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Praveen Kumar and anr. Vs. JaIn Vishva Bharati Institute and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1565 of 2000
Judge
Reported inRLW2004(4)Raj2528; 2004(4)WLC219
ActsConstitution of India - Articles 12 and 226; University Grants Commission Act, 1956 - Sections 3
AppellantPraveen Kumar and anr.
RespondentJaIn Vishva Bharati Institute and anr.
Appellant Advocate P.K. Lohra, Adv.
Respondent Advocate G.L. Rawal and; Harish Purohit, Advs.
DispositionPetition dismissed
Cases ReferredAmerican Home Products Corporation v. Mac Laboratories
Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect -.....n.p. gupta, j.1. by this writ petition, the petitioners seek quashing of the charge-sheet annexure-8 dt. 24.3.2004, so also order of expulsion, passed against the two petitioners on 31.3.2004 being annexure-9 & 10, and also seek a direction to allow both the petitioners to appear in the final examination of msw course commencing from 19.4.2004, or any other date as notified by the respondents, for the academic session 2003-2004. the directions are sought against the two respondents, being no. 1 jain vishva bharati institute (deemed university) ladnun, district nagour through its vice chancellor, and no. 2 being the registrar, jain vishva bharati institute (deemed university).2. the factual allegations are, that the institute was founded in the year 1970, with the inspiration of late.....
Judgment:

N.P. Gupta, J.

1. By this writ petition, the petitioners seek quashing of the charge-sheet Annexure-8 dt. 24.3.2004, so also order of expulsion, passed against the two petitioners on 31.3.2004 being Annexure-9 & 10, and also seek a direction to allow both the petitioners to appear in the Final Examination of MSW Course commencing from 19.4.2004, or any other date as notified by the respondents, for the Academic Session 2003-2004. The directions are sought against the two respondents, being No. 1 Jain Vishva Bharati Institute (Deemed University) Ladnun, District Nagour through its Vice Chancellor, and No. 2 being the Registrar, Jain Vishva Bharati Institute (Deemed University).

2. The factual allegations are, that the Institute was founded in the year 1970, with the inspiration of late Acharya Shri Tulsi, as a centre of education, literature, culture, social service, meditation and spirituality, with a primary objective of the institute, to provide instruction, training, research, experimentation, in the fields of oriental learning, Shraman culture and other related subjects. The Institute is imparting education in the field of Jainology, Science of Living and Programmes in Social Work namely; Bachelor of Social Work (BSW), and Master in Social Work (MSW) etc. It is alleged, that in the year 1991, by issuance of notification under Section 3 of the University Grants Commission Act, 1956, hereafter to be referred to as 'the Act.' the Institute was notified as deemed University. It is getting aid from the University Grants Commission (UGC), and the teachers employed are governed, in the service conditions, and wage structure, as prescribed by the UGC, the courses and curriculum for the studies are also prescribed by the UGC. Thus the Institute is working as per guidelines of the UGC. The degrees of Graduation, as well as Post Graduation awarded by the Institute are also recognised degrees. Thus, it is alleged, the Institute is an instrumentality of the State' within the meaning of Article 12 of the Constitution, and is amenable to writ jurisdiction.

3. Regarding petitioners it is alleged, that the first petitioner did his Graduation in Arts from Maharishi Dayanand University, Rohtak in the year 2002, and sought admission in the respondent Institute for prosecuting studies of MSW in the Academic Session 2002-2003, being two years Post Graduate Degree Course. He competed the Previous Examination. The second petitioner is said to have completed the graduation from Rajkiya Kara Mahavidyalaya, Alwar, which was affiliated to University of Rajas-than in the year 1997. Then he did his Post Graduation in Political Science in the year 2000, and thereafter sought admission in the respondent Institute for prosecuting the studies of MSW in the Academic Session 2002-2003, and passed Previous Examination in the year 2003. In para 6 it is pleaded that the petitioners were vigilant and were also concerned about their fellow student and therefore, on many occasions, before the respondents, and other teachers, both of them espoused just causes of the students. In this sequence, when they approached on 2-3 occasions to ventilate the grievances, it was not taken in good taste by the teachers of the respondent Institute, and in order to camouflage their omissions and commissions and their failures, vitiated the atmosphere, and attempts were, to implicate both the petitioners in some alleged misdemeanors and misbehaviors with the fellow students, including terrorizing fellow students. With this, it is alleged, that when the Academic Session 2003-2004 was on the verge of completion, the second respondent passed an office order on 24.3.2004, in the joint name of both the petitioners alleging that they are creating unpleasant atmosphere, and indiscipline in the campus as well as outside. Both the students were suspended from attending the classes, and they were asked to vacate the hostel. The order was also accompanied with the charges framed against both the petitioners, inasmuch as, 8 charges were framed against the first petitioner, and 6 charges were framed against the second petitioner. The charges include, not only himself boycotting, but also threatening and influencing his fellow mates and junior students, to boycott the Foundation Day function, which was held on Saturday, 20.3.2004. According to the petitioners, they were required to submit their explanation on 25.3.2004 at 5 P.M. itself, which shows, that the respondents have per-determined the proposed action against both the petitioners. As they were asked to vacate the hostel, and they were not having the support of their parents and well wishers at the relevant time, taking advantage of this helpless and vulnerable position, the petitioners were asked to accept the charges, interalia, in these circumstances, both the petitioners submitted their reply, partly admitting the charges, and without holding any formal enquiry, and without giving opportunity to produce their defence, impugned orders, Annexure-9 and Annexure-10, were passed, expelling them from the Institute with immediate effect.

4. I need not got to the grounds of challenge to the impugned orders Annexure-9 and Annexure-10, or seriousness of the charges framed vide Annexure-8, for the simple reason, that the respondent institute is not amenable to writ jurisdiction, as the same is not Instrumentality of State within the meaning of Article 12, as it is Society, registered under the Rajasthan Societies Registration Act, 1958, the objectives of the Institute are enumerated in Clause 5 of its Memorandum and Articles of Association. It is a deemed University, but is an autonomous body, and is not having deep and pervasive control' of the Government of Rajasthan, or the Government of India, the Administration and Management of the Institute is maintained according to the Memorandum of Association of the Institute, the highest executive body of the institute is Shista Parishad, which acts as a general deliberative and supervisory body, the principal executive body of the Institute is Prabandha Mandal/Board of Management, which consists of:-

(i) Kulpati- Chairman,

(ii) Two nominees of the Kuladhipati; who shall be person of eminence in the fields of academics, industries, trade or profession,

(iii) One nominee of the Shista Parishad,

(iv) One nominee of the Chairman, U.G.C.,

(v) One nominee of the Government of India,

(vi) Head of Department (one by seniority in rotation

(vii) One nominee of the State Government,

(viii) One nominee of the Vitta Samiti,

(ix) Two teachers of which one from amongst Professors/Readers and other from Lecturers to be nominated by Kuladhipati,

(x) Four nominees of Jain Vishav Bharti, of which, one shall be a woman, and

(xi) The Kulasachiva shall be the non-member Secretary.

