ACHAMMA THOMAS Vs. PRINCIPAL ST TERESAS COLLEGE ERNAKULAM

JUDGEMENT

(1.) THE petitioner was appointed as a Lecturer in Botany in the St. Teresa's College, Ernakulam, by Ex. P-1 communication dated 29-6-1967. Ext. P1 states that the appointment is on probation for a period of one year from 4th July, 1967 to 31st May, 1968. Even after the expiry of the period, she continued in the post for the academic year 1968 69.

(2.) THE 1st respondent issued Ex. P2 notice on 11-4-1969 stating that the appointment of the petitioner for the academic year 1968-69 will cease on 31-5-1969.

(3.) COUNSEL for the 1st respondent contended that no writ or order in the nature of mandamus can be issued against the Principal of a private college, even if it is affiliated to the University, and in support of that position the decisions in Joseph Mundassery v. Manager, St. Thomas college, Trichur 1953 KLT 773 and Dr. G. F. Papali v. The University of travancore, 1956 KLT. 563 were cited. The decision in Joseph Mundassery v. Manager, St. Thomas College, Trichur, which was followed in the latter case can be distinguished on the ground that it was assumed in that case that there was no statutory duty on the private college in question there, which could be enforced by the issue of an order in the nature of mandamus. The assumption was made because no Statute or Ordinance of the Madras University which cast any such duty upon private colleges affiliated to that University was brought to the notice of the Court. This is what the Court said: "the laws of the University of Madras mean the rules laid down in the Madras University Act, 1923, and the Statutes, Ordinances and regulations made thereunder. S. 30,32 and 33 of the Act show how statutes, ordinances and Regulations of the University are made and it is impossible to say that the resolution passed by the Senate at its meeting on the 10th february, 1948 amounts to either a Statute or an Ordinance or a Regulation. The situation here is different. Under the Kerala university Act, 1957, as also under the Kerala University Act, 1969, a private college when it is affiliated to the University has got certain obligations and duties, which spell in the realm of statutory obligations and duties. Under s. 21 (I) of the Kerala University Act, 1969, the Syndicate has power to affiliate institutions in accordance with the terms and conditions of such affiliation prescribed in the Act and the Statutes. S. 300) of the Act provides that Statutes may provide for the conditions and procedure for affiliation of colleges. Chap. 57 of the Ordinances provides for the duties of a private college when affiliated. The College has a duty to confirm a teacher who has satisfactorily completed his probation. The question whether a teacher has satisfactorily completed his probation might be a matter for the college to decide. But, when once it is proved that a teacher has satisfactorily completed his probation, a statutory duty is cast upon the college to confirm the teacher. Although a private college may not be a statutory body, statutes or ordinances made under the Act may cast duties upon it, and if an applicant for mandamus shows that he is interested in the performance of a duty, I can see no reason why a writ in the nature of mandamas should not issue. In Praga Tools corporation v. Sri C. V. Imanual and others, 1969-1 S. C. W. R. 593 the Supreme court said: Thus, an application for mandamus will not lie for an order of reinstatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute (See sohan Lal v. Union of India 1957 S. C. R. 738 ). In Regina v. Industrial Court and Ors. 1965 - I Q. B 377, mandamus was refused against the industrial court though set up under the Industrial Court Act, 1919 on the ground that the reference for arbitration made to it by a minister was not one under the Act but a private reference "this Court has never exercised a general power" said Bruce, J:, in R. V. Lewisham Union-1897 1 Q. B, 498, 501, "to enforce the performance of their statutory duties by public bodies on the application of anybody who chooses to apply for a mandamus. It has always required that the applicant for a mandamus should have a legal and a specific right to enforce the performance of those duties. " Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. 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. (cf. Ha'sbury's Laws of England (3rd Ed. ,) Vol. II p. 52 and onwards ). The company being a non-statutory body and one incorporated under the Companies Act there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was therein its workmen any corresponding legal right for enforcement of any such statutory or public duty. "