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Vibhu Kapoor Vs. Council of Indian School Certificate Examination and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 1598 of 1984
Judge
Reported inAIR1985Delhi142; ILR1985Delhi649
ActsConstitution of India - Articles 12 and 226
AppellantVibhu Kapoor
RespondentCouncil of Indian School Certificate Examination and anr.
Advocates: Mukul Rohatagi,; Maehswar Dayal and; Satish Aggarwal, A
Cases ReferredSabhajit Tewary v. Union of India
Excerpt:
constitution of india - article 12 & 226--whether the council for the indian school certificate examinations, a society registered under the provision of the societies registration act, 1860 is amenable to writ jurisdiction;the petitioner was alleged to have used unfair means in the indian school certificate examination conducted by the first respondent which is a society registered under the societies registration act. the petitioner was not awarded a pass certificate. apart from the merits of the case, the question before the court was whether either structurally or functionally, the first respondent can be regarded as either the state or a limb of the state or an authority within the meaning of the term as used in article 226 of the constitution. the object of the society is.....prakash narain, j. (1) the petitioner a young boy. a minor, approaches this court through his father major d. r. kapoor. for issue of a writ of certiorari or in the nature of certiorari, mandamus or in the nature of mandamus, or any other appropriate writ or order or direction to the respondent for quashing or setting aside the result in regard to the petitioner in paper 2 in english language and or a direction to declare the petitioner as having passed in both the english papers and awarding of a pass certificate showing that he has passed class-x examination conducted by respondent no. 1 in 1984.(2) the petitioner joined the cambrian hall school, at dehra dun in 1981. he was a boarder and had been residing in she school hostel. he had been well in his studies and had won several prizes.....
Judgment:

Prakash Narain, J.

(1) The petitioner a young boy. a minor, approaches this Court through his father Major D. R. Kapoor. for issue of a writ of certiorari or in the nature of certiorari, mandamus or in the nature of mandamus, or any other appropriate writ or order or direction to the respondent for quashing or setting aside the result in regard to the petitioner in paper 2 in English language and or a direction to declare the petitioner as having passed in both the English papers and awarding of a pass certificate showing that he has passed class-X examination conducted by Respondent No. 1 in 1984.

(2) The petitioner joined the Cambrian Hall School, at Dehra Dun in 1981. He was a boarder and had been residing in She school hostel. He had been well in his studies and had won several prizes and awards. In March 1984 the petitioner took the Indian School Certificate Examination conducted by the first respondent. Council of Indian Schools Certificate Examination at Centre No. T 353 at Dehra Dun. Throughout the examination there was no incident or allegation of use of 'unfair means' leveled against the petitioner at the sittings of any of the papers. In the end of April 1984, the petitioner received a letter dated April 26. 1984 from the Principal of Cambrian Hall School which state that a true extract of the letter from Respondent No. I was being attached. Petitioner was required to report to the school office at 9 a.m. between May 1 and May 5, 1984 to make a 'signed explanatory statement in the presence of two responsible persons about this report.' The extract of the letter from the first respondent referred to read as under:

I.C.S.E.March, 1984 : Subject English paper 2 Report on 'Unfair Means' at Centre No. T 353 Our Examiners report suspected use of unfair means in answering English Paper 2. involving the following candidates S. No, Name of Candidates Index No. 1. Vibhu Kapoor T 353/017 2. Vaneet Mago T 353/018 Report from the Co-Chief Examiner: Extract I have dispatched two answer scripts to you. Mr. A Allahabadi the Examiner and I suspect collusion. I have sent the scripts in the envelope. I have found the answers of the two candidates to be mysteriously identical. (T 3531017 & T 3531018). Dehra Dun G. W. Mayer 18 April, 1984 Principal Cambrian HALL.

(3) The petitioner and his father went and saw the Principal of the Cambrian Hall School as directed. The petitioner was asked to give in writing whatever he wanted to say in regard to the allegation of use of 'unfair means' in English Paper 2. On his understanding of the allegation the petitioner gave a signed statement as under:

WITH reference to English Paper No. 2 Report Ob Unfair Means at Centre No. T 353 involving me Vibhu Kappor, Index No. T 353/017 I declare that I have Not helped Vaneet Mago Index No. T 353/018 in any way. As a matter of fact I have barley come in contact with him as he is a day scholar and I have been a boarder. Similarly, he was also Not helpful to me in any way. But it is possible that he may have overlooked into my paper when I was busy writing, as I am not very conscious of anyone around me when I am doing my paper. All I have to slate is that I am totally at a loss to understand how our papers arc indentical. This statement is given voluntarily in precipice of witnesses.