5 The Board is empowered to manage conduct and administer all the affairs of the Institute not otherwise specially provided. The Board of Management is empowered to create, keep in abeyance or abolish teaching and academic posts, to determine the number, qualification, and cadres thereof, as appoint Professors, Associate Professors, Assistant Professors and other academic staff, paid or honorary, and the entire administrative and executive hierarchy of the Institute shows, that the Government of India, or the Government of Rajasthan, or the UGC are not having administrative or supervisory control over the administration of the Institute. The Society is getting aid from the U.G.C. for development purpose, only to the extent of 20-25% only, and the main sources to receive financial aid are the donors and not the Government or any of its agencies. Thus, it is not amenable to writ jurisdiction under Article 226.

6. In rejoinder it is contended that by virtue of definition given in Section 2(f) of the Act, the Institute is a deemed University, and the Act is also applicable to the Institute. With this, it is pleaded, that according to Section 14 of the Act, it the obligation of the Institutes to comply with the recommendations of the Commission, and in the event of failure of the Institutes, the grant of funds to the Institutes can be withheld by the UGC. Then Section 20 of the Act postulates, that the Commission, in discharge of its functions under this Act, shall be guided, on the question of policy, relating to national purpose, as may be given to it by the Central Government, and the matters relating to policy are to be finally decided by the Central Government. Then, according to Section 22, Deemed University has been conferred power of conferring degrees; therefore, in the totality of circumstances, it is clear, that the deep and pervasive control of the Central Government, over the Institute is clearly apparent. It is also contended that the respondent is getting financial aid from the UGC the allocation and disbursement of fund of the U.G.C. depends upon the financial needs of the Institute, as per the provisions of Section 12(a) and (cc) of the Act of 1956. Then according to the prospectus issued by the respondents, in item No. 6, under the caption 'Special Features' it has been mentioned, that the financial assistance was provided to the Institute by the U.G.C. for setting up two Yoga Centers, to offer theoretical and practical training, of Science of Living, Preksha Meditation & Yoga, and to build spiritual cum Scientific personality. It was also mentioned, but certain subjects of these centers are included in NET/JRF and SLET examinations, conducted by the UGC, and the State Government, respectively, and thus it as amenable to writ jurisdiction of this Court.

7. Arguing the writ, the learned counsel for the petitioner relied upon judgment of Hon'ble the Supreme Court, in Ajay Hasia v. Khalid Mujib Sehravardi, 1981 (1) SCC 722, and contended, that since the respondent is receiving grant-in-aid from the U.G.C. it is amenable to writ jurisdiction. it was also contended, on the basis of this authority, that whenever there is arbitrary action, Article 14 immediately springs into action and strikes down such an action, and therefore, in the present case this Court should interfere in the writ jurisdiction.

8. On the other hand, learned counsel for the respondent on the authority of Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain, AIR 1976 SC 888, contended that the respondent Institute stands at par with Vaish Degree College, and cannot be said to be an instrumentality of the State, so as to be amenable to writ jurisdiction, Learned counsel also read to me para-90 of the judgment of Hon'ble the Supreme Court, in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, 2002 (5) SCC 111, and contended that what is required to be seen is, as to whether the 'body' is mini-incarnation of the Government itself, and made up of its blood and bone and given corporate shape and status for defined objectives and not beyond. The device is too obvious for deception, a government company though, is but the alter ego of the Central Government and tearing of the juristic veil worn, would being out the true character of the entity being 'the State'. If judged on these parameters, the respondent cannot be said to be the 'State' or 'instrumentality of the State' within the meaning of the Article 12 or the incarceration of the Government, or its offspring, or depending upon the funds of the Government, and cannot be said to be amenable to writ jurisdiction.

9. In rejoinder it is contended by the learned counsel for the petitioner, that the learned counsel for the respondent has read only minority judgment in Pradeep Kumar Case's case, inasmuch as, the case was decided by a Bench of seven Hon'ble Judges, and the majority judgment finishes at para 66, and from para 67 onwards is the minority judgment, and therefore, reliance on para 90 of the said judgment is wholly bad. Then learned counsel referred to para 42, 44, 48, 52, 55, 56 and 58 of the judgment in Pradeep Kumar's case. Learned counsel then relied upon para 16 of the judgment in Ajay Hasia's case, and also relied upon a Division bench judgment of this Court in Sudhir Ranjan v. Birla Institute of Technology & Science, RLR 1988 (1) 118, to contend, that once it is notified to be deemed university it is entitled to grants made by the Central Government under the Act, and can award degrees, and that the Central Government is entitled to conduct enquiry, if considers necessary, in respect of any matters connected with the Institute, and that the Institute is engaged in the matter of high public interest, and performing public functions, there is combination of State act and the performance of public service. Learned counsel then also relied upon judgments in. Dr. R. Sivaraman v. The Registrar, Dr. M.G.R. Medical University, Guindi, AIR 1999 Madras 82, Manmohan Singh v. Commissioner Union Territory, Chandigarh, AIR 1985 Lab. I.C. 672, Chairman School of Budhist Philosophy, Leh, Ladakh v. Makhan Lal Mattoo and Anr., 1990 (4) SCC 6, All India Sainik Schools Employees Association v. Defence Minister-cum-Chairman Board of Governors, Sainik Schools Society, New Delhi, 1989 Suppl. (1) SCC 205, Master Vibhu Kapoor v. Council of Indian School Certificate Examination, AIR 1985 Delhi 142, and Banasthali Vidyapeeth through Secretary v. R.L. Gupta, RLR 2002(3) 445 Learned counsel also cited a judgment of Hon'ble the Supreme Court reported in Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt.) and Ors. v. K. Devi and Ors., 1996 (4) SCC 76, to contend that since by virtue of issuance of notification under Section 3, within the meaning of Section 2(f) of the Act the respondent becomes a University by legal fiction, it has to be taken to be University for all intent and purposes.

10. I have considered the rival submissions, and have gone through various judgments cited by the learned counsel for the parties.

11. The core question in this case is, as to whether the respondent Institute can be said to be 'State', or 'other authority' under the 'deep and pervasive control of the Government', without the meaning of Article 12 of the Constitution of India

12. At the outset it may be noticed, that it is not in dispute, that the writ petition would lie, only against the 'State', obviously as defined by Article 12 of the Constitution. Obviously, because if there is nay violation of any common law, or statutory right, of any individual at the hands of other individual or private body, the person aggrieved may have his remedy under the common law, or before the other authority, constituted or established under various Acts. The jurisdiction of this Court under Article 226 is extra ordinary jurisdiction, as distinguished from the ordinary jurisdiction of the Courts, or the authorities. It is obviously exercised to strike against the State actions, which are violative of fundamental legal rights of the persons.

