Gujarat High Court
J M Desai (Retd.) vs Director on 26 September, 2017
Author: Biren Vaishnav
Bench: Akil Kureshi, Biren Vaishnav
C/LPA/1344/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1344 of 2015
In SPECIAL CIVIL APPLICATION NO. 4659 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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J M DESAI (RETD.)....Appellant(s)
Versus
DIRECTOR, CEPT & 4....Respondent(s)
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Appearance:
PARTY-IN-PERSON, ADVOCATE for the Appellant(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 5
MR NIRAL R MEHTA, ADVOCATE for the Respondent(s) No. 3
MRS NISHA M PARIKH, ADVOCATE for the Respondent(s) No. 4
MS ANUJA S NANAVATI, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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HC-NIC Page 1 of 35 Created On Sun Oct 01 18:39:28 IST 2017
C/LPA/1344/2015 CAV JUDGMENT
Date : 26/09/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV)
1. The original petitioner - party-in-person, Col. J.M. Desai (Retd.) - appellant herein is in appeal, challenging the judgement of the learned Single Judge dated 22.09.2015.
2. The appeal arises in the following factual background:
2.1 The appellant retired from the Indian Army on 30.06.1992. After retirement, he was appointed as the Registrar of the Center for Environment Planning and Technology ('CEPT' for short). He retired from CEPT in July 2002. Disputes arose with regard to his entitlement of pay and other monetary benefits. According to the appellant, he was not paid certain benefits such as leave encashment, retirement gratuity etc. This gave rise to the appellant filing a petition before this Court. The CEPT appeared and filed its reply. Apart from a preliminary objection, the claims of the appellant-petitioner were contested on merit. The Learned Single Judge, by the judgement under challenge, dismissed the petition.
2.2 CEPT raised a preliminary objection regarding the maintainability of the petition. According to CEPT, it was an autonomous academic institution. It was registered under the Societies Registration Act, 1869 and under the Bombay Public Trusts Act, 1950. It was accorded the status of Scientific and Industrial Research Organisation by the Ministry of Science Page 2 of 35 HC-NIC Page 2 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT and Technology, Government of India.
2.3 The learned Single Judge while dismissing the petition on the ground that it involved disputed question of facts, did not go into the issue as regards the maintainability of a writ petition against CEPT. The learned Single Judge in his order observed as under :
"8. I have given my thoughtful consideration to all the relevant aspects of the matter and have reached to the conclusion that there are many disputed questions of fact involved in this petition. I am not going into the issue as regards the maintainability of a writ-application against the CEPT, but it is very difficult to arrive at a particular figure due and payable to the petitioner. It appears that CEPT is relying somewhat on their own policy decisions, for example according to the CEPT, there is no policy to provide any medical reimbursement. It is also very clear that all these issues were raised by the petitioner only after retiring from the CEPT."
2.4 Under this brief factual scenario the petitioner- appellant, who appeared as Party-In-Person is before us in the appeal.
3. We are not in agreement with the view of the learned Single Judge. If the writ petition was maintainable, the Court would have to decide if there was any shortfall in the payment made to the petitioner by CEPT by way of service benefits or post retirement benefits. The question whether we can hold CEPT as a State within the meaning of Article 12 of the Constitution of India becomes significant. We, therefore, requested Shri Desai, party-in-person to address us on the Page 3 of 35 HC-NIC Page 3 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT issue of maintainability of the petition, in view of the preliminary objection which the CEPT had taken in its reply, particularly, when such an issue was raised before the learned Single Judge and no decision was rendered on such a question.
4. Party-in-person invited our attention to the averments in the petition to support his contention that CEPT was a "State" within the meaning of Article 12 of the Constitution of India. According to Shri Desai, party-in-person, CEPT was a technical institution as defined under the provisions of All India Council of Technical Education Act, 1987. That the Institute was controlled by the Central Government. It was his further case that the institution received 100% of admissible expenditure grant allocated by the Ministry of Human Resource Development, Union of India. The Governing Council of the institution had 11 members, of which 5 members were required to be nominated as stipulated in the Constitution.
4.1 Reliance was placed on a letter dated 16.4.1977 at Annexure A11 (page 127) of the Ministry of Education and Social Welfare. The letter indicates that pursuant to some discussions held, the Central Government would assist the Institute for the Post Graduate courses in Town Planning in accordance with the norms laid down by the All India Council for Technical Education (AICTE for short). The letter further states that the Institute would be eligible for 100% central assistance for recurring expenditure in accordance with the norms laid down by the Council.
