Andhra HC (Pre-Telangana)
Prof. Dr. V. Ganeshan vs Central Institute Of English And ... on 7 February, 2000
Equivalent citations: 2000(2)ALD233, 2000(1)ALT519
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER
1. The petitioner in the instant writ petition challenges the office order dated 19th July, 1999 on the file of the second respondent/Vice-Chancellor, Central Institute of English and Foreign Languages, designating the third respondent herein as 'RECTOR' for a period of one year initially and delegating certain powers and duties of the Vice-Chancellor to him. The petitioner also challenges the office order dated 27th July, 1999 delegating certain further powers and duties to the third respondent. The impugned proceedings, according to the petitioner, are illegal, void, arbitrary and irrational. The proceedings are challenged on various grounds, which shall be dealt with at appropriate stage.
2. It would be necessary to notice the relevant facts before adverting to the questions that fall for consideration.
3. The second respondent herein issued an office order dated 19th July, 1999 designating the third respondent herein as 'RECTOR' for a period of one year initially. The order says that the third respondent has to perform the functions and discharge the duties of the RECTOR as per the powers and duties delegated:
(1) To have and to exercise such powers and duties or the Vice-Chancellor as may be delegated by the Vice-Chancellor from time to time.
(2) To assist the Vice-Chancellor in respect of matters as may be specified by the Vice-Chancellor for such a period as required during the tenure of the 'Vice-Chancellor; and (3) Such other powers within the parameters of Rule 28 of Memorandum of Association and Rules as may be found necessary in the larger interest of the institute.
4. The Vice-Chancellor directed that the third respondent will receive a monthly honorarium of Rs. 1,000/- per month for performing the additional duties.
5. This order is followed by another order dated 27th July, 1999 passed by the Vice-Chancel lor delegating certain powers and duties to the third respondent herein in exercise of the delegation of powers vested in the Vice-Chancel lor by virtue of Rule 28 of Memorandum of Association. The details of those powers and duties delegated to the third respondent will be noticed at a later stage.
6. It is the case of the petitioner that the second respondent has created the post of RECTOR, appointed the third respondent, vested him with almost all the powers of the Vice-Chancellor in purported exercise of delegation of power under Rule 28 of the Memorandum of Association. The petitioner's case precisely is that the Rule 28 of the Memorandum of Association enables the Officer or the Authority of the Institute to delegate their powers to any other officer or authority subject to the provisions of the Rules. There is no power in any authority or the officer to create any office or authority which does not exist under the frame work. Such an act creating a post is contrary to the Rules and opposed to the very concept of the delegation.
7. It is submitted that the post of RECTOR is a pivotal one and it is created under the respective University Acts functioning in the State. Such an important post can exist only if it is sanctioned and approved by the Central Government, and then provided for under the Rules. The second respondent in purported exercise of power under Rule 28 has no power or jurisdiction in creating the post of RECTOR and appointing the third respondent as RECTOR.
8. It is also submitted that the second respondent has chosen the third respondent as per his whims and fancies. There are as many as eight Professors in the Institute who are senior to the third respondent. It is submitted that by virtue of the office order, the third respondent is made to exercise vast powers of the Institute and next in position to the Vice-Chancellor, Such a position could not have been brought about even by the Board. It is stated that almost the entire administration and academic set up of the Institute was made subordinate to the third respondent under the impugned orders of the second respondent. The petitioner submits that having held the post of Director of the Institute for one year and looked after the office of the Vice-Chancellor in the absence of the incumbent, he is virtually relegated to a subordinate position to that of the third respondent who is admittedly eight places junior to him. These are the circumstances under which the present writ petition is filed questioning the impugned orders.
