Members Of Charitable Society Running Private College Are "Public Servants": Kerala High Court

The Court noted that the admission and fixation of fees to the institution is governed by the provision of the Kerala Medical (Regulation and Control of Admission to Private Medical Institutions) Act, 2017. Justice K. Babu held that since the authorities are discharging a 'State function' under the obligation of existing laws, they are discharging a public duty and are public servants.

“'Public duty' as defined in Section 2(b) of the PC Act, means a duty in the discharge of which the State, the public or the community at large has an interest. Thus a 'public servant' must be under the positive command of a State law or valid executive direction to discharge such a 'public duty'. If a body or a corporation exercises a State function under the obligation of the existing law, it is to be treated as a discharge of 'public duty.”

The Court concluded that the college authorities were public servants by virtue of Section 2(b) and 2(c)(vii) of the PC Act. Section 2(c)(vii) says that any person who holds an office by virtue of which he is authorized or required to perform any public duty is a public servant. Public duty is defined in 2(b) as a duty in discharge of which the State, the public or the community at large has an interest.

The petitioner had made a complaint before the Director of Vigilance saying that the members of the charitable society who was running 'Nazreth Pharmacy College' denied admission to eligible students to the seats allotted to the Government and sold those seats to private students after accepting a huge capitation fee from them.

The complaint alleged that the members misappropriated that amount. It is alleged that the said act is in violation of the provision of Kerala Professional College or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitation Fee & Other Measures To Ensure Equity & Excellence in Professional Education) Act, 2006. The complaint said that the authorities have committed offences punishable under Section 5 r/w Section 15 of the Act, Section 13 of the PC Act and Sections 406 & 409 of the Indian Penal Code.

When there was no action from the vigilance, the petitioner approached the Court of Enquiry Commissioner and Special Judge, Kottayam. The Court asked the petitioner to get approval under Section 17A of the PC Act. The Vigilance sought approval from the competent authority. The Government informed the Vigilance to drop the enquiry as the matter is being considered by the Admission Supervisory Committee. The petitioner challenged this order of the Government.

The Court observed that as per Section 17A of the PC Act, prior approval is needed only for conducting an investigation into acts which are related to any recommendations made or decisions taken by a public servant in the discharge of his official function or duties. The Court held that the alleged acts did not come within its ambit.

The Court directed the Vigilance Department to conduct a preliminary inquiry into the issue.

Case No: WP(Crl.) 791 of 2022

Case Title: A. K. Sreekumar v The Director and Others

Citation: 2024 LiveLaw (Ker) 803