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UTTAR PRADESHIYA PRATHAMIK SIKSHAK SANGH & OTHERS versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Uttar Pradeshiya Prathamik Sikshak Sangh & Others v. State Of U.P. & Others - WRIT - C No. - 47967 of 2007 [2007] RD-AH 16993 (26 October 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on 29.10.2007

Delivered on 26.10.2007

Civil Misc. Writ Petition No. 47967 of 2007

Uttar Pradeshiya Prathamik Sikshak

Sangh, Zila Ekai district Chandauli

& others

Versus

State of U.P. and others

Hon'ble V.K. Shukla,J.

Uttar Pradeshiya Prathamik Sikshak Sangh, Zila Ekai (mRrj izns'kh; izkFkfed f'k{kd la| ftyk bZdkbZ) District Chandauli through its President Hridai Bhan Mishra, and Secretary Virendra Singh Yadav, have filed present writ petition questioning the validity of the decision dated 11.09.2007 passed by the General Secretary Uttar Pradeshiya Prathamik Sikshak Sangh (mRrj izns'kh; izkFkfed f'k{kd la|) Head Office Shikshak Bhawan Rishaldar Park, Lucknow, respondent no. 5 superseding the petitioners and appointing adhoc Committee to look after the affairs.

Uttar Pradeshiya Prathamik Sikshak Sangh, (mRrj izns'kh; izkFkfed f'k{kd la|) is a State Unit of the Primary Teachers. Said body at the State level is requires to hold election, from various district units. Its functioning and rules of the elections are governed by the Constitution of Uttar Pradeshiya Prathamik Sikshak Sangh, (mRrj izns'kh; izkFkfed f'k{kd la|) as approved after amendment in the year 2006 in 50th Conference at Sarnath, Varanasi. Said constitution provides the election of the District Unit and same deals with procedure which requires to be adopted for holding the election at district unit i.e. through calling delegates from various blocks and the constitution also deals with disciplinary proceedings. State Unit has been accorded recognition by the State Government on 20.10.1970. District Unit is required to hold election on the basis of their blocks representatives and right of voting is also to the general member of the general body. Petitioners have contended that they have validly elected in the election of the District Unit and they have been performing their duties sincerely. Petitioner have contended that for no rhyme or reason petitioners have been superseded and adhoc Committee has been constituted. Incumbent who has been installed already stands suspended. At this present writ petition has been filed.

Sri Shailendra, learned counsel for the petitioners contended with vehemence that in the present case Uttar Pradeshiya Prathamik Sikshak Sangh, (mRrj izns'kh; izkFkfed f'k{kd la|) has been constituted under the statutory provision and are discharging and performing statutory public function as such they ought to have acted fairly and transparently and in the present case authority vested has been misused with impunity as such action in question is liable to be quashed.

Sri V.K. Singh, Senior Advocate, assisted by Sri Rajendra Singh on the other hand contended that action which has been taken against the petitioners is strictly in consonance with the bye laws of the association, and further present writ petition is not at all competent and maintainable as respondent do not fall within the scope and ambit of Article 12 of the Constitution of India and there is no element of public functioning involved as such writ petition is liable to be dismissed on this score alone.

In order to consider the respective arguments as to whether present writ petition is maintainable or not, the constitution of Association of Uttar Pradeshiya Prathamik Sikshak Sangh, (mRrj izns'kh; izkFkfed f'k{kd la|) and the statutory provision on which reliance has been placed is being looked into.

Pradeshiya Prathamik Sikshak Sangh, (mRrj izns'kh; izkFkfed f'k{kd la|) is Association of the Teachers/ representatives of the teacher of Primary and senior Primary institution. Said Association has got its own bye laws and under the bye laws the aims and object of the Association has been provided for. Clause 2 provides that teachers of institutions run and managed by Basic Shiksha Parishad are entitled to become members. Clause 6 provides for Sadharan Sabha/Mahasabha and managing Committee. Clause 7 deals with Sadharan Sabha and Mahasabha, Clause 8 deals with rights and duties of the Sadharan Sabha and Mahasabha. Functioning of managing committee has also been provided for.