9. The Registrar of the Institute filed a detailed counter affidavit on behalf of the Institute and also on behalf of the second respondent, denying the material allegations and averments made in the affidavit filed in support of the writ petition. An objection with regard to the maintainability of the writ petition itself is raised in the counter affidavit. It is stated that the Institute is a society registered under the Public Societies Registration Act and the administration is governed by the Memorandum of Association, Rules and Bye-laws framed by the Society. The Society is not an instrumentality of the Central Government and as such, it is not a State under Article 12 of the Constitution of India. In nutshell, it is the case of respondents 1 and 2 that the writ petition itself is not maintainable. The activities and actions of the Institute are not susceptible to and amenable to be judicially reviewed by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
10. With regard to the merits, it is stated in the counter affidavit that the second respondent has only delegated some of his duties in exercise of power under Rule 28 to the third respondent herein. There is no creation of any post and appointment to the post as alleged by the petitioner. It is submitted that the third respondent herein is merely designated as RECTOR with no pay scale attached to the designation. It is conceded that there is no cadre post of Rector existing in the Institute. It is inter alia stated that it has become imperative that the Vice-Chancel lor is assisted by an equally competent Professor at the Institute in discharge of his administrative function in more cohesive, coherent and co-ordinated manner, particularly in the context of the Institute, emerging as an international center for various academic activities and in the context of multi and inter disciplinary statute of the Institute. It is submitted that in the context of extended and expanded administrative and academic activities of the Institute, the inexorable necessity to assist the Vice-Chancellor cannot be ignored. It is only under those circumstances, certain duties are delegated to the third respondent in addition to his normal duties as Professor at the Institute. Even the said delegation is not absolute, but subject to the control of the Vice-Chancel lor. It is the case of the respondents that a nomenclature has been given for the convenience of identification of the discharging duties by the third respondent herein. It is only a functional arrangement under which certain duties of the Vice-Chancellor are delegated. Certain duties required to be performed by the Vice-Chancellor under Rule 23(e) and (f) of the Rules, are delegated to the third respondent herein.
11. Such practice stated to be in vogue in prestigious Jawaharlal Nehru University, New Delhi, is pressed into service in support of their decision. It is stated that the JNU has been having at times two Rectors functioning at the same time with an agreed delegation of powers and the duties of the Vice-Chancellor. The present Vice-Chancellor of the JNU, New Delhi has co-opted one to three Rectors and there are chances that a 4th Rector is about to be nominated. The action of the second respondent in designating the third respondent as Rector and conferring certain of his powers is sought to be justified by contending that the person who is the object of delegation need be called something, need be named something, need be given a nomenclature. It is stated that the convention of giving designation to the employees of the Institute has been in practice for over the years. The nomenclature given does not denote any post, but signify a status of functioning of a transient nature. For instance, the office of Dean of Studies or Head of the Department now existing in the Institute is not a post but only a designation; a Professor or Reader can become Dean or HOD respectively.
12. The matter of designating the third respondent as Rector was placed before the Board on 19th July, 1999 and the same has been taken cognizance by the Board.
13. The petitioner herein is not made subordinate to the third respondent and no powers regarding disciplinary action required to be taken by Hie second respondent in respect of officers of the Institute, are delegated to the third respondent.
14. The counter affidavit filed by the third respondent contain more or less similar averments as the one found in the counter filed by respondents 1 and 2. It is inter alia, however, stated that an appeal is provided against the impugned action under the proviso to sub-clause (i) Rule 23 of the Memorandum of Association and Rules, and the petitioner failed to avail the alternative remedy. The writ petition deserves dismissal only on this ground. It is stated that the post of the Rector in the Institute except in the nomenclature cannot be equated to the Rector of another University on the basis of similarity of name as in the case of other Universities. In the case of the Institute, it is only a designation given for purposes of identification and address in the process of discharging allotted functions by the Vice-Chancellor to the Rector. Seniority is not the criteria for entrusting additional duties and responsibilities in exercise of delegation of powers under Rule 28 of the Rules.
15. The learned Counsel for the petitioner submitted that the entire action of the second respondent herein in nominating the third respondent as Rector is vitiated for more than one reason. It is submitted that Rule 28 of the Rules does not confer any such authority upon the Vice-Chancellor to nominate or designate a person of his choice as Rector of the Institute. It is also urged that practically, the Vice-Chancellor has delegated all of his essential functions to the third respondent herein. The said decision, according to the learned Counsel for the petitioner, is bad in law, arbitrary and irrational.
16. The learned Standing Counsel for the Institute raises preliminary objection as to the maintainability of the writ petition. According to the learned Standing Counsel, the institute is neither an authority under the control of the Government of India nor an instrumentality of the State for whatever purposes. The learned Standing Counsel further submits that even on merits, the impugned decision does not suffer from any legal infirmity requiring any interference of this Court.
17. The learned Counsel for the third respondent adopts the submissions made by the learned Standing Counsel.
18. The contention with regard to the maintainability of the writ petition may be taken up first. Before, adverting to the said question, it may be necessary to notice the broad features and the nature of the Organisation and set up of the Institution.
19. The Central Institute of English and Foreign Languages, Hyderabad is an Institute established and organised by the Ministry of Human Resource Development, Government of India. It is a registered body under the Public Societies Act. The objects for which the Society is established are:
(i) to provide for the study of English and Foreign Languages and their Literatures, to organise research in the teaching of the subjects, to train teachers, to undertake and provide facilities for advanced courses and to organise conferences, seminars etc.
