordance with the Ordinances framed by the Executive Council of the Nagpur University as required under the N.U.Act. Several matters such as appointment of staff, their termination etc. are also regulated by the N.U.Act. The study in various disciplines is regulated by the Indian Medical Council a statutory body under the Indian Medical Council Act, 1958 (I.M.C.Act). Any society desirous of forming an institution for imparting university education has to apply to the Nagpur University for affiliation. The procedure for affiliation is prescribed in Chapter VII of the N.U.Act. Before the N.U.Act came into force, the affiliation was governed by Chapter VI of the Nagpur University Act, 1963 which provided for constitution of Governing Council. S.43(3)(b) of the N.U.Act provides for constitution of separate L.M.C. to be constituted by the Management with the Principal of the College as the Secretary. This Committee is different from the managing body of the Society and its formation is a condition precedent for the affiliation. S.48 makes it obligatory to constitute a local managing committee as required under S.43(3)(b) within a period of six months from the commencement of the N.U.Act even for those colleges who were affiliated under the old Act. Local Managing Committee as per the report of the Society 'shall be responsible for the academic activities of the college and ensure all round academic excellence within the framework of the Nagpur University and the Medical Council of India.' Rules for admission are finalized by the Local Managing Committee. Rules provide for constitution of Selection Committee and for admission to various courses on the basis of merit alone. Both the Central and State Governments have authority to nominate students to study courses in the Institute and financial assistance is rendered by the Government in the form of fee concession for economically backward class students, Primary Teacher's children concession, Govt. of India Free ship to backward class students, Free concession to children to Service Personnel and several Government Scholarships. Four seats are reserved for nominations by the Central Government and two for nomination by the State Government at the under-graduate level with no reservation at post-graduate level.

7. We may at this stage notice the silent features of the Memorandum of Association and Rules and Regulations of the Society which is duly registered as a public trust under the Bombay Public Trusts Act. Maximum limit of members is 21. The first members were to be nominated by the Chairman of the Gandhi Smarak Nidhi, New Delhi. The Secretary of the Nidhi or a representative of the institution in succession of it is the ex-officio member of the Society. Representatives from the Government of India, Government of Maharashtra and Zilla Parishad are other members but their number is not to exceed one-third of the total membership.Cl. 15 deals with Holding Trustees in whom the property of the trust vests. The Chairman of the Society has a casting vote. Dr. Sushila Nayar is the life President. Secretary is to be elected from the non-official members. The Society has powers to remove the members other than the members representing the State and the Central Government and for such removal prior permission either of the Central Government or State Government is not necessary.

8. It is against the above backdrop that the scope and ambit of Art.226 vis-a-vis the right of the students for admission for studies in the Institute is to be examined. Art.226(1) read thus :

'226. Power of High Courts to issue certain writs. - (1) Notwithstanding anything in Art.32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus,prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III for any other purpose.'

Language of the Article does not create any bar against issuance of directions, orders or writs against a person. Writs include writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them. They can be issued not only for enforcement of fundamental rights but also 'for any other purpose' and against any person or authority or Government. Were we to equate person only with authority there would be a surplusage which has always to be avoided under the known canons of construction. In Rohtas Industries Ltd. v. Rohtas Industries Staff Union : (1976)ILLJ274SC , the following observations are of importance :

The expansive and extraordinary power of the High Courts under Art. 226 is 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.'

But the power is neither unbridled nor unlimited. It has restrictions and limitations. It is only in exceptional cases that power under Art. 226 is to be exercised against a person or affecting a person. Before taking a review of that aspect, we will like to deal also with the submission that these respondents are even 'State' within the meaning of Art. 12. That 'State' will include also its agency or instrumentality admits of no debate now. What that concept is?

9. In Praga Tools Corporation v.C.V. Imanual : (1969)IILLJ479SC , though writ was not issued against the company on the ground that it was for enforcement of contract, the following significant observations were made :

'An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purposes of fulfilling public responsibilities.'

In the context of modern State increasingly operating upon various non-regal, non-traditional but important public functions inter sociological notion of the 'State' was adopted and it is observed in Sukhdev v. Bhagatram : (1975)ILLJ399SC .

'institutions engaged in matters of high public interest or performing public functions are by virtue of the nature of the functions performed government agencies. Activities which are too fundamental to the society are by definition too important not to be considered government functions.'