Page 4 of 35HC-NIC Page 4 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT 4.2 According to party-in-person, Col. Desai, CEPT was a sponsored non- profit organisation of the Ahmedabad Education Society. It had under its umbrella various educational institutions/four constituent schools offering post graduate programmes in Architecture, Interior Design, Construction Technology etc. It was an autonomous academic institution regulated by a statutory authority i.e. AICTE. With effect from 12.04.2005, it had been made a University by an Act of State Legislative Assembly. According to Shri Desai, therefore, CEPT (now a University) and constituent schools under it are "State" within the meaning of Article 12 of the Constitution of India for the following reasons:
(a) That the Institute receives 100% grant in aid from the central/state governments for post graduate/under graduate programmes;
(b) It performs public functions, namely it is engaged in imparting technical education for higher learning;
(c) Various government projects are entrusted to CEPT and constituent schools;
(d) There is control of the government inasmuch as the pay and allowances of the faculty and the staff is based on the various pay commission recommendations announced by the government for time to time and such pay and other financial benefits are released from the grants in aid received from the Central/State government.Page 5 of 35
HC-NIC Page 5 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT 4.3 Shri Desai, party-in-person invited our attention to the judgement of the Supreme court in the case of K.K. Saksena vs. International Commission on Irrigation and Drainage and others reported in (2015) 4 SCC 670. He took us to various paragraphs of the judgement to contend that it is well settled through the judgement of the Constitution Bench in the case of Ajay Hasia and Others vs. Khalid Mujib Sehravardi and Others (1981) 1 SCC 782 that if there is deep and pervasive control of the State and financial assistance of the State is so much, as to meet the almost entire expenditure, the particular authority can be termed as a 'State' or 'Other Authority' within the meaning of Article 12 of the Constitution of India. Shri Desai further invited our attention to paragraph 40 reproduced in the aforesaid judgement in reference to the case of Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology and Others reported in (2002) 5 SCC 111. He emphasized the fact that if a body falls within any one of the tests laid out in the case of Ajay Hasia (supra), it must be considered to be a 'State' within the meaning of Article 12 of the Constitution.
4.4 Shri Desai further submitted that even otherwise the institute carried out the activity of imparting education and the nature of duty, therefore, was public duty in discharge of public functions and in light of the judgement in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others vs. V.R. Rudani and Others reported in (1989) 2 SCC 691 a writ petition, seeking a writ of mandamus against such Page 6 of 35 HC-NIC Page 6 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT institution was maintainable.
5. Mr. Saurabh Mehta, learned advocate for the CEPT invited our attention to the affidavit-in-reply filed in the petition before the learned Single Judge. He contended that the Institute operated as an autonomous academic institution. It was free to develop its own academic programmes and award its own diplomas at the end of various programmes based on the approval of the statutory regulatory body namely AICTE. He pointed out that the Institute had now become a University w.e.f 12.04.2005. He also stated that CEPT receives 100% grant from the AICTE and it is a grant in aid institution and therefore the employees of the schools thereunder cannot be termed as Civil Servants.
5.1 Mr. Mehta learned advocate for the Institute in support of his contention that CEPT is not a State within the meaning of Article 12 of the Constitution, relied on a judgement of this Court in the case of (Dr.) C.A. Shah vs. Gujarat Cancer & Research Institute reported in 1992(2) GLH 38. According to Mr. Mehta, a society registered under the Societies Registration Act, 1860 and an Institute so registered under the Bombay Public Trusts Act,1950 cannot be held to be 'State' or 'Other Authority' as envisaged under Article 12 of the Constitution of India. He further relied on a judgment in the case of Indian Institute of Management vs. Ukakant Shrivastava reported in 2002(1) GLH 330. In the case so relied upon, the Indian Institute of Management which was a society registered under the Societies Registration Act, 1860 was held not to be a "State" or an instrumentality of "State" and therefore petition under Article 226 filed against the Page 7 of 35 HC-NIC Page 7 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT institution was held not maintainable.
5.2 Mr Saurabh Mehta also extensively relied on the judgement in the case of K K Saksena vs International Commission on Irrigation and Drainage reported in (2015) 4 SCC 670. According to Shri Mehta since CEPT was not a "State" within the meaning of Article 12 of the Constitution Of India, no writ under Article 226 of the Constitution would lie against the Institute.
6. Referring to the judgement in the case of Indian Institute of Management (supra), Shri. Desai submitted that the judgement in the said case was a case dealing with disciplinary case and therefore not applicable to the facts on hand. Moreover, on facts, the court in the aforesaid case held that since the expenditure was being met from internally generated funds, the Institute was not held to be a "State" within the meaning of Article 12 of the Constitution. According to Shri Desai, therefore, this judgement in the facts of the present case would not be of any assistance to the court in deciding the fate of CEPT being a "State" within the meaning of Article 12 of the Constitution.