(ii) to prepare suitable textbooks, reference books etc., at various levels;
(iii) to undertake and provide for the publication of journals and periodicals in furtherance of the aforesaid objects;
(iv) to provide instruction including correspondence and such other courses to such persons as are not members of the Institute, as it may determine;
(v) to take up extension activities, so as. to make the benefits of the work done by the Institute reach educational institutions through out the country;
(vi) to grant, subject to such conditions as the Institute may determine, diplomas or certificates to, and confer degrees and other academic distinctions (on the basis of examinations, evaluation or any other method of testing) on persons, and to withdraw any such diplomas, certificates, degrees or other academic distinctions for good and sufficient cause;
(vii) to confer honorary degrees or other distinctions in the manner prescribed by the Bye-laws.
20. These are the declared objects, for which the Society is established and brought into existence.
21. The Society is entitled to acquire and hold property provided that prior approval of the Central Government is obtained in the case of acquisition of immovable property. The Society admittedly receives all its monies from the Central Government and the University Grants Commission. However, it is also authorised to receive monies by way of grants, gifts, donations, benefactions, bequests or transfers. The Society is required to maintain proper accounts and other relevant records and prepare an annual statement of accounts including the balance sheet in such form as may be prescribed by the Central Government/University Grants Commission in consultation with the Comptroller and Auditor General of India; it is required to forward annually to the Central Government and the University Grants Commission the accounts of the Society as certified by the Comptroller and Auditor General of India or any other person appointed by him in that behalf. The Society cannot dispose of any of its immovable property in any manner whatsoever without the approval of the Central Government. The Central Government shall have the right to cause an inspection to be made by such person or persons as it may direct, of the Society or the Institute, its building, laboratories and equipment and also of examination, teaching and other work conducted or done by the Institute and to cause an inquiry to be made in like manner in respect of any matter connected with the administration or finances of the Institute. The Central Government may address the Chairman of the Society or the Vice-Chancellor of the Institute as the case may be with reference to the result of such inspection or inquiry, and the Chairman/ Vice-Chancellor shall communicate to the Governing Body the views of the Central Government with such advise as the Central Government may be pleased to offer upon the action to be taken thereon. The Central Government is entitled to issue directions as it may think fit and the Governing Body shall comply with such directions. The Central Government is clothed with power to annul any proceeding of the Institute which is not in conformity with the Rules and Bye-taws of the Society.
22. The Society consist of Chairman, Vice-Chancellor; Vice-Chancellor, Osmania University, Hyderabad; Vice-Chancellor, University of Hyderabad, Hyderabad; Three persons to represent the Central Government; Three persons to be nominated by the UGC; Two Professors of the Institute to be nominated by the Chairman by rotation in order to seniority; Two Readers of the Institute to be nominated by the Chairman by rotation in order of seniority; Two members of the teaching staff of the Institute other than Professors and Readers, to be nominated by the Chairman by rotation in order of seniority, One ex-student of the Institute to be nominated by the Chairman in consultation with the Vice-Chancellor; Not more than twelve persons to be nominated by the Central Government; Such other members of the Board as are not members of the Society.
23. The Chairman of the Society shall be appointed by the Central Government, and he shall hold the office for a term of three years. The appointment of the Vice-Chancellor shall be made by the Board with the approval of the Central Government. The emoluments of the Vice-Chancellor shall be such as may be determined by the Board with the approval of the Central Government from time to time.
24. The Society is not authorised to alter, extend or abridge any purpose or purposes for which the Institute is established without the approval of the Central Government.
25. It may be noticed that the Central Government in the Ministry of Education and Social Welfare in exercise of the powers conferred on it by Section 3 of the University Grants Commission Act, 1956 (for short 'the Act'), on the advice of the Commission, declared that the Central Institute of English and Foreign Languages, Hyderabad, an institute of higher education managed by the Central Institute of English and Foreign Languages, Hyderabad Society, shall be deemed to be a university for the purposes of the Act.