13. The scope of the jurisdiction under Article 226 of the Constitution has already been subject matter of adjudication by Hon'ble the Supreme Court consistently, in series of judgments, and it cannot be said to be any more in controversy, that the jurisdiction is available only against the 'State', or 'authority' regarded as State, within the meaning of Article 12. The expression 'authority of state' has already been subject matter of adjudication before Hon'ble the Supreme Court in a series of judgments, as to whether it should be given a narrow meaning, or expanded meaning, and it is clear, that if the government acting through its officers is subject to certain constitutional limitations, it must follow a fortiorari, that the government acting through the instrumentality, or agency of a corporation, should equally be subject to the same limitations. However, if a corporation is created like a society, under the Societies Registration Act, or may be incorporated under the law, and is managed by the Board of Directors, or Committee of management, in accordance with the provisions of the statute, under which it is incorporated, it becomes instrumentality or agency of the Government, depending on the extent of the holding of the share capital, nature of control, or the functions which Corporation is also to carry out, possess any particular characteristic, or feature, or nature of the functions.

14. It was held in Ramana's case, 1979(3) SCC 489, in para-14 as under:-

'14 A corporation may be created 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 got 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 all- inclusive or exhaustive test which would adequately answer this question. There is not cut an dried formula which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not.'

15. Coming to the cases cited by the learned counsel for the petitioner; in Sudhir Ranjan's case, this Court was considering the status of Birla Institute of Technology and Science. It is not clear in the judgment, as to how the Institute was founded, what was the composition of the executive or the controlling body thereof, and all that is noticed is, that it was founded as an All India Institute for Higher Education, and then it was noticed that the Central Government has issued a notification under Section 3 of the Act. notifying it to be deemed University. Then the judgment proceeds on the assumption that it is run by the public money and the grants given by the U.G.C. and a sum of Rs. 32 lacs has been recently given by the U.G.C. and that the Government has the right to cause an inspection of the Institute, and then it was also noticed that its management is also run by the Government of India nominees, nominees of the Rajasthan University. Technical nominees etc., and the Chairman is to be elected from amongst the members of the Board of Governors, subject to the approval of the Government of India. Then in para 3 it is noticed that the report of the Board of Governors together with audited statement of account and budget estimates is to be submitted to the Central Government, and the Central Government has a right to cause inspection of the Institute, its building, laboratories its examination, teaching and other work, conducted or done by the Institute, and to cause an enquiry to be made, if considered necessary by the Central Government in respect of any matter connected with the institute. Then in para 19 it was noticed that Institute had received a sum of Rs. 1.29 Crores as non recurring grant. Then another grant of Rs. 32 lacs was received for purchase of laboratory equipment in Feb. 1985. In these circumstances, it was noticed that the Institute awards degrees which is recognised by the U.G.C. and that looking to the powers of the Central government, and in view of the circumstances that the Institute is engaged in the matter of high public interest or performing public functions, there is combination of State act, and the performance of public service, and thus, it was held to be 'State' within the meaning of Article 12, and the writ was hold to be maintainable.

16. Then in R. Sivaraman's case, the Division Bench of Madras High Court was considering the question as to whether the Madras Medical College, Chennai was a deemed University, or was continuing to retain the status of a college affiliated to the University,' and after considering the notification, and the provisions of the Act, it was held, that merely because the Chennai Medical College Chennai continues to be in schedule, it does not take away its status of Deemed to be University, rather by necessary implication, the said college is deemed to be excluded from the schedule, the moment the declaration is made under Section 3 of the U.G.C. Act (para-16 of the judgment). Thus, in my view, that judgment has no bearing on the controversy precisely involved in the present case.

17. Then taking up the case of Ishaq Mohammad v. Jaipur Metals and Electrical Co., 1988(1) R.L.R. 157, in this case a Division Bench of this Court was considering as to whether M/s. Jaipur Metals and Electrical Co. is a 'company' within the meaning of Article 12 of the Constitution, and for determining the question, certain tests, or circumstances, relevant for determination were laid down as under:-

'1. The entire or a massive majority of the share capital in the hands of the Government is a penetrating index indicating that it is an instrumentality or agent of the Government.

2. Financial resources of State being the chief funding source as it gives flavour of government agency or instrumentality.

3. Its monopoly status either conferred or protected by the State.

4. Domination in the composition of society or company by the representative or nominee of the Government may afford an indication that it is a state agency or instrumentality.

5. Functional character being governmental in essence and planery control residing in Government.

6. Prior history of the same activity having been carried on by Government and made over to the new body.

7. Sole element of authority or command.

8. The State, as defined in Article 12 may comprehend to include bodies created for the purpose of promoting the educational and economic interest of the people.

9. The combination of the State aid and the furnishing of an important public source may result in a conclusion that the operation should be classified as a State agency.

10. The various controls which are exercised by the State under the provisions of the different enactments such as Factories Act, Industries (Development and Regulation) Act are of special Significance.

11. The expression 'other authorities' in Article 12 must be given a board and liberal interpretation where constitutional fundamentals vital to maintenance of human rights are at stake and functional realism and not financial cosmetic must be diagnostic tool.

12. It is almost settled that for determining whether a juridical person is the authority, it is immaterial whether the same was created by statute or under statute.

13. The public nature of function, if impregnated with governmental character tied or entwined with government or fortified by some additional factor may render the corporation an instrumentality or agency of Government.

14. The definition of the expression 'the State' in Article 12 is however for the purposes of Part III and IV of the Constitution.'

18. Then on facts, it was found in para 27, that the Company is managed by the Directors nominated by the Government or financial institutions, in the year 1977-78, out of seven directors five were the nominees of the Government or Financial Corporation, in 1981-82 there was one director of the Kamani Group and rest were the nominees of the Government or the financial institutions, and so on. Thus the composition of the Board of Directors affords indication that it is the State agency or instrumentality. Then it was found, that it is financed by the various financial institutions, the amount of loan had been guaranteed by the State Government, and other financial institutions had also invested considerable fund in the share capital of the Company, and had 50% share capital. The Chairman and the Managing Director was of the Government. Thus, it was found, that the plenary control of the company resides with the Government. Then considering the provisions of Jaipur Metals & Electricals Ltd. (Acquisition of Shares) Ordinance 1986, it was found that the ate control is 'sufficiently deep and pervasive'. Thus, it was found that the Company was 'State' within the meaning of Article 12. In view of the factual position found in that case it is clear that the factual position in the present case is entirely different.

19. Then in Manmohan Singh Jaitla's case, Hon'ble the Supreme Court was considering the status of aided school, where the Drawing Teacher was terminated without enquiry in defiance of Section 3 of the Punjab Aided Schools (Security of Set vice) Act, and in para-8, which referring to decision of Ajay Hasia's case, it was noticed, that aided schools are receiving 95% of expenses by way of grant and the employees have received the statutory protection under the 1969 Act, and it was subject to the regulations made by the Education Department of the Union Territory of Chandigarh, and the appointment of Headmaster, for its validity, must had an approval of the Director of Public Instruction, it was held to be amenable to writ jurisdiction, as in the opinion of Hon'ble the Supreme Court, 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, and there also existed deep and pervasive control.