(4) The petitioner and his father were naturally upset.. They met a number of persons while in Dehra Dun including the Principal of the School. The father of the petitioner wrote a letter of April 29, 1984 placing on record his conversation with the Principal. He also complained about the interest shown by some teachers and others of the school in the other boy involved in the incident, namely, Vineet Mago. The communication sent by petitioner's father to the Principal was acknowledged by him by his letter of May 8, 1984. It appears that the Principal (respondent No. 2) had a high opinion about the petitioner and his conduct. Some more correspondence ensued between petitioner's father and respondent No. 2. Petitioner's father also wrote to respondent No. 1. No communication was received by the petitioner or his father from respondent No. 1. Petitioner's father also met the Secretary of respondent No. 1. He was allegedly told that petitioner had done well in both the English Papers.

(5) The result of the petitioner was not declared along with the results of the other candidates who took the examinations. Ultimately, petitioner's father received n photo copy of the result in regard to the petitioner, by which it became clear that pass certificate had not been awarded to the petitioner because of his having secured Grade 8 in English. The photocopy that he received shows some 'authorised alterations' wherein against the subject English the grade originally given has been change Ted to Grade-8 and marks originally given have been changed to 25. When the petitioner failed to get redress from the respondents he filed the present petition.

(6) The petition came up for admission during vacation. Notice to show cause why rule nisi be not issued was ordered returnable on July 12, 1984 by the Vacation Judge. By way of interim relief the Vacation Judge also ordered that respondent No. 1 was to issue a provisional certificate to the petitioner for his having passed examination, subject, however, to the final decision in the writ petition. After the vacation the. matter came up before a Division Bench which issued rule. If. again ordered that the provisional certificate should be issued and that the said certificate was liable to be surrendered on the conclusion of the hearing of the case in that if the petition was allowed the petitioner would be entitled to a proper certificate but if the rule was discharged, the petitioner was not be entitled to have any benefit of the provisional certificate.

(7) Despite an order expediting the hearing, the case could not be heard till November. Before the Beach hearing the case an objection was raised on behalf of respondent No. 1 that the petition under Article 226 of the Constitutional was not maintainable against the respondents inasmuch as the first respondent was a society registered under the Societies Registration Act, which cannot be considered to be either the State or an authority within the meaning of Article 12 or Article 226 of the Constitution. Respondent No. 2 was likewise not amenable to writ jurisdistion. This objection was sought to be repelled on behalf of the petitioner. Reference was made to several cases on both sides. As the question of jurisdiction was not free from doubt, the Division Bench made a reference to the Full Bench, particularly as it felt that there was some possible conflict between the judgments of two Division Benches of this Court in cases reported in Miss Kumkum Khanna and others v. The Mother Acquinas, Principal Jessus and Mary College, Chankayapuri, New Delhi and another, : AIR1976Delhi35 and L. R. Sharma v. Delhi Administration and others, 1982 (1) Slr 526 That is how the matter is before us.

(8) The petitioner's contention is this. The decision of the first respondent cancelling the result of Paper 2 of the subject 'English' in regard to the petitioner is liable to be struck down as that decision has been taken in violation of the elementary rules of natural justice, has been taken by an authority not competent to take the decision, as much as the decision which has not been taken by respondent No. 1 at all but by an unauthorised committed and that the decision on the face of it is perverse as no reasonable person could have taken that decision; the petitioner passed in both papers 1 and 2 of the subject English and is, thereforee, entitled to be issued a pass certificate; with holding of his pass certificate by the first respondent is ultra virus its powers, illegal and indeed an action which has to be struck down being void. The petitioner also contend that the action taken against him by the first respondent is per se discriminatory being arbitrary and is also discriminatory otherwise. The petitioner says that he has been given no opportunity whatsoever by the first respondent and that be does not 'even know what the charge against him is.

(9) The petition is resisted only by the first respondent. The second respondent it appears, has taken a natural stand.

(10) The first objection of respondent No. 1 is that it is not amenable to writ jurisdiction under Article 226 of the Constitution as it is neither State nor an authority within the meaning of the terms as used in Article 226 of the Constitution. Its next contention is that action taken does not suffer from the vice of arbitrariness. There was a proper enquiry and the petitioner had full opportunity to give his Explanationn in regard to the allegation against him. It is further pleaded that in educational matters the Courts should not interfere in exercise of its jurisdiction under Article 226 of the Constitution.