26. These are the broad features and characteristics of the Society and the Institute.
27. We have noticed the purpose and objects for which the Institution has come into existence. The deep and pervasive control of the Central Government even in the management of the Society and the Institute is writ large. The funds and finances are provided by the Central Government. The funds are required to be audited and certified by the Comptroller and Auditor General of India, and the same is to be forwarded annually to the Central Government. The Society cannot hold and acquire any property without prior approval of the Central Government, nor any immovable property of the Society can be disposed of without the approval of the Central Government. The membership of the Society predominantly consist of the statutory authorities and members nominated by the Central Government and the University Grants Commission. Three persons represent the Central Government in the Society apart from not more than twelve persons nominated by the Central Government. The Chairman of the Society is appointed by the Central Government and the Vice-Chairman is appointed by the Board with the prior approval of the Central Government. Such is the amplitude and extent of power conferred upon the Central Government. Clearly, the Central Government exercises deep and pervasive control.
28. The Institute acquired status of a deemed university. It is recognised to be an Institute of higher education managed by the Society. It is to be treated for all practical purposes as a University. Section 3 of the Act declares that an Institution of higher education when declared to be deemed to be a University for the purposes of the Act, all the provisions of the Act shall apply to such institution as if it were a University within the meaning of clause (f) of Section 2. Section 2(f) of the said Act in turn says that "University" means a University established or incorporated by or under the Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognised by the Commission in accordance with the regulations made in this behalf under this Act. Section 12 of the Act deals with the functions of the University Grants Commission, which says that "it shall be the general duty of the Commission to take, In consultation with the Universities or other bodies concerned, all such steps as it may think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities, and for the purpose of performing its functions under this Act." The Commission is clothed with the jurisdiction to do certain thinks including inquiry into the financial needs of the University and allocation and disbursement of funds etc., and recommend to any University the measures necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendation. Section 12-B of the Act prohibits the Central Government, the Commission, or any other organisation receiving any funds from the Central Government, from granting funds to a University, unless the Commission has, after satisfying itself as to such matters as may be prescribed, declared such University to be fit for receiving such grant. The University Grants Commission exercises such control over the Universities under the Provisions of the Act, and is entitled to exercise the same control as against the deemed universities also, as such deemed universities are also stand on the same footing as that ofthe Universities established under the Central or State Acts as the case may be. The University Grants Commission is even entitled to cause an inspection of any department or departments for the purpose of ascertaining the financial needs of the University or its standard of teaching, examination and research.
29. We have already noticed that the Institute of English and Foreign Languages confers degrees and other academic distinctions.
30. However, the learned Standing Counsel contends that the Institution is a Society registered under the Public Societies Registration Act, and has no characteristics of an authority. The learned Standing Counsel made an extreme submission that the Institute does not discharge any public duty.
31. The learned Counsel places reliance upon the decision ofthe Supreme Court in Smt. J. Tiwari v. Jawala Devi Vidya Martdir, , in which it is observed that "a private institution which is registered under the Societies Registration Act, 1860 cannot be held to be a public or statutory body even if the regulations of the University or the provisions of the Education Code framed by the State Government may be applicable to such institution." The question as to whether such institution is an instrumentality of the State has not arisen for consideration in that case. The observations if any made may have to be understood in the context of the facts. The learned Counsel would, however, places heavy reliance upon the well known decisions of the Supreme Court in Sabhajit Tewary v. Union of India, , Tekraj v. Union of India, and Chander Mohan Khanna v. NCERT, . The learned Counsel also places reliance upon two judgments of this Court in Balbir Thomas v, Centre of Cellular and Molecular Bilogy, and Administrative Staff College, Hyderabad v. D.P. Seshachaiam, 1989 (1) ALT 691 (DB). In Sabhajit Tewary's case (supra), the Council of Scientific and Industrial Research was held to be not an authority within the meaning of Article 12 of the Constitution. The Society does not have a statutory character like the Oil and Natural Gas Commission, or the Life' Insurance Corporation or Industrial Finance Corporation. The Supreme Court in Ramachandra Iyer v. Union of India, , distinguishing Sabhajit Tewary (supra), observed that "Much water has flown down the Yamuna since the dicta in Sabhajit Tewary case (supra) and conceding that it is not specifically overruled in later decision, its ratio is considerably watered down so as to be a decision confined to its own facts." The Supreme Court in R.D. Shelly v. International Airport Authority, and Ajay Hasai v. Khalid Mujib, , did not really follow the ratio laid down in Sabhajit Tewary's case (supra) and distinguished the said judgment by restricting it to "the facts and features of that case". In Som Prakash Rekhi v. Union of India, (1981) 1 SCC 449, the Supreme Court while adverting to the ratio in Sabhajit Tewary's case (supra), observed that "but on the facts and features present there the character of agency of Government was negatived..... Ray, CJ, rejected the argument that merely because the Prime Minister was the President or that the other members were appointed and removed by Government did not make the Society a 'State'. With great respect, we agree that in the absence of the other features elaborated in Airport Authority case (supra), the composition of the governing body alone may not be decisive. The laconic discussion and the limited ratio in Tewary hardly help either side here. (Emphasis of mine).