20. In All India Sainik Schools Employees' Association's case. Hon'ble the Supreme Court was considering the status of Sainik School Society registered under the Societies Registration act, 1860, and running Sainik Schools in different states. In para 7 of the judgment. Hon'ble the Supreme Court considered Ajay Hasia's case, from para-9 of Ramana's case, and quoted six tests laid down by Hon'ble the Supreme Court in Ramana's case, and applying those tests, in para-9 it was found that the entire funding is by the State Government and the Central Government, the overall control vests in the governmental authority. With this it was also noticed that the main object of the Society is to run schools and prepare students for the purpose of feeding the National Defence Academy defence of the country is one of the regal functions of the State, and thus it was held to be State. In my view, the considerations prevailing with Hon'ble the Supreme Court to hold the Sainik School Society to be 'State' as appearing from para -7 and 9, cannot be said to be existing in the present case.

21. In the case of Chairman, Schools of Buddhist Philosophy, the Central Institute of Buddhist Studies, Leh controlling the management of the School was a registered society under the Jammu & Kashmir Registration of Societies Act. From perusal of para 14 of the judgment, it is clear, that though the contention was raised the management society was not a 'State' under Article 12 and as such writ petition cannot be maintained, but then at the hearing the counsel for management conceded that the society was 'State' under Article 12 of the Constitution of India. It is again a different story that it is also found in the judgment that the Chairman of the Board of Management was Additional Secretary of the Government of India and the rules were amended with the approval of the Government of India. Thus indicates that there existed deep and pervasive control of the Government of India over the society.

22. Taking up the case of Banasthali Vidyapeeth's case. In this case the question was not as to whether Banasthali Vidyapeeth falls within the definition of 'State' under Article 12 of the Constitution, rather the controversy was, as to whether it falls within the expression 'non Governmental education institution' as defined in Section 2(p) of the Rajasthan Non Government Educational Institutions Act, 1989, and it was held, that since it was notified to be a Deemed University by notification dt. 25.10.1983, published in the official Gazette on 26.11.1986, the provisions of the Act becomes applicable to the Institution, and it is amenable to the control of the U.G.C. and does not remain to be non-Government Educational Institution within the meaning of Rajasthan Non Government Educational Institutions Act, 1989. Thus, this case has no bearing on the present controversy.

23. Then taking up the last case relied upon by the learned counsel for the petitioner being that of Master Vibhu Kapoor's case, a Full Bench judgment of Delhi High Court, wherein Delhi High Court was considering a case of the Council of Indian School Certificate Examination. It was noticed that it was established in the year 1958, and was registered under the Societies Registration Act. Then it was noticed that it was originally established by the University of Cambridge Local Examinations Syndicate, with the assistance of the Inter-State Board of Anglo-Indian Education, and was so constituted to secure suitable representation of Governments, responsible for schools, (which are affiliated to the Council) in their States Territories. Then in para 16 and 17, the rules and regulations or Articles were considered, and it was found, that two members in a society shall be nominated by the Government, or two Assessors (Observers) of the Government of India, whichever is preferred by that Government, that Director of Education/Public Instruction (or his deputy) of the State in which there are schools affiliated for the examinations conducted by the Society. Then in para 20 the question posed was '.....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.' Then it was observed, that there is no dispute that the function it performs, or the purpose of its existence, is a public function. Then in para 22 Article 41 was referred, and then in para 30 it was held, that the petitioner's case is to fall within the ambit of the rule enunciated in the latest decision of the Hon'ble Supreme Court in Ajay Hasia's case, if the petition is to succeed. Then various paras from Ajay Hasia's case were quoted. Then the judgment of Hon'ble the Supreme Court in Sabhajit Tewary v. Union of India, AIR 1975 SC 1329, was considered, and then in para 34 it was held, that the public nature and the function discharged by the Society is so impregnated with governmental character that the Society has to be regarded as an authority within the meaning of the term in Article 226 of the Constitution. It is discharging the public function of imparting education, as contemplated by Article 41 of the Constitution. It was held, that 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, but then, as declared by the Society, in its priced publication, that it has entered into an agreement 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 too discharge the public function or the governmental function of imparting education., It was also noticed that the rules and regulations of the society show governmental supervision, if not control. With this it was held that 'not only functionally but also structurally the first respondent is deeply impregnated with Government 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'. Thus, it was held to be amenable to the writ jurisdiction. In my view though to some extent, this judgment supports the petitioner, but then in the judgment, the functional aspect of the concerned society was considered, by altogether ignoring its structural aspect, and in my opinion, the consistent judgments of Hon'ble the Supreme Court, including that of Ajay Hasia's case, mainly stress on the structural aspect of the concerned.

24. I may now take up the judgment of Hon'ble the Supreme Court in Ajay Hasia's case.

25. In Ajay Hasia's case, the challenge was made before Hon'ble the Supreme Court under Article 32, to the validity of the admissions made to the Regional Engineering College, Srinagar for the academic year 1979-80. In that writ petition a preliminary objection was raised about maintainability of the writ petition, on the ground, that college was run by a society which is not a corporation created by a statute, but is a society registered under the Jammu & Kashmir Societies Registration act, 1898, and therefore, is not an 'authority' within the meaning of Article 12 of the Constitution, and no writ petition can be maintained against it, nor can any complaint be made that it has acted arbitrarily in the matter of granting admissions and violated the equality clause of the Constitution. In view of this preliminary objection, the precise question before Hon'ble the Supreme Court was, as to whether the society can be said to be 'State' within the meaning of Article 12, which defines the 'State' to include, interalia, the Government of India and the Government of each of the States and all local or other authorities within the territory of India, or under the control of the Government of India. Since the Society cannot be equated with the Government of India or the Government of any State, nor can it be said to be a local authority, and therefore, the question was, as to whether it comes within the expression 'other authorities' so as to fall within the definition of 'State'. In para 2 and 3 the origin and other relevant features of the Society were given as under:-