In the present case reliance has been placed by the petitioner on "The U.P. (Recognition of Service Association) Rules 1979. Said Rules have been framed in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, by the Governor of Uttar Pradesh. As per said Rules, Rule 2 (b) Government Servant means any person appointed by the Government to any Civil Services or post in connection with the affairs of the State and to whom all or any of the provisions of the Uttar Pradesh Government Servants Conducts Rules 1956 apply. Rule 2(c) deals with "Service Association" includes a Federation or a Confederation of Service Associations. Rule 3 provides that Service Associations which has been recognized by the Government before the commencement of these rules and in respect of which the recognition is subsisting at such commencement shall be deemed to have been recognized by the Government under these rules and shall continue to be so recognized unless the recognition is withdrawn under these rules. Rules 4 deals with condition under which recognition is to be granted Rule 5 deals with condition of recognition of Associations. Rule 6 deals with conditions of recognition of Federation. Rule 7 deals with conditions for recognition of Confederation. Rules 8 deals with contingency when recognition of Associations /Federations /Con-federations could be withdrawn.

Thus as per scheme of things the only authority State Government has in the event of contingency existing as provided under Clause (a) to (e) then recognition could be withdrawn and that to after providing opportunity of hearing. State Government has no authority whatsoever to govern the affairs of the said Association/ Federation/Confederation of Service Associations. The by laws of the association provides for as to how affairs of the said association are to be run and managed. In house procedure has been provided when District Unit could be superseded.

Now coming to various judgment to see as to whether present writ petition is maintainable or not same are being adverted to.

Constitution Bench of Hon'ble Apex Court in the case of Pradeep Kumar Biswash Vs. Indian Institute of Chemical Biology and others reported in 2002 (5) SCC 111 summed up its conclusion as follows .

"We sum up our conclusions as under-

(1) Simply by holding a legal entity to be an instrumentality or agency of the State it does not necessarily become an authority within the meaning of "other authorities" in Article 12. To be an authority, the entity should have been created by a statute or under a statute and functioning with liability and obligations to the public. Further the statute creating the entity should have vested that entity with power to make law or issue binding directions amounting to law within the meaning of Article 13(2) governing its relationship with other people or the affairs of other people their rights, duties, liabilities or other legal relations. It created under a statute, then there must exist some other statute conferring on the entity such powers. In either case, it should have been entrusted with such functions as are governmental or closely associated therewith by being of public importance or being fundamental to the life of the people and hence governmental. Such authority would be the State, for one who enjoys the powers or privileges of the State must also be subjected to limitations and obligations of the State. It is this strong statutory flavour and clear indicia of power-constitutional or statutory and its potential or capability to act to the detriment of fundamental rights of the people, which makes it an authority; though in a given case depending on the facts and circumstances an authority may also be found to be an instrumentality or agency of the State and to that extent they may overlap. Tests 1, 2 and 4 in Ajay Hasia Vs. Khalid Mujib Sehravardi reported in 1981 (1) SCC 722 enable determination of the government ownership of control. Test 3,5 and 6 are "functional" tests. The propounder of the tests himself has used the words suggesting relevancy of those tests for finding out if an entity was instrumentality or agency of the State. Unfortunately thereafter the tests were considered relevant for testing if an authority is the State and this fallacy was occurred because of difference between "instrumentality and agency" of the State and an "authority" having been lost sight of sub silentio, unconsciously and undeliberated. In our opinion and keeping in view the meaning within "authority" carries the question whether an entity is an "authority" cannot be answered by applying Ajay Hasia Vs. Khalid Mujib Sehravardi reported in 1981 (1) SCC 722 tests.

(2) The tests laid down in Ajay Hasia Vs. Khalid Mujib Sehravardi reported in 1981 (1) SCC 722 are relevant for the purpose of determining whether an entity is an instrumentality or agency of the State. Neither all the tests are required to be answered in the positive nor a positive answer to one or two tests would suffice. It will depend upon a combination of one or more of the relevant factors depending upon the essentiality and overwhelming nature of such factors in identifying the real source of governing power if need be by removing the mask or piercing the veil disguising the entity concerned. When an entity has an independent legal existence, before it is held to be the State the person alleging it to be so must satisfy the court of brooding presence of the Government or deep and pervasive control of the Government so as to hold it to be an instrumentality or agency of the State. "