32. In Ajay Hasia (supra), the Supreme Court held that the Regional Engineering College, Srinagar, established, administered and managed by a Society registered under the Jammu and Kashmir Registration of Societies Act, 1893 was a 'State' within the meaning of Article 12. Extending the principle laid down by the Court in earlier eases, it was observed, "We may point out that it is immaterial for this purpose whether the corporation is created by a statute or under a statute. The test is whether it is instrumentality or agency of the Government and not as to how it is created. The enquiry has to be not as to how the juristic person is born but why it has been brought into existence. The Corporation may be a statutory corporation created by statute or it may be a Government company or a company formed under the Companies Act, 1956 or it may be a Society registered under the Societies Registration Act, 1860, or any other similar statute. Whatever may be it genetical origin, it would be an authority within the meaning of Article 12. If it is an a instrumentality or Agency of the Government and that have to be decided on proper assessment of the facts in the light of relevant factors. The concept of instrumentality or Agency of the Government is not limited to a corporation created by statute, but it is equally applicable to a company or Society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or Society is an instrumentality or agency of the Government, so as to come within the meaning of expression 'authority' in Article 12."
33. In Tekraj's case (supra), the Supreme Court came to the conclusion that the Institute of Constitutional and Parliamentary Studies (for short ICPS) registered under the Societies Registration Act, 1860 is not a 'State' within the meaning of Article 12 of the Constitution. The Supreme Court observed that "there are tests formulated by several cases of the Supreme Court to find out whether the Institution is 'State'. There cannot indeed be a strait-jacket formula. It is not necessary that all the tests should be satisfied for reaching the conclusion either for or against holding an institution to be 'State'. In a given case some of the features any emerge so boldly and prominently that a second view may not be possible." Having stated the law, the Supreme Court came to the conclusion that "the objects of the Society were not Governmental business but were certainly the aspects which were expected to equip Members of Parliament and the State Legislatures with the requisite knowledge and experience for better functioning." After making an analysis of the Memorandum of Association, the Supreme Court observed that "a broad picture of the matter has to betaken and a discerning mind has to be applied keeping the realities and human experiences in view so as to reach a reasonable conclusion. Having given our anxious consideration to the facts of the case, we are not in a position to hold that ICPS is either an agency or instrumentality of the State so as to come within the purview of 'other authorities' in Article 12 of the Constitution. We must say that ICPS is a case of its type-typical in many ways and the normal tests may perhaps not properly apply to test its character." It is thus absolutely clear that in view of the peculiar features of ICPS, the Supreme Court came to the conclusion that it was not an agency or instrumentality of the State within the meaning of Article 12 of the Constitution of India.
34. In Chander Mohan Khanna's case (supra), the Supreme Court observed that "Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression 'State'. A wide enlargement of the meaning must be tampered by a wise limitation. The State control does not render such bodies as 'State' under Article 12. The State control, however vast and pervasive, is not determinative. The financial contribution by the State is also not conclusive. The combination of State aid coupled with an unusual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the State may largely point out that the body is 'State'. If the Government operates behind a corporate veil, carrying out Governmental activity and Governmental functions of vital public importance, there may be little difficulty in identifying the body as 'State' within the meaning of Article 12 of the Constitution." After applying the said test, the Supreme Court came to the conclusion that the object of the NCERT as seen from the above analysis is to assist and advice the Ministry of Education and Social Welfare in the implementation of the Governmental policies and major programmes in the field of education particularly school education. The Supreme Court, accordingly held that such an Advisory Board cannot be held to be an authority within the meaning of Article 12 of the Constitution.
35. In Administrative Staff College of India, Hyderabad v. D.P. Seshachalam, (supra), a Division Bench of this Court held that Administrative Staff College of India, Hyderabad is not an instrumentality or agency of the State. It is observed that "the object of the Administrative Staff College, as already mentioned, is not Governmental function, but it was only meant to enrich and disseminate managemental knowledge and to improve the professional excellence of executives and administrators of its members and various public undertaking. As a matter of fact, the annual reports go to show that the College started centers for Education Policy and Management and for Public Systems and Policy, with a view to enrich and disseminate managemental knowledge and to improve professional excellence of Executives and Administrators. Taking a broad picture of the matter and applying a discerning mind keeping the realities, we think we are not in a position to hold that the Administrative Staff College is an instrumentality or an agency of the State so as to come within the purview of 'other authorities' under Article 12 of the Constitution."