'2. The Regional Engineering College, Srinagar (hereinafter referred to as 'the College') is one of the fifteen engineering colleges in the country sponsored by the Government of India. The College is established and its administration and management are carried on by a Society registered under the Jammu and Kashmir Registration of Societies Act. 1898. The Memorandum of Association of the Society in Clause 3 sets out the objects for which the society is incorporated and they include amongst other things establishment of the college with a view to providing instruction and research in such branches of engineering and technology as the College may think fit and for the advancement of learning and knowledge in such branches; Vide Sub-clause (i). The Society is empowered by Clause 3, Sub-clause (ii) of the Memorandum of Association to make rules for the conduct of the affairs of the Society and to add to amend, vary or rescind them from time to time with the approval of the Government of Jammu and Kashmir State (hereinafter referred to as the 'State Government') and the Central Government, Clause 3, Sub- clause (iii) of the Memorandum of Association confers power on the Society to acquire and hold property in the name of the State Government. Sub-clause (v) of Clause 3 of the Memorandum of Association contemplates that monies for running the college would be provided by the State and Central Governments and Sub-clause (vi) requires the Society to deposit all monies credited to its fund in such banks or to invest them in such manner as the Society may, with the approval of the State Government decide. The accounts of the Society as certified by a duly appointed auditor are mandatorily required by Sub-clause a(ix) of Clause 3 of the Memorandum of Association to be forwarded annually to the State and Central Governments. Clause 6 of the Memorandum of Association empowers the State Government to appoint one or more persons to review the working and progress of the Society, or the college and to hold inquires into the affairs thereof and to make a report and on receipt of any such report, the State Government has power, with the approval of the Central Government, to take such action and issue such directions as it may consider necessary in respect of any of the matters dealt with in the report and the Society or the College, as the case may be, is bound to comply with such directions. There is a provision made in Clause 7 of the Memorandum of Association that in case the Society or the College is not functioning properly, the State Government will have the power to take over the administration and assets of the college with the prior approval of the Central Government. The founding members of the Society are enumerated in Clause 9 of the Memorandum of Association and they are the Chairman to be appointed by the State Government with the approval of the Central Government, two representatives of the State Government, one representative of the Central Government, two representatives of the All India Council for Technical Education to be nominated by the Northern Regional Committee, one representative of the University of Jammu and Kashmir, one non- official representative of each of the Punjab, Rajasthan, U.P. and Jammu & Kashmir State to be appointed by the respective governments in consultation with the Central Government and the Principal who shall also be the ex officio Secretary.

3. The Rules of the Society are also important as they throw light on the nature of the Society. Rules 3, Clause (i) reiterates the composition of the Society as set out in Clause 9 of the Memorandum of association and Clause (ii) of the Rule provides that the State and the Central Governments may be mutual consultation at any time appoint any other person or persons to be member or members of the Society. Rule 6 vests the general superintendence, direction and control o the affairs and its income and property in the governing body of the Society which is called the Board of Governors. Rule 7 lays down the constitution of the Board of Governors by providing that it shall consist of the Chief Minister of the State Government as Chairman and the following as members: Three nominees of the State Government, three nominees of the Central Government, one representative of the All India Council for Technical Education, Vice-Chancellor of the University of Jammu & Kashmir, two industrialists/technologists in the region to be nominated by the State Government, one nominee of the India Institute of Technology in the region, one nominee of the University Grants Commission, two representatives of the Faculty of the College and the Principal of the college as ex officio member-Secretary. The State Government is empowered by Rule 10 to remove any member of the Society other than a member representing the State or Central Government, from the membership of the Society with the approval of the Central Government. Clause (iv) of Rule 15 confers power on the Board to make bye-laws for admission of students to various courses and Clause (xiv) of that Rule empowers the Board to delegate to a committee or to the Chairman such of its powers fro the conduct of its business as it may deem fit, subject to the condition that the action taken by the committee or the Chairman shall be reported for confirmation at the next meeting of the Board. Clause (xv) of Rule 15 provides that the Board shall have power to consider and pass resolution on the annual report, the annual accounts and other financial estimates of the College, but the annual report and the annual accounts together with the resolution passed thereon are required to be submitted to the State and the Central Governments. The Society is empowered by Rule 24, Clause (i) to alter, extend, or abridge any purpose or purposes for which it is established, subject to the prior approval of the State and the Central Governments and Clause (ii) of Rule 24 provides that the Rules may be altered by a resolution passed by a majority of 2/3rd of the members present at the meeting of the Society, but such alteration shall be with the approval of the State and the Central Governments.'

26. Then considering the question as to how the expression 'other authorities' is required to be construed. Hon'ble Supreme Court in para 7 held as under:-

'7. While considering this question it is necessary to bear in mind that an authority falling within the expression 'other authorities' is by reason of its inclusion within the definition of 'State' in Article 12, subject to the same constitutional limitations as the government and is equally bound by the basic obligation to obey the constitutional mandate of the Fundamental Rights enshrined in Part III of the Constitution. We must therefore give such an interpretation to the expression 'other authorities' as will not stultify the operation and reach of the fundamental rights by enabling the government to its obligation in relation to the fundamental rights by setting up an authority to act as its instrumentality or agency for carrying out its functions. Where constitutional fundamentals vital to the maintenance of human rights are at stake, functional realism and not facial cosmetics must be the diagnostic tool, for constitutional law must seek the substance and not the form. Now it is obvious that the government may act through the instrumentality or agency of natural persons or it may employ the instrumentality or agency of juridical persons to carry out its functions. In the early, days when the governmental had limited functions, it could operate effectively through natural persons constituting its civil service and they were found adequate to discharge governmental functions which were of traditional vintage. But as the tasks of the government multiplied with the advent of the welfare State, it began to be increasingly felt that the framework of civil service was not sufficient to handle the new tasks which were often specialised and highly technical in character and which called for flexibility of approach and quick decision making. The inadequacy of the civil service to deal with these new problems came to be realised and it became necessary to forge a new instrumentality or administrative device for handling these new problems. It was in these circumstances and with a view to supplying this administrative need that the corporation came into being as the third arm of the government and over the years it has been increasingly utilised by the Government for setting up and running public enterprises and carrying out other public functions. Today with increasing assumption by the government of commercial ventures and economic projects, the corporation has become as effective legal contrivance in the hands of the government for carrying out its activities, for it is found that this legal facility of corporate instrument provides considerable flexibility and elasticity and facilitates proper and efficient management with professional skills and on business principles and it is blissfully free from 'departmental rigidity, slow motion procedure and hierarchy of officers.' The government in many of its commercial ventures and public enterprises is resorting to more and more frequently to this resourceful legal contrivance of a corporation because it has many practical advantages and at the same time does not involve the slightest diminution in its ownership and control of the undertaking. In such cases 'the true owner is the State the real operator is the State and the effective controllorate is the State and accountability for its actions to the community and to Parliament is of the State.' It is undoubtedly true that the corporations is a distant juristic entity with a corporate structure of its own and it carries on its functions on business principles with a certain amount of autonomy which is necessary as well as useful from the point of view of effective business management, but behind the formal ownership which is cast in the corporate mould, the reality is very much the deeply pervasive presence of the government. It is really the government which acts through the instrumentality or agency of the corporation and the juristic veil of corporate personality worn for the purpose of convenience of management and administration cannot be allowed to obliterate the true nature of the reality behind which is the government. Now it is obvious that if a corporation is an instrumentality or agency of the government, it must be subject to the same limitations in the field of constitutional law as the government itself, though in the eye of the law it would be a distinct and independent legal entity. If the government acting through its officers is subject to certain constitutional limitations, it must follow a fortiorari that the government acting through the instrumentality or agency of a corporation should equally be subject to the same limitations. If such a corporation were to be free from the basis obligation to obey the Fundamental Rights, it would lead to considerable erosion of the efficiency of the Fundamental Rights, for in that event the government would be enabled to override the fundamental rights by adopting the stratagem of carrying out its functions through the instrumentality or agency of a corporation, which retaining control over it. The Fundamental Rights would then be reduced to little more than an idle dream or a promise of unreality. It must be remembered that the Fundamental Rights are constitutional guarantees given to the people of India and are not merely paper hopes or fleeting promises and so long as they find a place in the Constitution, they should not be allowed to be emasculated in their application by a narrow and constricted judicial interpretation. The courts should be anxious to enlarge the scope and width of the Fundamental Rights by bringing within their sweep every authority which is an instrumentality or agency of the government or through the corporate personality of which the government is acting, so as to subject the government in all its myriad activities, whether through natural persons or through corporate entitles, to the basic obligation of the Fundamental Rights. The constitutional philosophy of a democratic socialist republic requires the government to undertake a multitude of socio-economic operations and the government, having regard to the practical advantages of functioning though the legal device of a corporation, embarks on myriad commercial and economic activities by resorting to the instrumentality or agency of a corporation, but this contrivance of carrying on such activities through a corporation cannot exonerate the government from implicit obedience to the Fundamental Rights. To use the corporate methodology is not to liberate the government from its basic obligation to respect the Fundamental Rights and not to override them. The mantle of a corporation may be adopted in order to free the government from the inevitable constraints of red tapism and show motion but by doing so, the government cannot be allowed to play truant with the basic human rights. Otherwise it would be the easiest thing for the government to assign to a plurality of corporations almost every State business such as Post and Telegraph, TV and Radio, Rail Road and Telephones in short every economic activity and thereby cheat the people of India out of the Fundamental Rights guaranteed to them. That would be a mockery of the Constitution and nothing short of treachery and breach of faith with the people of India, because, though apparently the corporation will be carrying out these functions, it will in truth and realty be the government which will be controlling the corporation and carrying out these functions through the instrumentality or agency or the corporation. We cannot by a process of judicial construction allow the Fundamental Rights to be rendered futile and meaningless and thereby wipe out Chapter III from the Constitution. That would be contrary to the constitutional faith of the post-Maneka Gandhi era. It is the Fundamental Rights which along with the Directive Principles constitute the life force of the Constitution and they must be quickened into effective action by meaningful and purposive interpretation. If a corporation is found to be a mere agency or surrogate of the government, 'in fact owned by the government, in truth controlled by the government and in effect an incarnation of the government.' the court, must not allow the enforcement of Fundamental Rights to be frustrated by taking the view that it is not the government and therefore not subject to the constitutional limitations. We are clearly of the view that where a corporation is an instrumentality or agency of the government, it must be held to be an 'authority' within the meaning of Article 12 and hence subject to be same basic obligation to obey the Fundamental Rights as the government.'.