In the case of Ramana Shetty v. International Airport Authority : (1979)IILLJ217SC in the above context and in the context of an autonomous body being agency or instrumentality of the State and therefore a 'State' within the inclusive meaning of Art. 12 it is observed :

'It is not the relationship of principal and agent which is relevant and material but whether the Corporation is an instrumentality of the Government in the sense that a part of the governing power of the State is located in the Corporation and though the Corporation is acting on its own behalf and not on behalf of the Government, its action is really in the nature of State action ............................................It will thus be seen that there are several factors which may have to be considered in determining whether a corporation is an agency or instrumentality of Government. We have referred to some of these factors and they may be summarised as under : whether there is any financial assistance given by the State, and if so, what is the magnitude of such assistance, whether there is any other form of assistance given by the State, and if so, whether it is of the usual kind or it is extraordinary, whether there is any control of the management and policies of the corporation by the State and what is the nature and extent of such control, whether the corporation enjoys State conferred or State protected monopoly status and whether the functions carried out related to governmental functions..........................This particularisation of relevant factors is however not exhaustive, and by its very nature it cannot be, because with increasing assumption of new tasks, growing complexities of management and administration and the necessity of continuing adjustment in relations between the corporation and Government calling for flexibility, adaptability and innovative skills, it is not possible to make an exhaustive enumeration of the tests which would invariably and in all cases provide an unfailing answer to the question whether a corporation is governmental instrumentality or agency. Moreover, even amongst these factors which we have described, no one single factor will yield a satisfactory answer to the question and the Court will have to consider the cumulative effect of these various factors and arrive at its decision on the basis of a particularised inquiry into the facts and circumstances of each case.'

Some other decisions of the Supreme Court having bearing on the topic are Som Prakash v. Union of India ; Ajay Hasia v. Khalid Mujib Sehravadi : (1981)ILLJ103SC and B.S.Minhas v. Indian Statistical Institute : (1984)ILLJ67SC . The last authority mandates that Art. 12 must receive a broad and liberal interpretation wherever constitutional fundamentals vital to the maintenance of human rights are at stake and that not the form but substance must be sought.

10. That Local Managing Committee of an affiliated college under the N.U.Act is a 'State' is no more res integra. The Division Bench of this Court in the case of B.M. Vidhwans v. Nagpur University (S.C.A. No. 1753 of 1977 decided on 16/18th July, 1980) has held so. On somewhat similar lines is another decision of the Division Bench of this Court in the case of Shreekant Rajeshwarrao Kshirsagar v. G.S. College of Commerce, Wardha 1978 MahLJ 22. These two decisions are based inter alia on the case of Prabhakar Jodh v. A.L.Pande : [1965]2SCR713 a case under the University of Sauger Act 1946, under which also constitution of a Governing Body of a college is mandatory. Respondents placed heavy reliance on the case of Executive Committee of Vaish Degree College. Shamli v. Lakshmi Narain : (1976)IILLJ163SC but that was not a case of managing committee constituted under the relevant law viz. Agra University Act. The ration in the case of Commr., Lucknow Division v. Kumari Prem Lata Misra : [1977]1SCR957 will also have no application as it related to the basic section of a school which was not held to be a part of a recognised institution. We may at this stage notice that even a service contract form referred to in the Schedule A of the College Code under the N.U.Act has been held to be statutory by Full Bench of this Court in Premlata v. G.S. Tompe College 1981 MahLJ 332.

11. Thus we see no difficulty whatsoever in holding that Respondent No.12 is a 'State' within the meaning of Art. 12 and appropriate writ can be issued against it. L.M.C. is responsible for framing the Rules relating to admission and maintaining academic excellence within the framework of the University and the Medical Council. Dean is ex-officio Secretary of the L.M.C. which in a sense is a statutory agent or instrumentality of the Society for establishing and administering the Institution. Writ must be effective and must reach all those on whom incidence ultimately falls. After all property is held by the Society. Thus the writ can under the circumstances go even against the Dean and the Society.

12. There are additional reasons why writ can go against the Dean as well as the Society. No particular test is exhaustive or conclusive. How a body is created is no longer a deciding factor. It may be debatable that the Government has ultimate administrative or financial control over the Society considering its constitution, though it cannot be disputed that the public trust is running this Institute with the aid of public funds and huge government aid (which is 75%) running into crores of rupees. There is no much control of the Government over the Society as such but control on the Institute is considerable. One of the important tests to be applied is a functional test. Imparting higher medical education is the function of the Institute. This education is essentially concerned with national health. Arts. 41 and 47 in Chapter IV deal with education and public health. They embody some of our national goals for fulfilling which public funds are being utilized by the Government. This education is regulated by several enactments with the sole object of achieving best standards. Those obtaining degree will be entitled to deal with human life at its crucial stage. Thus the Institute in one sense is performing a statutory duty and is therefore also an instrumentality of State.