(11) The first point to be decided, thereforee, is whether respondent No. 1 will be amenable to writ jurisdiction under Article 226 of the Constitution.

(12) Before we discuss the law on the subject, it would be appropriate to notice a few salient facts in regard to the coming into existence of respondent No. 1.

(13) The Council for the Indian School Certificate Examinations was established in 1958 and is registered under the Societies Registration Act No. Xxi of 1860. This is so declared respondent No. 1 in a booklet handed up to us which is titled 'Indian Certificate of Secondary Education Examination, Regulations and Syllabuses, March 1984'. This booklet is a priced publication for Rs. 12 and appears to have been issued under the authority of respondent No. 1 fay the Secretary, Council for the Indian School Certificate Examinations, Pragati House. 47-48 Nehru Place, New Delhi. According to what is written in this booklet. 'The Delhi Education Act, 1973, passed by Parliament, in Chapter I under Definitions Section 2(S) recognises the Council as a body conducting public examinations.' It is further stated, 'The Council was originally established by the University of Cambridge Local Examinations Syndicate with the assistance of the Inter State Board for Anglo-Indian Education.' It is also mentioned in this booklet that, 'The Council has been so constituted to secure suitable representation of Governments responsible for schools (which are affiliated to the Council) in their States/Territories; the Inter-State Board for Anglo-india'n Education: the Association of Indian Universities; the Association of Heads of Anglo-Indias Schools; the Indian Public Sechools' Conference; the Association of Schools for the I.S.C. Examination and eminent educationists.'

(14) The Memorandum of Association and Rules and Regulations of the aforesaid Council have also been placed before us. The Memorandum of Association provides that the name of the Society is : 'The Council for the Indian School Certificate Examinations (hereinafter called the 'Society')'. Its registered office will be at Pragati House, 3rd Floor, 47-4-8, Nehru Place, New Delhi.

(15) The object of the society is mentioned as educational, and includes the promotion of science, literature, the fine arts and the diffusion of useful knowledge by conducting School examinations through the medium of English. According to clause(3) of the memorandum, the Society exists solely for educational purposes and not for purposes of profit. The relevant portion of clause 3(a) reads as under : - '(a) For the object aforesaid or in furtherance thereof:

(I)to conduct examinations and award certificates for the time being in co-operation with the University of Cambridge Local Examinations Syndicate and to frame regulations for the conduct of its examinations and to modify, alter or cancel such regulations.

(IV)to enter into arrangements with any Government or authority whether Union, State, Municipal. Local or otherwise that may seem to be conducive to the object of the Society or to obtain from any such Government or authority such rights, concessions, and privileges as the Society may think desirable and to obtain and carry out, exercises and comply with any such arrangement, rights, privileges and concession.'

(16) The rules and regulations or Articles make provisions for various things and aspects. Article 5(1) reads as under:

'5.(i) The members of the Society shall be as follows: (b) Two members nominated by Government or two Assessors (observers) of the Government of India, whichever is preferred by that Government.. (c) The Director of Education/Public Instruction (or his deputy) of the States 'in which there are schools affiliated for the examinations conducted by the Society.'

'6.(i) The Society shall be administered by an Executive Committee consisting of the following : (a) A Chairman To Chairman of the Society to be ex-officio Chairman of the Executive Committee. (b) Four members to be elected by the Society.

(II)The quorum lor a committee meeting shall be three.

(III)The Secretary of the Council will be ex-officio Secretary of the Committee.'

'THE Executive Committee of the Society as above constituted shall have necessary powers, subject nevertheless to the Rules and Regulations of the Society, to do all such acts or things as are necessary for the management of the affairs of the society, or which, in its opinion, may be conducive to the attainment of the object of the Society.'

Articles 13 provides for the Annual General Meeting of the Society. Article 25 is of some importance and is in the following words:

THE Society may delegate any of their powers to a Sub-Committee consisting of one or more than one member of the Society as they think fit. Any such Sub-Committee so formed shall, in the exercise of the powers so delegated, conform to any regulation that may have been imposed upon them by the Society: the Sub-Committee may be given powers to co-opt.