36. In Balbir Thomas, (supra), a learned single Judge of this Court following the decision of the Supreme Court in Sabhajit Tewary (supra), declared that the Centre for Cellular and Molecular Biology (for short 'CCMB') is not an authority within the meaning of Article 12 of the Constitution.
Admittedly, CCMB is a branch of Council of Scientific and Industrial Research (for short 'CSIR'), and CSIR is held not to be an authority within the meaning of Article 12 of the Constitution. This Court had no option except to declare CCMB which is a branch of CSIR as not an instrumentality of the State, because the main body (CSIR) itself is held to be not an authority by the Supreme Court.
37. In WP No.24088 of 1998, dated 4th September, 1998, a learned single Judge of this Court held that the Institute of Public Enterprises is not an instrumentality or agency of the State, and thus not an authority for the purposes of Article 12 of the Constitution of India. The Court came to the conclusion that the said Institute does not discharge any public duty, and it is mainly a research institute. The learned Judge held that merely because it receives grants from the Government cannot make any difference.
38. For the purpose of deciding as to whether an institution is an authority for the purposes of Article 12, one must necessarily lift the veil to ascertain whether behind that veil is the face of an instrumentality or agency of the State. The tests laid down in various cases by the Supreme Court have to be applied to find out as to whether an institution behind the veil carries out a Governmental activity or Governmental functions of vital public importance. Such an institution could be a company registered under the Companies Act or registered under the Societies Registration Act, or may have come into existence under any statute. As observed in R.D. Shetty (supra), it is not possible to formulate an all inclusive or exhaustive test which would adequately answer this question. There is no cut and dried formula which would provide correct division of corporations into those which are instrumentalities or agencies of Government and those which are not. The Supreme Court broadly indicated six tests and factors which may convert a Corporation, a Government Company, a co-operative society and other registered society or body into a 'State' within the meaning of Article 12 of the Constitution:
(1) If the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.
(2) Where the financial assistance of the State is so much as to meet almost the entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with Governmental character.
(3) Whether the corporation enjoys monopoly status which is State conferred or State protected.
(4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality.
(5) If the functions of the corporation are of public importance and closely related to Governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.
(6) If a department of Government is transferred to a corporation, it would be a strong factor supporting the Inference that the corporation is an instrumentality or agency of Government.
39. In the very same judgment, it is observed that it is the aggregate or cumulative effect of all the relevant factors that is controlling.
40. Applying the said test, I have no doubt whatsoever in my mind to hold that the first respondent-Institute is an 'authority' for the purposes of Article 12 of the Constitution of India, for the reason that the first respondent-Institute is registered under the Public Societies Act with an object to grant diplomas or certificates to, and confer degrees and other academic distinctions. It is obvious that entire financial assistance is provided by the Central Government. The Central Government exercises deep and pervasive control.
41. That apart, it is conferred with status of a deemed university by the Central Government in purported exercise of power under Section 3 of the Act, by virtue of which all the provisions of the Act are made applicable to the institution. Even the University Grants Commission exercises control and regulates the activity of the Institute. The Institute discharges public duties. One of its function is to confer degrees and diplomas. Thus, it imparts education at higher level in English and Foreign languages. Obviously, those degrees and diplomas are recognised by virtue of its deemed University status. Obviously, the University Grants Commission is entitled to insist upon such conditions as are appropriate to ensure the education of requisite standard. If, therefore, what is discharged by the institution, is a public duty that requires, to act fairly. In such a case, it will be subject to Article 41. In Shri Anandi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Samarak Trust v. V.R. Radani, , it is held that "the term 'authority' used in Article 226, the context must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Court to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words 'any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied."
42. In Unni Krishncm, J.P. v. State of A.P., , a Constitution Bench of the Supreme Court observed that "the emphasis in this case is as to the nature of duty imposed on the body. It requires to be observed that the meaning of authority under Article 226 came to be laid down distinguishing the same term from Article 12. Inspite of it, if the emphasis is on the nature of duty on the same principle it has to be held that these educational institutions discharge public duties. Irrespective of the educational instilutions receiving aid it should be held that it is a public duty. The absence of aid does not detract from the nature of duty."
43. Thus, even if the institute is not an instrumentality for the purposes of Article 12, a writ petition under Article 226 of the Constitution of India would lie against it, as the words "any person or authority" used in Article 226 are not to be confined only to statutory authorities and instrumentalities of the State. The words may cover any other person or body performing public duty.