Hon'ble Apex Court in the case of Zee Telefilms Ltd. Vs. Union of India reported in AIR 2005 SC 2677 qua BCCI, Board of Control for Cricket in India, took the view that it is not financially, functionally or administratively dominated by the Government, nor is under control of Government, Government only exercise limited control which is purely regulatory and no pervasive as such Board is not "State". Aggrieved party can file suit. Relevant paragraphs 24, 25 30 and 31 are being extracted below:

"24. To these facts if we apply the principles laid down by seven-Judge Bench in Pradeep Kumar Biswas (supra), it would be clear that the facts established do not cumulatively show that the Board is financially, functionally or administratively dominated by or is under the control of the Government. Thus the little control that the Government may be said to have on the Board is not pervasive in nature. Such limited control is purely regulatory control and nothing more.

25. Assuming for argument sake that some of the functions do partake the nature of public duties or State actions they being in a very limited area of the activities of the Board would not fall within the parameters laid down by this Court in Pradeep Kumar Biswas's case. Even otherwise assuming that there is some element of public duty involved in the discharge of the Board's functions even then as per the judgment of this Court in Pradeep Kumar Biswas (supra) that by itself would not suffice for bringing the Board within the net of "other authorities" for the purpose of Article 12.

30. However, it is true that the Union of India has been exercising certain control over the activities of the Board in regard to organising cricket matches and travel of the Indian team abroad as also granting of permission to allow the foreign teams to come to India. But this control over the activities of the Board cannot be construed as an administrative control. At best this is purely regulatory in nature and the same according to this Court in Pradeep Kumar Biswas's case (supra) is not a factor indicating a pervasive State control of the Board.

31. Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32."

Hon'ble Apex Court in the case of Binni Ltd Vs. Sadasivan Reported in 2005 (5) SCC 657 has taken the view that public law element must be there, in such action. Relevant paragraphs 16, 29, and 32 are being extracted below:

"16. The above guidelines and principles applied by English courts cannot be fully applied to Indian conditions when exercising jurisdiction under Article 226 or 32 of the Constitution. As already stated, the power of the High Courts under Article 226 is very wide and these powers have to be exercised by applying the constitutional provisions and judicial guidelines and violation, if any, of the fundamental rights guaranteed in Part III of the Constitution. In the matter of employment of workers by private bodies on the basis of contracts entered into between them, the Courts had been reluctant to exercise the powers of judicial review and whenever the powers were exercised as against private employers, it was solely done based on public law element involved therein.

29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel the public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsbury's Laws of England 3rd ed. Vol. 30, "a public authority is a body not necessarily a county council, municipal corporation or other local authority which has public statutory duties to perform and which perform the duties and carries out its transactions for the benefit of the public and not for private profit." There cannot be any general definition of public authority or public action. The facts of each case decide the point.

32. Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not a State within the meaning of Article 12 of the Constitution and such body is amenable to the jurisdiction under Article 226 of the Constitution and the High Court under Article 226 of the Constitution can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties.

Hon'ble Apex Court in the case of S.S Rana Vs. Registrar Co-operative Societies reported in 2006 AIR SCW 3723, took the view that society has been constituted under the Act and State has no say in the functions of the society, and same is governed by laws of the Society. Relevant paragraphs of the said judgment, paragraphs 9, 10.11,12,13, 14 and 19 are being extracted below:

"9. It is not in dispute that the Society has not been constituted under an Act. Its functions like any other Co-operative Society are mainly regulated in terms of the provisions of the Act, except as provided in the bye-laws of the Society. The State has no say in the functions of the Society. Membership, acquisition of shares and all other matters are governed by the bye-laws framed under the Act. The terms and conditions of an officer of the Co-operative Society, indisputably, are governed by the Rules. Rule 56, to which reference has been made by Mr. Vijay Kumar, does not contain any provision in terms whereof any legal right as such is conferred upon an officer of the Society.

10. It has not been shown before us that the State exercises any direct or indirect control over the affairs of the Society for deep and pervasive control. The State furthermore is not the majority shareholder. The State has the power only to nominate one director. It cannot, thus, be said that the State exercises any functional control over the affairs of the Society in the sense that the majority directors are nominated by the State. For arriving at the conclusion that the State has a deep and pervasive control over the Society, several other relevant questions are required to be considered, namely: (1) How the Society was created?; (2) Whether it enjoys any monopoly character?; (3) Do the functions of the Society partake to statutory functions or public functions?; and (4) Can it be characterized as public authority?