(17) Thus we find that the first respondent is a Society registered under the Societies Registration Act and is bound to act in conformity with its Memorandum of Association, and Rules and Regulations of the Society, which we term as 'Articles. It being a body corporate can only act as such and in no other manner. The question is whether either structurally or functionally it can be regarded as either the State or a limb of the State or an authority within the meaning of the term as used in Article 226 of the Constitution. There can be no dispute that the function it performs or the purpose of its existence is a public function.

(18) Learned counsel for the petitioner, Mr. Mukul Rohtagi has strenuously urged that the public function performed by the first respondent namely, conducting of a public examination, which is an important facet of education, is really Governmental in character, on a reading of Article 41 of the Constitution.

(19) Article 41 of the Constitution is to be found in Part-IV, the Chapter dealing with Directive Principles of State Policy is the Constitution. This Article reads as under:

THE State shall, within the limits of its economic capacity and development. make effective provision for securing the right to work. to educate and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

(emphasis ours).

(20) In a welfare State a Government is required to discharge various functions. Some by way of an obligation and others by way of a duty. It cannot be disputed that the welfare State that we in our country envisage postulates that the State must try its best to make. effective provisions for securing education for its citizens, of course within the limits of its economic capacity and development. If the State does so then in the institutions run controlled by it there can be no doubt. the public function that is performed is Government in character. Private bodies and persons can also import education. If there is nothing else merely because private bodies or persons are discharging a function which is also discharged by the Government will not make the function discharged by private bodies or persons Governmental in character. There has to be something more. The case of the respondent is that it is a private body, a Society registered under the Societies Registration Act imparting education, it has nothing to do with the Government and, thereforee, its act cannot be called Governmental in character.

(21) Learned counsel for the petitioner has invited our attention to Section 2(s) and Section 19 of the Delhi School Education Act. He also refers to the booklet giving the Regulations and. Syllabuses above referred to and particularly what I we have extracted earlier from the said booklet handed up to us. It is contended that seeing the status given to the first respondent by Section 2(s) of the Delhi School Education Act coupled with the functioning and composition of the first respondent no doubt can be left in coming to the conclusion that the first respondent is a limb of the State discharging Governmental function in conducting the public examinations and awarding certifictes. Reference is also made to the Memorandum of Association and the Articles which we have read earlier.

(22) Mr. Rohtagi has first relied on two Bench de.'isions of tills Court reported in Miss Kumkum Khanna and others v. The Mother Acquinas, Principal, Jessus and Mary College, Chanakyapuri. New Delhi and another, : AIR1976Delhi35 and. Amir Jamia and others v. Desharath Raj, (3). He has also relied upon Ajay Hasia etc. v. Khalid Mujib Schravardi and others etc., : (1981)ILLJ103SC ; Barnett Coleman & Co. & Others v. Union of India and other, : [1973]2SCR757 : M. Kunju Mohammed and others v. State of Kerala and others, 1984 Lic 1124 D. P. Seshachalans v. Administrative Staff' College of' India., 1984 Uc 875and Smt. Pramila Gahi v. Union of India and another, 1984 Lic 108(8).

(23) In reply to the argument on behalf of the petitioner contending that respondent No. I is an authority or a limb of the State, within the meaning of Article 226 of the Constitution of India, Mr. Maheshwar Dayal, learned counsel for' respondent No. 1 has invited our attention to the constitution of the first respondent and urged that it is neither a statutory body nor a public body but only a society registered under the Societies Registration Act. He has relied upon Sabhajit Tewary v. Union of india and others, : (1975)ILLJ374SC , certain observations in Ajay Hasia's case : (1981)ILLJ103SC , The Nayagarh Co-operative Central Bank and another v. Narayan Rath and another, : AIR1977SC112 , Chander Mohan Khanna v. National Council of Educational Research, 2nd 1980(2) Del 1010 The State of U.P, and others v. Sri M. V. Siddiqui, 1980(1) Slr 526

(24) Before we deal with rival continue 526. Slr 1982 Sharma's R. L. of case the in other and AIR 1975 Del 37 Khanna's Kumkum Miss one court, this of decisions Bench two between, conflict a be to appears apparently what question examine first we that appropriate but would it contentions, respective their support parties for counsel learned by cited authorities