27. Hon'ble the Supreme Court referred to earlier judgment of Ramanna D. Shetty v. International Airport Authority of India, 1979 (3) SCC 489, and other judgments, and then considered, as to whether the college was 'State' within the meaning of Article 12, and in para 15 it was held to be an instrumentality, or agency of the State, or the State Government, and therefore to be an 'authority' within the meaning of Article 12. Para 15 of the judgment reads as under:-

'15. It is in the light of this discussions that we must now proceed to examine whether the Society in the present case is an 'authority' falling within the definition of 'State' in Article 12. Is it an instrumentality or agency of the government? The answer must obviously be in the affirmative if we have regard to the Memorandum of Association and the Rules of the Society. The composition o the Society is dominated by the representatives appointed by the Central Government and the governments of Jammu and Kashmir, Punjab, Rajasthan and Uttar Pradesh with the approval of the Central Government. The monies required for running the College are provided entirely by the Central Government and the Government of Jammu & Kashmir and even if any other monies are to be received by the Society, it can be done only with the approval of the State and the Central Governments. The rules to be made by the Society are also required o have the prior approval of the State and the Central Governments and the accounts of the Society have also to be submitted to both the governments for their scrutiny and satisfaction. The Society is also to comply with all such directions as may be issued by the State Government with the approval of the Central Government is respect of any matters dealt with in the report of the Reviewing Committee. The control of the Stationed the Central Governments is indeed so deed and pervasive that no immovable property of the Society can be disposed of in any manner without the approval of both the Governments. The State and the Central Governments have even the power to appoint any other person or persons to be members of the Society and any member of the Society other than a member representing the State or the Central Government can be removed from the membership of the Society by the State Government with the approval of the Central Government. The Board of Governors, which is in charge of general superintendence, direction and control of the affairs of Society and of its income and property is also largely controlled by nominees of the State and the Central Governments. It will thus be seen that the State Government and by reason of the provision for approval, that Central Government also, have full control of the working of the Society and it would not be incorrect to say that the Society is merely a projection of the State and the Central Governments and to use the words of Ray, C.J. In Sukhdev Singh case, the voice is that of the State and the Central Governments and the hands are also of the State and the Central Governments. We must, therefore, hold that the Society is an instrumentality or agency of the State ad the Central Governments and it is an 'authority' within the meaning of Article 12.'

28. Learned counsel for the petitioner had laid great stress on para - 16 of the judgment. But then in my view, para 16 only lays down the consequences in the even of the concerned being found to be an 'authority' being the 'State' within the meaning of Article 12 of the Constitution. Since this aspect of the proposition is not in dispute, and as noticed above, the core question is as to whether respondent falls within the definition of the State under Article 12 of the Constitution. Obviously, if the answer is in affirmative, the consequences held in para 16 of the judgment will flow, and not otherwise if the answer is in negative.

29. Apart from Ajay Hasia's case, I may refer to another judgment of Hon'ble the Supreme Court, in Executive Committee of Vaish Degree College's case, relied upon by the learned counsel for the respondent, wherein, in para-9 it was held as under:-

'9. We would first deal with the important question, which has been the sheet-another of the arguments of the learned counsel for the respondent as also the main basis of the judgment of the Full Bench of the Allahabad High Court, as to whether or not the appellant Executive committee can be said to be a statutory body in the circumstances of the present case. It seems to us that before an institution can be a statutory body it must be created by or under the statute and owe its existence to a statute. This must be the primary thing which has got to be established. Here a distinction must be made between an institution which is not created by or under a statute but is governed by certain statutory provisions for the proper maintenance and administration of the institution. There have been a number of institutions which though no created by or under any statute have adopted certain statutory provisions, but that by itself is not, in our opinion, sufficient to clothe, the institution with a statutory character. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (AIR 1975 1331) at P. 1339) this Court clearly pointed out as to what constitutes a statutory body. In this connection my Lord A.N. Ray, C.J. observed as follows:-

'A company incorporated under the Companies Act is not created by the Companies Act but comes into existence in accordance with the provisions of the Act. It is not a statutory body because it is not created by the statute. It is a body created in accordance with the provisions of the statute.It is, therefore, clear that there is a well marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statute. In other words the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountainhead of its powers. The question in such case to be asked is, if the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without an reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body. The High Court, in our opinion, was in error in holding that merely because the Executive Committee followed certain statutory provisions of the University Act or the statutes made thereunder it must be deemed to be a statutory body. In fact the Full Bench of the High Court relied on three circumstances in order to hold that the Executive Committee was a statutory body, viz. (i) that it was affiliated to the Agra University which was established by the statute; (ii) that there were certain mandatory provisions in the Agra University Act which were binding on the Executive Committee; and (iii) that the Executive Committee was governed by the statutes framed by the Agra University. In our opinion, none of these factors would be sufficient to alter the character and nature of the Executive Committee and convert it into a full-fledged status having been registered under the Registration of Co-operative Societies Act and was a self-governed or an autonomous body. It was affiliated to the Agra University merely for the sake of convenience and mainly for the purpose that the courses of studies prevalent in the College may be recognised by the University.'