11. The respondent No.1-Society does not answer any of the afore-mentioned tests. In the case of a non-statutory society, the control thereover would mean that the same satisfies the tests laid down by this Court in Ajay Hasia vs. Khalid Mujib Sehravardi [(1981) 1 SCC 722]. [See Zoroastrian Coop. Housing Society Ltd. vs. District Registrar, Coop. Societies (Urban) and Ors. reported in 2005 (5) SCC 632.]

12. It is well settled that general regulations under an Act, like Companies Act or the Co-operative Societies Act, would not render the activities of a company or a society as subject to control of the State. Such control in terms of the provisions of the Act are meant to ensure proper functioning of the Society and the State or statutory authorities would have nothing to do with its day-to-day functions.

13. The decision of the seven Judge Bench of this Court in Pradeep Kumar Biswas (supra), whereupon strong reliance has been placed, has no application in the instant case. In that case, the Bench was deciding a question as to whether in view of the subsequent decisions of this Court, the law was correctly laid down in Sabajit Tewary vs. Union of India and Ors. [(1975) 1 SCC 485], and it not whether the same deserved to be overruled. The majority opined that the Council of Scientific and Industrial Research (CSIR) was a 'State' within the meaning of Article 12 of the Constitution of India. This Court noticed the history of the formation thereof, its objects and functions, its management and control as also the extent of financial aid received by it. Apart from the said fact it was noticed by reason of an appropriate notification issued by the Central Government that CSIR was amenable to the jurisdiction of the Central Administrative Tribunal in terms of Section 14(2) of the Administrative Tribunals Act, 1985. It was on the aforementioned premises this Court opined that Sabhajit Tewary (supra) did not lay down the correct law. This Court reiterated the following six tests laid down in Ajay Hasia vs. Khalid Mujib Sehravardi [(1981) 1 SCC 722]:

"(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 an 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 relevant factor .....whether the corporation enjoys monopoly status which is State conferred or State protected.

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

(5) If the functions of the corporation are 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.

(6) 'Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of Government."

This Court further held:

"This picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State."

(Emphasis supplied)

14. As the respondent No.1 does not satisfy any of the tests laid down in Pradeep Kumar Biswas (supra), we are of the opinion that the High Court cannot be said to have committed any error in arriving at a finding that the respondent-Bank is not a State within the meaning of Article 12 of the Constitution of India.

19. The Society has not been created under any statute. It has not been shown before that in terminating the services of the appellant, the respondent has violated any mandatory provisions of the Act or the rules framed thereunder. In fact, in the writ petition no such case was made out."

Respondents at the best is recognized association within the scope and ambit of 1979 Rules. State Government has got no functional control over the affairs of the Association, as Association has been conferred with the authority of self governance by means of elected representatives. General regulations under the Rules, would not render the activities of association as subject to control of the State. Such control in terms of rules are meant to ensure proper functioning of the association, and neither the State or statutory authorities have anything to do with day to day functions. As per the terms and condition of recognition, Association is debarred from sending representation, except in connection with matter which is of common interest to member of service association. Annually list of office bearers and members are to be submitted and further amendment is permissible with the approval of State Government. Rule 8 authorises State Government to withdraw recognition after recording satisfaction and after affording opportunity, if contingencies provided therein are available. These provisions are regulatory in nature. Uttar Pradesh Prathmik Shikshak Sangh cannot be treated as an authority under Article 12 of Constitution of India. Lastly it was contended that writ against private person is also maintainable in view of the word "person" occurring in Article 226 of the Constitution. Reliance has been placed on the judgment of A.P. High Court 1981 FLR 202, T Gltiah Vs. Commissioner of Labour. Since the taking of such view much water has flown and judgment referred to above of the Hon'ble Apex Court have taken care of this situation also. Here as per by-laws of the society action has been taken and there is no violation of any statutory provision. Remedy of the petitioner lies in perusing Civil Suit, as dispute is of purely private character with no element of public interest.

Consequently present writ petition is dismissed. Remedy of the petitioners lies in filing civil suit.

26th October, 2007

Dhruv


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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