(25) In Kumkum Khanna's case the question which arose for determination was whether a petition under Article 226 of the Constitution was maintainable against the principal of a private college recognised by the University of Delhi. The impugned order was passed by the Principal of Jessus and Mary College, New Delhi preventing the petitioner and some other co-students from appearing at their exams at the, end of the academic year 1974-75 on the ground of shortage of attendence. The Bench held over-ruling the objection on behalf of the respondent-principal to the maintainability of a writ petition that though the office of' the Principal can exist outside a statute, it becomes a statutory office then the college is admitted to the privileges of the University. It was further observed that ever. if the office of the Principal vyas not to be regarded as statutory in the sense that it was elected by a statute, it was a public office because the powers and duties of the principal relate to a large section of the public, namely, the students of the college. According to the Bench, the principal of a private college, which is recognised and admitted to the privileges of the Delhi University was thus a person or authority (i.e. a public authority) within the meaning of Article 225 of the Constitution when the principal exercises powers which may be regarded in the nature of statutory duty, power and discretion under Ordinance Viii framed under the Delhi University Act. The exercise of such powers would, in consequence, be subject to mandamus and certiorari under Article 226 of the Constittuion.

(26) The covertness of the above rule was questioned in L. R. Shanna's case before another Bench of this Court, to which one of us (Prakash Narain, C.J.) was the party. In the facts and circumstances of that case, it was observed that the Bench was not really called upon to examine the correctness of the observations in the case of Miss Kumkum Khanna's case in view of what the Bench felt was settled law. It was, however, noticed that the decision in Kumkum Khanna's case ran counter to the rule enunciated in number of Supreme Court's judgments. As the same issue has been raised before this Full Bench, it will be appropriate to decide once for all as to whether in Kumkum Knanna's case the law was correctly enunciated. In our opinion, the law enunciated in Kumkum Khanna's case is not the correct law. With respect, we must say that the learned Judges of the Bench failed to note the difference between an authority created by the statute ana a person or a body of persons acting in accordance with the provisions of a statute. Merely because a body is governed by certain statutory provisions or has to conform to the same docs not mean that it becomes a statutory authority. The principal of a private college no doubt had to act in accordance with the ordinances of the University if the college was recognised by the University, The principal had to conform. to certain norms laid down by rules and regulations of the University, but that did not mean that the Principal become a statutory authority or a public authority. Merely because the Principal has to deal with tire large section of public, namely, the students, does not convert the office of the Principal into a public office within the meaning of the term so as to make it an authority under Article 226 of the constitution. With respect, we must overrule the decision in Kumkum Khanna's case and hold that the view propounded in L.R. Sharma's case is the correct view of the Saw.

(27) It is really not necessary to deal with all the authorities cited by learned counsel for the parties in deciding the issue as to the maintainability of the writ petition against the first respondent. The petitioner's case is to fall within the ambit of the rule enunciated in the latest decision of the Supreme Court in Ajay Hasia's case, if the petition Is to succeed. Tire other decisions are not relevant as all of them have been dealt with an commented upon by the Supreme Court in its decision in Ajay Hasia's case.

(28) The Regional Engineering College, Srinagar was one of the many Engineering Colleges in the country sponsored by the Government of India. The college is established and its administration and management arc carried on by a Society registered under the Jammu and Kashmir Registration of Societies Act. 1898. The dispute before the Supreme Court raised in a petition under Article 32 of the Constitution related to the admission of the petitioners to the first semester of B.E. course in one or the other branch of engineering. The petitioners were not able to secure admission though they had obtained very good marks in the qualifying examination because the marks awarded to them in viva voce examination were very low. Sonic candidates who had lower marks in the written exam but higher in the viva voce were admitted to the college. Petitioners feeling aggrieved by the mode of selection filed writ petitions challenging the validity of the admissions made to the college on diverse grounds. The main point canvassed before the Court was as to the fairness of the procedure adopted. An objection was raised that the college could not he regarded as 'authority' within the meaning of Article 12 of the Constitution and, thereforee, was not amenable to writ jurisdiction. After an exhaustive consideration of the law on the subject the Supreme Court, inter alia, held that in order to find out whether a person or a body of persons could be regarded as an authority within the meaning of Article 12 of the Constitution, the approach could not be that reliance was placed only on judging the issue by what is called the structural test. The functional test was of equal importance. Quoting with approval from its decision in Ramana Dayaram Shetty v. The International Airport Authority of India and others, : (1979)IILLJ217SC it was observed as follows : -