44. Thus, I have no hesitation to reject the contention put forth by the learned Standing Counsel about the maintainability of the writ petition.
45. The Institute cannot avoid legal audit by this Court. Its decisions are amenable to be tested on the touchstone of public law principles.
46. The second question relates to the validity and legality of the decision taken by the second respondent, delegating his powers to the third respondent herein and designating the third respondent as RECTOR for a period of one year initially. The proceedings dated 19th July, 1999 primarily relate to designation of the third respondent as RECTOR. It says that the third respondent has to perform the functions and discharge the duties of the Reclor as per the powers and duties delegated, mentioned therein; to have and to exercise special powers and duties of the Vice-Chancellor as may be delegated by the Vice-Chancellor and to assist the Vice-Chancellor in respect of matters as may be specified by the Vice-Chancellor for such a period as required during the tenure of the Vice-Chancellor, and such other powers within the parameters of Rule 28 of the Memorandum of Association. The immediate question that would arise for consideration is as to whether the second respondent has any power at all to designate one of the Professors as Rector. Admittedly, there is no post of Rector in the Institute. The decision itself is stated to have been taken "in exercise of the delegation of powers vested in the Vice-Chancellor by virtue of the Provisions of Rule 28 of the Memorandum of Association and Rules". Rule 28 of the Rules does not speak of any power. Rule 28 merely enables any officer or authority of the Institute to delegate power to any other officer or authority or persons under their respective control. It may be appropriate to have a look at Rule 28 of the Rules:
28. Delegation of Powers:
Subject to the provisions of these Rules, any officer or authority of the Institute may delegate his or its powers to any other officer or authority or persons under their respective control and subject to the conditions that the overall responsibility for exercise of the power so delegated shall continue to rest in the officer or authority delegating such power.
47. The Vice-Chancellor being an officer of the Institute can delegate his powers to any other officer or the authority or person under his control. But the same shall be subject to the other provisions of the Rules, and further subject to the conditions that the overall responsibility shall always rest with the Vice-Chancellor. Rule 28 by itself does not confer any power upon the Vice-Chancellor to designate any officer or authority or person as Rector. It is true, the action of the Vice-Chancellor in the instant case strictly may not amount to creating any post as such. But, there is no power as such vested in the Vice-Chancellor for conferring any such designations. In the counter affidavit filed by the Institute, an attempt is made to submit that Rule 28 to be read with Rule 23(e) to (g) would give such power to the Vice-Chancellor. Rule 23 speaks about the role of the Vice-Chancellor. The Vice-Chancellor is the principal academic and executive officer of the Institute and responsible for the proper administration of the Institute and for imparting of instruction and maintenance of discipline. He is the ex-officio chairman of the Board, the Academic Council and the Finance Committee. He is entitled to be present at and to address any meeting of any authority and to vote the reat. It is the duty of the Vice-Chancellor to see that the provisions of the Memorandum of Association, the Rules and Bye-laws are duly observed and he shall have all powers necessary for that purpose. He shall be responsible for the proper functioning of the institute, and for that purpose, he shall exercise powers generally even of a head of department.
48. Does it mean that the Vice-Chancellor can delegate all his powers to any other officer or authority? Can essential functions be delegated to any officer or authority? It is well settled in law that essential functions which are required to be performed by an authority can never be delegated. The power given to the Vice-Chancellor and other officers or authorities under Rule 28 itself is limited and structured by the Rule itself. The delegation if any is subject to the provisions of the Rules. The Vice-Chancellor of the University enjoys pre-eminent position. He is the principal academic and executive officer of the University. He has to play the most significant role "as the leader of the University system both in the executive and academic wings". He functions as a "bridge" between the executive and the academic wings of the university and as he is the head of both these wings, he is both a "teacher" and an "administrator". (Report of the UGC Committee towards New Educational Management, 1990).
49. The Report of the UGC Committee towards New Educational Management, 1990 specifically states that the Vice-Chancellor's power and duties should commensurate with his status and such power and duty should include among other things to ensure that the provisions of the Act, Statutes, Ordinances and Regulations are fully observed; To delegate his powers for day-to-day work to the Pro-Vice-Chancel!or(s), Deans, Heads of the Departments and other officers who should act on the basis of clear rules laid down in this regard.