30. Thus, this judgment does separately take into account the aspects, as highlighted by the learned counsel for the petitioner in view of Article 12 of the Constitution.

31. I may then come to the most important judgment, relied upon by both the learned counsel, being Pradeep Kumar Biswas's case. Obviously, since out of the two judgments, rendered by the Bench consisting of seven Hon'ble Judges, the majority judgment is to prevail. In this case apart from considering the structural aspect, the functional aspect of the concerned, has also been considered by the Hon'ble Supreme Court, and in para 45 it was noticed, that the function of the Institute concerned was 'fundamental to the governance of the country.' In Vibhu Kapoor's case, merely because the body was discharging functions of governmental character, which the requirement is, that it should be established for discharging the function fundamental to the governance of the country.'

32. In Pradeep Kumar's case, Hon'ble the Supreme Court was considering the status of Council of Scientific and Industrial Research (CSIR). Hon'ble the Supreme Court considered all the previous judgments including those in Ajay Hasia's case, so also E.P. Royappa v. State of T.N. reported in, 1974 (4) SCC 3. The parameters for deciding as to when can a society, or body is said to fall within the term 'State' or 'other authority' within the meaning of Article 12 were laid down. The earlier judgment in Sabhajit Tewary v. Union of India (supra), was over-ruled. In para-8 the significance of Article 12 was noticed, rather emphasised in the following words:-

'..in the fact that it occurs in Part III of the Constitution which deals with fundamental rights. The various articles in Part III have placed responsibilities and obligations on the 'State' vis-a-vis the individual to ensure constitutional protection of the individual's rights against the State, including the right to equality under Article 14 and equality of opportunity in matters of public employment under Article 16 and most importantly, the right to enforce all or any of these fundamental rights against the 'State' as defined in Article 12 either under Article 32 by this Court or under Article 226 by the High Courts by issuance of writs or directions or orders'.

33. Therefore all the previous judgments, till then rendered, and having bearing on the controversy, so also laying down parameters were recapitulated and considered, including that of latest judgment in Mysore Paper Mills Ltd. v. Mysore Paper Mills Officers' Association, JT 2002 (1) SC 61, and in para 40 it was held as under:-

'10. The 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.'

34 Thereafter Hon'ble the Supreme Court proceeded to consider the factual aspect of CSIR, on the parameters laid down in para- 40, and it was noticed in para 42, that on 27.4.1940 the Board of Scientific and Industrial Research, and on 1.2.1941 the Industrial Research Utilisation Committee, were set up by the Department of Commerce, Government of India, with the broad objective of promoting industrial growth in the country, then on 14.11.1941 a resolution was passed by the Legislative Assembly and accepted by the Government of India to recommend to the Governor General in Council, that a fund called the Industrial Research Fund be constituted, for the purpose of fostering industrial development in this country and the provision be made in the budget for an annual grant of rupees ten lakhs to the fund for a period of five year. Thus, it is clear that it was established by the Department of Commerce of the Government of India, which the entire fund of the Government.

35. Then for the purpose of coordinating and exercising administrative control over the working of the two research bodies already set up by the Department of Commerce, and to oversee the proper utilization, by a resolution dt. 26.9.1942, the Government of India decided to set up a Council of Industrial Research on a permanent footing, which was a registered society under the registration of Societies Act, 1860 and pursuant thereto, on 12.3.1942, CSIR was duly registered. Thus, in the words of Hon'ble the Supreme Court 'unquestionably this shows that CSIR was 'created' by the Government to carry on in an organized manner what was being done earlier by the Department of Commerce of the Central Government in fact that two research bodies which were part of the Department of Commerce have since been subsumed in CSIR'. The functions of CSIR have been catalogues in para 44 and in para 48 the constitution of Governing Body as decided on 26.2.1942 and the present Rules and Regulations of 1999 were noticed in para-48 and 49 as under:-

'48. When the Government of India resolved to set up CSIR on 26.2.1942, it also decided that the Governing Body would consist of the following members;

(1) The Honourable Member of the Council of His Excellency the Governor-General in charge of the portfolio of Commerce (ex officio).

(2) A representative of the Commerce Department of the Government of India, appointed by the Government of India.

(3) A representative of the Finance Department of the Government of India, appointed by the Government of India.

(4) Two members of the Board of Scientific and Industrial Research elected by the said Board.

(5) Two members of the Industrial Research Utilisation Committee elected by the said Committee.

(6) The Director of Scientific and Industrial Research.

(7) One or more members to be nominated by the Government of India to represent interests not otherwise represented.

49. The present Rules and Regulations, 1999 of CSIR provide that:-

'(a) The Prime Minister of India shall be the ex officio President of the Society.

(b) The Minister in charge of ministry or department, dealing with the Council of Scientific and Industrial Research shall be the ex officio Vice President of the Society;

Provided that during any period when the Prime Minister is also such Minister, any period when the Prime Minister is also such Minister, any period when the Prime Minister is also such Minister, any person nominated in this behalf by the Prime Minister shall be the Vice-President,

(c) Minister in charge of Finance and Industry (ex officio).

(d) The members of the Governing Body.

(e) Chairman, Advisory Board.

(f) Any other person or persons appointed by the President. CSIR.' The Governing Body of the Society is constituted by the:

(a) Director General;

(b) Member Finance;

(c) Directors of two national laboratories;

(d) Two eminent Scientists/Technologists, one of whom shall be from academia;

(e) Heads of two scientific departments/agencies of the Government of India.'

36. Thus, it was noticed that the dominant role played by the Government of India is writ large. The Director General who is Ex Officio Secretary of the Society is appointed by the Government of India. The members of the Governing Body, who are not there as ex officio, are nominated by the President, and their membership can also be terminated by him, while the Prime Magistrate is the ex officio President of CSIR. The extent of control was noticed by Hon'ble the Superintendents in para 51 and 52, which read as under:-

'51. The control of the Government in CSIR is ubiquitous. The Governing Body is required to administer, direct and control the affairs and funds of the Society and shall, under Rule 43 have authority 'the exercise all the powers of the Society subject nevertheless in respect of expenditure to such limitations as the Government of India may from time to time impose'. The aspect of financial control by the Government is not limited to this and is considered separately. The Governing Body also has the power to frame, amend or repeal the bye-laws of CSIR but only with the sanction of the Government of India. Bye- law 44 of the 1942 Bye-laws had provided 'any alteration in the bye laws shall require the prior approval of the Governor-General-in-Council'.