SO far as India is concerned, the genesis of the emergence of corporations as instrumentalities or agencies of Government is to be found in the Government of India Resolution on Industrial Policy dated 6th April. 1948 where it was stated inter alias that 'management of State enterprises will as a rule be through the medium of public corporation under the statutory control of the Central Government who will assume such lowers as may be necessary to ensure this.' It was in pursuance of the policy envisaged in this and subsequent resolutions on Industrial policy that corporations were created by Government for setting up and management of public enterprises and carrying out other public functions. Ordinarily these functions could have been carried out by Government department through its service personnel but the instrumentality or agency of the corporation was resorted to in these cases having regard to the nature of the task to be performed. The corporations acting as instrumentality or agency of Government, would obviously be subject to the same limitation in the field of constitutional and administrative law as Government itself, though in the eye of the law, they would be distinct and independent legal entities. If Government acting through its officers is subject to certain constitutional and public law limitations, it must follow a fortiori that Government acting through the instrumentality or agency of corporations should equally be subject to the same limitations.

A corporation may be created in one of two ways. It may be either established by statute or incorporated under a law such as the Companies Act 1956 or the Societies Registration Act 1860. Where a Corporation is wholly controlled by Government not only in its policy making but also in carrying out the functions entrusted to it by the law establishing it or by the Charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of Government. But ordinarily where a corporation is established by statute, it is autonomous in its working, subject only to a provision, often. times made, that it shall be bound by any directions that may be issued from time to time by Government in respect of policy matters. So also a corporation incorporated under law is managed by a board of directors or committee of management in accordance with the provisions of the statute under which it is incorporated. When does such a corporation become an instrumentality or agency of Government? Is the holding of the entire share capital of the Corporation by Government enough or is it necessary that in addition there should be a certain amount of direct control exercised by Government and, if so, what should be the nature of such control? Should the functions which the corporation is charged to carry out possess any particular characteristic or feature, or is the nature of the functions immaterial? Now, 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. But, as is quite often the case, a corporation established by statute may have no shares or shareholders, in which case it would be a relevant factor to consider whether the administration is in the hands of a board of directors appointed by Government though this consideration also may not be determinative, because even where the directors are appointed by Government, they may be completely free from governmental control in the discharge of their functions. What then are the tests to determine whether a corporation established by statute or incorporated under law is an instrumentality or agency of Government. It is not possible to formulate an inclusive or exhaustive test which would adequately answer this question. There is no cut and dried formula, which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not.' The Court then proceeded to indicate the different tests, apart from ownership of the entire share capital:.......IFextensive and unusual financial assistance is given and the purpose of the Government in giving such assistance coincides with the purpose for which the corporation is expected to use the assistance and such purpose is of public character, it may be a relevant circumstance supporting an inference that the corporation is an instrumentality or agency of Government....... It may thereforee be possible say that 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. But a finding of State financial support plus an unusual degree of control .over the management and policies might lead one to characterise an operation as State action Vide Sukhdev v. Bhagatram : (1975)ILLJ399SC. So also the existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality. It may also be a relevant factor to consider whether the corporation enjoys monopoly status which is State conferred or State protected. There can be little doubt that State conferred or State protected monopoly status would be highly relevant in assessing the aggregate we.ight of the corporation's ties to the State.

THERE is also another factor which may be regarded as having a bearing on this issue and it is whether the operation of the corporation is an important public function. It has been held in the United States in a number of cases that the concept of private action must yield to a conception of State action where public functions are being performed Vide Arthur S. Miller :

The Constitutional Law of the Security State' (10 Stanford Law Review 620 at 664)'

IT may be noted that besides the so-called traditional functions, the modern State operates a multitude of public enterprises and discharges a host of other public functions. 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. This is precisely what was pointed out by Mathew, J., in Sukhdev v. Bhagatram (supra) where the learned Judge said that 'institutions engaged in matters of high public interest of 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.

The Court however proceeded to point out with reference to the last functional test:.........the decisions show that even this test of public or governmental character of the function is not easy of application and does not invariably lead to the correct inference because the range of governmental activity is broad and varied and merely because an activity may be such as may legitimately be carried on by Government, it does not mean that a corporation, which is otherwise a private entity, would be an instrumentality or agency of Government by reason of carrying on such activity. In fact, it is difficult to distinguish between governmental functions and non-governmental functions. Perhaps the distinction between governmental and nongovernmental functions is not valid any more in a social welfare State where the laissez faire is an outmoded concept and Herbert Spencer's social statics has no place. The contrast is rather between governmental activities which are private and private activities which are governmental. (Mathew, J. in Sukhdev v. Bhagatram (supra) at p. 652). But the public nature of the function, if impregnated with governmental character or 'tied or entwined with Government' or fortified by some other additional factor, may render the corporation as instrumentality or agency of Government.