50. The Vice-Chancellor is expected to proceed both with the administration and academic leadership with dynamism and vision. He enjoys a unique and pivotal position in the system. Rule 28 of the said Rules is to be understood and interpreted in that background. There is no difficulty whatsoever to hold that the Vice-Chancel lor can never delegate his essential functions. He can only delegate such of his powers for day-to-day work to one of those officers or authorities or persons depending upon the exigencies of the situation. The Vice-Chancellor cannot delegate his powers conferred upon him under Rule 23(e) to (g). They are the functions to be discharged only by the Vice-Chancel lor. It is true, his responsibility for the proper functioning of the Institute may include variety of incidental and routine duties. Such duties alone can be delegated.
51. But, in the instant case, the Vice-Chancellor has delegated almost all of his powers authorising the third respondent to look after the Institute whenever he is away from the head quarters. The third respondent is made as a special invitee at the meetings of the statutory bodies. The Rules confer such privilege only upon the Vice-Chanceltor since he is the head of both the executive and academic bodies. The third respondent is authorised to oversee "all matters relating to Students Affairs, Hostels, Guest House, Meeting Cell, Legal Cell, Health Centre, Works, Security, Ground and Gardens etc., and Maintenance of the Campus". He is made the leave sanctioning authority in case of Group 'A' Officers and Faculty excluding the two Deans, the Registrar and the Head of Departments. In my considered opinion, the functions assigned to the third respondent cannot be described or characterised as day-to-day functions. The Vice-Chancellor is entitled to participate and address any meeting of the statutory body, since he happens to be the leader of the executive as well as the academic wings of the Institute. By no stretch of imagination, such power of his could have been delegated by making the third respondent as a special invitee at the meetings of the statutory bodies. The Vice-Chancellor in the instant case has undoubtedly delegated his essential functions.
52. It is the duty of the Registrar of the University to arrange for and superintend the examination of the Institute; to safeguard and maintain the buildings, gardens, office, canteen, cars, and other properties of the Institute. The powers and duties that are specifically vested in the Registrar relating to maintenance of buildings, gardens, etc., and to manage the property of the Institute are sought to be assigned to the third respondent herein by the Vice-Chancellor under the guise of delegation ofhis powers. Such a course is not permissible in law.
53. It is strenuously contended by the learned Standing Counsel as well as the learned Counsel for the third respondent that the Vice-Chancellor has not created any post of Rector. The third respondent is merely designated as Rector. He is merely asked to look after the day-to-day work of the Institute. I find it very difficult to accept this submission. The functions and duties that are now entrusted to the third respondent are already noticed. It is not as if some functions relating to day-to-day work of Vice-Chancellor are sought to be delegated to the third respondent due to exigencies of the situation. The Vice-Chancellor designates the third respondent as Rector for a period of one year initially to perform the functions and discharge the duties of the Rector, Rector is not one of the Officers or authorities under the Rules. There are no such powers and functions to be discharged by the Rector. The third respondent is given monthly honorarium of Rs.1,000/- for performing the additional duties. In reality, the Vice-Chancellor appointed the third respondent as Rector for a period of one year and conferred upon him such essential functions which may have to be discharged only by the Vice-Chancellor. A look at the whole issue by lifting the veil would make it abundantly clear that it is not a case of mere designation and entrustment of day-today duties of the Vice-Chancellor due to some exigencies of the situation. Even the period for which the third respondent would continue to be designated as Rector is mentioned.
54. For the aforesaid reasons, I hold that the Vice-Chancellor of the Institute has no authority or jurisdiction to designate any officer or authority as Rector for a specific period and direct such officer or authority to discharge the duties of the Rector. The office of Rector is neither one of the recognised offices nor the authority under the Rules. Rule 28 of the Rules itselfdoes not cloth the Vice-Chancel lor with any power to designate a person or an officer of his choice as Rector. The Vice-Chancellor under the impugned order dated 27th July, 1999 conferred vast power and entrusted duties to the third respondent herein which are essentially required to be performed by the Vice-Chancellor himself. The delegation is not of day-today functions. Such essential functions cannot be delegated.
55. It is to be noticed that some of the functions that are entrusted to the third respondent referred to hereinabove are required to be performed only by the Registrar and those functions could not have been entrusted by the Vice-Chancellor to the third respondent. It is not as if the Vice-Chancellor can delegate the functions of the Registrar also to the third respondent. Conferment of such power and entrustment of duties of the Registrar to the third respondent herein is contrary to the Rules and ultra vires Rule 28 of the Rules.
About alternative remedy.
57. No other point is urged.
58. For the aforesaid reasons, the impugned proceedings are declared void and non est. The writ petition is accordingly allowed with costs, quantified at Rs.1,000/-.