52. Rule 41 of the present Rules provides that:

'The President may review/amend/vary any of the decisions of the Governing Body and pass such orders as considered necessary to be communicated to the Chairman of the Governing Body within a month of the decision of the Governing Body and such order shall be binding on the governing Body. The Chairman may also refer any question which in his opinion is of sufficient importance to justify such a reference for decision of the President, which shall be binding on the Governing Body.'

37. Then the financial aspect was considered by Hon'ble the Supreme Court in para-56 and 57 which are as under:-

'56. As already noted, the initial capital of Rs. 10 lakhs was made available by the Central Government. According to the statement handed up to the Court on behalf of CSIR the present financial position of CSIR is that at least 70% of the funds of CSIR are available from grants made by the Government of India. For example out of the total funds available to CSIR for the years 1998-99, 1999-2000,2000-01 of Rs. 1023.68 crores. Rs. 1136.69 crores and Rs. 1219.04 crores respectively, the Government of India has contributed Rs. 713.32 crores, Rs. 798.74 crores and Rs. 877.88 crores. A major portion of the balance of the funds available is generated from charges for rendering research and development works by CSIR for projects such as the Rajiv Gandhi Drinking Water Mission. Technology Mission on oilseeds and pulses and maize or grant-in-aid project from other government departments. Funds are also received by CSIR from sale proceeds of its products, publications, royalties etc. Funds are also received from investments but under Bye-law 6 of CSIR, funds of the Society may be invested only in such manner as prescribed by the Government of India. Some contributions are made by the State Government and to a small extent by 'individuals, institutions and other agencies'. The non-governmental contributions are a pittance compared to the massive governmental input.

57. As far as expenditure is concerned, under Bye-law 1 as it stands at present, the budget estimates of the Society are to be prepared by the Governing Body 'keeping in view the instructions' issued by the Government of India from time to time in this regard. Apart from an internal audit, the accounts of CSIR are required to be audited by the Controller and Auditor- General and placed before the table of both Houses of Parliament (Rule 69)'

38. Then the significant aspect as to what is to happen in the event of dissolution of CSIR, unlike the other registered societies which are governed by Section 14 of the Societies Registration Act, was considered in para 58, and it was noticed, that the members of CSIR have no say in the distribution of its assets. Then in para 63 it was held, that CSIR is State within the meaning of Article 12 of the Constitution.

39. As against this, in the present case, at the highest, the extent of grant received is only 20-25% for development purpose, and the Board of Management comprising of 16 persons has only three persons from the Government, being one nominee of the Chairman of the U.G.C. one nominee of the Government of India, and one nominee of the State Government, but then, the decision is by the majority. Thus, the Government of India, or the Government of Rajasthan, or the U.G.C. are not even having administrative or supervisory control, over the administration of the Institute, apart from the fact, that according to the respondents, the main source to financial aids are the donors, and not the Government, or any other agency of the Government, and the learned counsel for the petitioner has not been able to show it to be otherwise. So far the control, stressed upon and pointed out by the learned counsel for the petitioner, by reference to the provisions of the Act is concerned, in my view, a look at Section 3 shows, that thereby an institution, which is notified to be Deemed University, is to be deemed to be a University 'for the purpose of this Act', and all the provisions of the Act apply to such institution 'as if it were a University within the meaning Clause (f) of Section 2'. Then a look at the statement of objects and reasons, shows, that the Act was enacted to make provisions for coordination and standards in Universities, ad for that purpose established a University Grants Commission. Thus, whole object of the Act is to maintain standards in the University. It is in this sequence, that according to Section 12, it is the general duty of the Commission to take such steps, in consultation with the University, and other bodies concerned, as it may think fit 'for promotion and coordination of University education and for determination and maintenance of standards of teaching, examination, and research in Universities....'. Then under Section 13 the power of inspection is for ascertaining standards of teaching, examination and research and for ascertaining the financial needs of the University. Then according to Section M the consequences of the failure to comply with the recommendation of the Commission is, with-holding of the grant. So far Section 20 is concerned, that is for the U.G.C. that is to be guided by the directions on the question of policy relating to national purposes as may be given by the Central Government. Thus, the field of operation of control under the provisions of the Act, is very limited, rather it is for the purpose of maintaining standards of education, examination and research. So far as the structural aspect of the Society is concerned, the provisions of the Act has nothing to do with it, nor any of the provisions of the Act, in any manner effect the control and management of the Society, much less does it render the Society 'financially, functionally and administratively dominated by or under the control of the Government' as expected in para 27 of the judgment in Pradeep Kumar's case, much less does it render the control 'deed and pervasive', rather, to use the words of Hon'ble Supreme Court in Pradeep Kumar's case again 'the control is merely regulations whether under the statute or otherwise', and therefore, it does not serve to make the body a 'State' within the meaning of Article 12. So far functional part is concerned, again in my view, the society, to use the words of the majority judgment of Hon'ble Supreme Court in Pradeep Kumar's case, is not discharging 'Functions which can be said to be fundamental to the governance of the country.'

40. So far as Parayankandiyal Eravath's case is concerned. 1 may just gainfully quote the precise findings invoked by learned counsel, being rendered in para-80 of the judgment, which reads as under:-

'80. When an Act of Parliament or a State legislature provides that something shall be deemed to exist or some status shall be deemed to have been acquired, which would not have been so acquired or in existence but for the enactment, the court is bound to ascertain the purpose for which the fiction was created and the parties between whom the fiction was to operate, so that full effect may be given to the intention of the legislature and the purpose may be carried to its logical conclusion. (See. J.K. Cotton Spg. & Wvg. Mills Ltd. v. Union of India, American Home Products Corporation v. Mac Laboratories (P) Ltd.)

41. A perusal of the aforesaid finding does make it clear, that when a particular status is acquired by legal fiction, even in the words of Hon'ble the Supreme Court 'the Court is bound to ascertain the purposes for which the fiction was created and the parties between whom the fiction was to operate.' In my opinion, the fiction was created for the purpose of making the provisions of the Act applicable, and the parties between whom the fiction is to operate are the U.G.C. and the respondents, and by virtue of the fiction the respondents become entitle to confer certain degrees, and this is the only extent, that the fiction has some relation with the public at large, being its segment, constituting students, obtaining degrees, and nothing beyond that. Obviously, therefore, on the basis of this judgment, it cannot be said that on account of the fiction, contemplated by Section 3 of the Act, the respondent becomes an 'authority' within the meaning of Article 12 of the Constitution.

42. Thus, in my view, taken from any stand point, the respondent cannot be said to be falling even within the extended meaning of term 'State', as provided by Article 12 of the Constitution.

43. In that view of the matter, it cannot be said to be amenable to extra ordinary jurisdiction of this Court under Article 226.

44. Therefore, without going into the merits of the impugned orders, the writ petition is dismissed summarily.


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