(29) Commenting upon the decision of the Supreme Court in Sabhajit Tewary : (1975)ILLJ374SC on which strong reliance has been placed by learned counsel for the first respondent it was observed in Ajay Hasia's case as under:

THE learned counsel appearing on behalf of the respondents Nos. 6 to 8, however, relied strongly on the decision in Sabhajit Tewary v. Union of India, : (1975)ILLJ374SC and contended that this decision laid down in no uncertain terms that a society registered under the Societies Registration Act, 1860 can never be regarded as an 'authority' within the meaning of Article 12. This being a decision given by a Bench of five Judges of this Court is undoubtedly binding upon us but we do not think it lays down any such proposition as is contended on behalf of the respondents. The question which arose in this case was as to whether the Council of Scientific and Industrial Research which was juridically a society registered under the Societies Registration Act, 1860 was an 'authority' within the meaning of Article 12. The test which the Court applied for determining this question was the same as the one laid down in the International Airport Authority's case and approved by us, namely, whether the Council was an instrumentality or agency of the Government. The Court implicitly assented to the proposition that if the Council were an agency of the Government it would undoubtedly be an 'authority'. But, having regard to the various features enumerated in the judgment, the Court held that the Council was not an agency of the Government and hence could not be regarded as an 'authority'. The Court did not rest its conclusion on the ground that the Council was a society registered under the Societies Registration Act, 1860, but proceeded to consider various other features of the Council fur arriving at the conclusion that it was not an agency of the Government and thereforee not and 'authority.' This would have been totally unnecessary if the view of 'the Court were that a society registered under the Societies Registration Act can never be an 'authority' within the meaning of Art. 12.

(30) In terms, thereforee, the Supreme Court has held that Sabhajit Tewary cannot be quoted to assert, like the first respondent asserts that it is not amenable to writ jurisdiction or the basis of the structural test. As observed by us earlier, if the first respondent can be regarded as a body discharging a function which is a public function in nature and it is impregnated with governmental character or tied or entwined with Government or fortified by some other additional factor which will make the first respondent an instrumentality or agency of Government it would be amenable to writ jurisdiction. This is the settled law now, and we have to advert to the facts of the present case to come to the conclusion one way or the other, either agreeing with the petitioner or agreeing with the first respondent.

(31) In our opinion, there can be no doubt that the public nature and the function discharged by the first respondent is so impregnated with governmental character that the first respondent has to be regarded as an authority within the meaning of the term in Article 226 of the Constitution. The first respondent is discharging the public function of imparting education, as contemplated by Article 41 of the Constitution. This, however, it could do even in its private capacity without being regarded as an authority within the meaning of Article 226 of the Constitution. As declared by the first respondent in the priced publication referred to earlier, it has entered into an arrangement with the Government to enable it to discharge its public function of imparting education and thereby has not only received the authority or concession or privilege to conduct public examinations but has been statutorily recognised by Section 2(s) of the Delhi Education Act as a body of persons or a society recognised and authorised by the Government to discharge the public function or the governmental function of imparting education. The rules and regulations of the first respondent read earlier show governmental supervision, if not control. Two of the members of the society are to be nominated by the Government which, as disclosed has either be full members or assessors. The Director of Education/Public Instruction (or his deputy) of the State in which a school affiliated to the first respondent exist as a member of the society not only functionally but also structurally the first respondent is deeply impregnated with Governmental character and is admittedly discharging a public function. If such an organisation is not to be regarded as an authority on the basis of the rule enunciated in Ajay Hasia's case. we do not know which other can. We, thereforee, hold that the first respondent is an authority within the meaning of the term as used in Article 226 of the Constitution. It is a limb of the Government in discharging the public function of imparting education and, thereforee, a petition under Article 226 of the Constitution for issue of a writ of certiorari or mandamus or both is maintainable.

(32) Having held that the writ petition is maintainable, we now proceed to examine the other contentions of the petitioner.