13. In any case it is performing a public duty or public function and is therefore amenable to writ jurisdiction even as a person. It cannot be forgotten that its origin is in the public work started by the father of nation. Several public men of high calibre and national and international repute are involved with it. Under all these circumstances, we are unable to see any private capacity in any of these respondents. Their capacity is essentially public which implies a duty to act fairly and justly. In our judgment, this is consideration of prime importance in relation to a relief contemplated under Art. 226. This Court in the case of Corporation of the City of Nagpur v. The Nagpur Electric Light and Power Company Ltd. Nagpur : AIR1958Bom498 had occasion to consider whether Nagpur Electric Light and Power Company Limited could be issued a mandamus for performing its duty under the Electricity Act or under the licence. The answer was recorded in the affirmative by making the following observations :

' In the Supreme Court case it is held that normally, writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of a public duty. The statutory duty, devolving upon a public utility concern is a public duty. Therefore it cannot be said that a public utility concern like the respondent is in the same position as a private party.'

In 73 Corpus Juris Secundum at page 998, it is observed :

'As a general rule, a public utility has the duty to give the public reasonable and adequate service at reasonable rates and without delay.

A public utility has the duty to supply a commodity or to furnish service to the public. This duty exists independently of statues regulating the manner in which it shall do business or of contracts with municipalities or individuals, and is imposed because the utility is organized to do business affecting a public interest and holds itself out to the public as being willing to serve all members thereof. Broadly speaking, the primary duty of a public utility is to give reasonable and adequate service at reasonable rates and without delay.'

In the case of C.D. Sekkilar v. R. Krishnamoorthy : AIR1952Mad151 a writ of mandamus was issued against the Principal of a College managed by a Public Trust and affiliated and governed by the Rules of University. In the case of S. Goverdhan v. Rani Laxmidevamma College of Arts, Commerce and Science, Wanaparthy : AIR1983AP125 High Court issued a writ of mandamus against the Principal of Rani Laxmidevamma College of Arts, Commerce and Science run by a public trust on the ground that the Principal of this private college was performing a public duty.

14. The law in England from where we have borrowed the concept of various forms of writ is not different. In R.v. Criminal Injuries Compensation Board (1967) 2 All ER 770, writ was issued even against a non-statutory Board as it was performing a public duty. In the case of E.S. Evans v. Charles E. Newton 382 US 296 : 15 LawEd. 373, writ of mandamus was issued in respect of a park though not owned by the State on the sole ground that it came within public domain.

15. Our attention has just now been invited by Shri Bobde, the learned counsel for the petitioners to a very recent decision of the Supreme Court in the case of Manmohansingh v. Commr., Union Territory : (1985)ILLJ514SC which completely supports the line we are adopting. It is observed :

8. The matter can be viewed from a slightly different angle as well. After the decision of the Constitution Bench of this Court in Ajay Hasia v. Khalid Munjib Sehravardi, : (1981)ILLJ103SC the aided school receiving 95% of expenses by way of grant from the public exchequer and whose employees have received the statutory protection under the 1969 Act and when subject to the regulations made by the Education Department of the Union Territory of Chandigarh as also the appointment of Headmaster to be valid must be approved by the Director of Public Instruction, would certainly be amenable to the writ jurisdiction of the High Court. The High Court unfortunately, did not even refer to the decision of the Constitution Bench in Ajay Hasis's case rendered on Nov. 13, 1980 while disposing of the writ petition in 1983. In Ajay Hasia's case, Bhagwati J., speaking for the Constitution Bench inter alia observed that 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. Add to this 'the existence of deep and pervasive State control which may afford an indication that the Corporation is a State agency or instrumentality.' Substituting the words 'public trust' in place of the 'corporation' the reasons will mutatis mutandis apply to the school. Therefore, also the High Court was in error in holding that the third-respondent school was not amenable to the writ jurisdiction of the High Court.'

It is contended that the above ratio cannot have application to the case at hand inter alia on the ground that this is not an aided school receiving 95% of the expenses by way of grant. It is difficult to see how such minor difference in the percentage of grant will change the principle adopted.

16. Thus respondent No.1, respondent No.2 as well as respondent No.12 are all amenable to writ jurisdiction of High Court under Art. 226. Petitioners were clearly entitled to admission. We, however, would not like to disturb respondents Nos. 4 to 7 and 9 for they cannot be held responsible for their wrongful preference. The course has commenced and we do hope and trust that there will not be any further delay in giving to these meritorious students what is legitimately due to them.

17. To conclude, the petition is allowed and the rule is made absolute in the above terms. Respondent No.1 is directed to grant registration to petitioner No.1 in post-graduation course in M.D. Medicine or Paediatrics and to petitioner No.2 in post-graduation course in M.D. Obstetrics and Gynaecology for the current term, if necessary by creating supernumerary posts and without disturbing registration given to respondents Nos. 4 to 7 and 9. There shall be no order as to costs. Petition allowed.


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