(33) The impugned decision penalising the petitioner for allegedly using unfair means in regard to the second paper in English subject, inasmuch as he allegedly either helped Vineet Mago to copy from his answer book or permitted the same to be done, was admittedly taken by a Committee known as the 'Awarding Committee' and not by the first respondent though it is averred in the return filed by the first respondent that it was the first respondent who cancelled the marks of the petitioner as originally given in English Paper 2. We repeatedly gave opportunities to the first respondent to show us if the Council had taken the impugned decision or if the Council, had even delegated that power to the Awarding Committee, but to no avail. Regulation A 4 in Chapter Iii of the aforementioned priced publication, also relied upon by the first resoondent, in terms lays down that it is the Council's satisfaction which is relevant and not of any committee or sub-committee constituted by the Council, unless the power to take decision has been delegated to the committee or a sub-committee under Article 13 of the. Memorandum of Association and Rules and Regulations of the first respondent. Mr.Maheshwar Dayal, learned counsel for the respondent very strenuously urged that there was delegation in favor of the Awarding Committee. He very fairly placed before us the minutes bocks of the various meetings of the Council. At its 29th Meeting, the Council on September 20, 197S had considered as one of the items of the Agenda the items to appoint an Awarding Committee. It is recorded that it was proposed that there should be an Awarding Committee of three persons consisting of two Principals of Local Schools and the Secretary as the convener and it be constituted. It is further recorded that the function of the Awarding Committee was to consider, after the results have been declared, in accordance with the regulations, the cases in. which candidates are alleged to have used unfair means and of candidates who were sick or have met with residents accidents in the examination period. It was suggested that two persons named there in be appointed as members of the Awarding Committee. The Resolution when read only mentions the following as constituting the Committee:

(I)Bro. R. B. Oman, Principal, St. Columba's High School,

(II)Sr. M. Astrid, Principal, Carmel Convent, New Delhi and

(III)The Secretary of the Council who will act as convener.

(34) From a reading of the above Agenda and the Resolution, Mr. Maheshwar Dayal wants us to deduce that powers were delegated under Article 13 of the Awarding Committee to withhold results or giving of pass certificate by way of disciplinary action as contemplated by Regulation A. 4 read earlier. We do not agree. The power had to be delegated specifically in clear terms, It was not delegated. thereforee, the finding of the Awarding Committee regarding use of unfair means against the petitioner should at best be regarded as a recommendation which had to be considered by the Council in accordance with Regulation A. 4 referred to earlier. Tins admittedly was not done. thereforee, the decision has been arrived at and the impugned order has been passed on the basis of the decision of an unauthorised body. The Council took no decision to penalise the petitioner. The impugned decision is thereforee, void and ineffective.

(35) We are also of the view that the impugned decision is liable to he struck down as being in violation of the elementary rules of natural justice. The petitioner or his father were never given any charge by the first respondent. They were never heard by the first respondent. No enquiry as to how the answers in the two copy books could be more or less similar was held. The action was taken on a mere suspicion by the Awarding Committee did not even care to examine the invigilators. No enquiry was held as to whether it was possible for the examinees in the time that was be available to either of the two candidates to copy or permit copying sitting in the examination hall when the scats of the two candidates were at a considerable distance. Suspicion cannot be the basis of action. It is not alleged that petitioner has copied from Vineet Mago. It appears to be a case in which Vineet Mago either copied from petitioner's copy book or was helped to copy. There seems to hays been no detailed enquiry. No detail? are pleaded or brought to our notice. The impugned action, thereforee, must be held to be arbitrary and is struck down.

(36) Although we would have liked to comment upon certain other features which came to light during the course of hearing, we refrain from doing so in the best interest of education and cordial relations among divers.' conmmunities..

(37) Before we part with the case, we may reject one other argument advanced on behalf of the respondents and that is that in educational matters Courts should not normally interfere. As a theoretical rule we accept the contention but where gross injustice is done by an institution to a student, it will be a mockery of the fundamental rights if Courts hesitate to exercise their powers.

(38) The result is that the rule is made absolute. The impugned decision purported to have been taken by the first respondent. though actually taken by its Awarding Committee, of withholding the grant of a pass certificate to the petitioner is struck down and a mandamus is issued to the first respondent to issue a pass certificate to the petitioner declaring him to have passed in the 10th class. A mandamus is also issued to restore the original grading and the original marks in English Paper 2 as well as in the pass certificate. The provisional certificate will be surrendered by the petitioner to the first respondent within one week and a proper pass certificate will be awarded by the first respondent to the petitioner within one week thereafter incorporating all the above directions. Petitioner would be entitled to costs. Counsel fee Rs. 1,000.00 .


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