6.1 Shri Desai while, again on the other hand referred to the judgement in the case of K.K.Saksena (supra) drawing our attention to various paragraphs in the case. According to him, the principles laid down in the case of Ajay Hasia (supra) are not rigid; each case will have to be considered on the basis of cumulative facts and when there are facts available that the body is financially, functionally and administratively Page 8 of 35 HC-NIC Page 8 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT dominated by or under the control of the government, the Institute being such a body will have to be held to be a "State".
7. Before we examine the issue, whether CEPT can or cannot be held to be a "State", being an "Other Authority"
within the meaning of Article 12 of the Constitution Of India, a reference to the judgements relied upon by both the parties need to be seen.
7.1 Ajay Hasia's (supra) case was a case where a petition was filed under Article 32 of the Constitution Of India challenging the validity of the admissions made in the Regional Engineering College, Srinagar. The College was established and its administration was carried by a Society registered under the Jammu and Kashmir Registration Of Societies Act, 1898. The Supreme Court had the occasion to peruse, on the records of the case, the Memorandum of Association and the Rules of the Society. Analysing various clauses of the Memorandum indicated that the College was established with a view to advancing and providing instruction and research in the branch of Engineering and Research. The conduct of affairs of the Society was through the Rules which were to be approved by the Government of Jammu and Kashmir. Monies to run the College were to be provided by the Government and the deposits could be made as approved by the State Government. The State Government could appoint any person to review the working and progress of the Society or the College and hold inquiries and to make a report and take action on such report after the approval of the Central Government. Once such directions were issued by the Page 9 of 35 HC-NIC Page 9 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT Central Government the College was bound to comply with the said directions. There was a provision in the Memorandum that in case the Society or the College was not functioning properly, the State Government would have the power to take over the functioning and assets of the College. The founding members of the College were to be appointed by the State with the approval of the Central Government. The other members of the Society were representatives of the AICTE, one from the University of Jammu and Kashmir, one non- official representative each from the States of Uttar Pradesh, Punjab, Rajasthan and Jammu and Kashmir.
7.2 In the case of Ajay Hasia (supra), the Supreme Court also had the benefit of perusing the Rules, which threw light on the nature of the Society. According to the Rules, the Board of Governors shall consist of the Chief Minister of the State Government as the Chairman and the Members were three each nominated by the State Government, of the Central Government, one representative of AICTE etc. The State Government was empowered to remove any Member of the Society other than a Member representing the State Government or the Central Government.
7.3 Based on such facts, the Supreme Court proceeded to consider the preliminary objection raised on behalf of the Respondents against the maintainability of the petition. It then, with approval laid out the tests to determine when a Corporation or an Institution can be said to be an agency or instrumentality of the Government .The relevant tests gathered from the decision in the case of R.D.Shetty vs. Page 10 of 35 HC-NIC Page 10 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT International Airport Authority of India reported in (1979) 3 SCC 489 were reproduced. The same for our purposes are as under:
"9. The tests for determining as to when a corporation can be said to be a instrumentality or agency of Government may now be called out from the judgment in the International Airport Authority's case. These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression "other authorities", it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the International Airport Authority's case as follows (1) One thing is clear that if the entire share capital of the corporation is held by Government it would go a long 97 way towards indicating that the corporation is an instrumentality or agency of Government. (SCC p. 507, para 14) (2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (SCC p. 508, para 15) (3) It may also be a relevant factor...
whether the corporation enjoys monopoly status which is State conferred or State protected.(SCC p. 508 para 15) (4) Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality. (SCC p. 508 para 15) (5) If the functions of the corporation of Page 11 of 35 HC-NIC Page 11 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT 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.
(SCC p. 509 para 16)
(6) "Specifically, if a department of
Government is transferred to a corporation, it would be a strong factor supportive of this inference" of the corporation being an instrumentality or agency of Government.
If on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of government, it would, as pointed out in the International Airport Authority case, be an 'authority' and, therefore, 'State' within the meaning of the expression in Article 12."
7.4 The Supreme Court, in the case of Ajay Hasia (supra), based on these tests, found that having regard to the Memorandum and the Rules of the Society, it was found that the Society was dominated by representatives of the Central Government and the State Governments. The monies were received from the Central Government and even if monies were to be received it could be done only with the prior approval of the State Government and the Central Government. The Rules to be made are to have prior approval of the Central and the State Government. The Society was bound to comply with the directions as may be issued by the State Government with the approval of the State Government. The Government had the power to appoint and remove Members of the Society. The Court therefore found that the control of the State and the Central Government was indeed so deep and pervasive that no immovable property could be disposed of in any manner without the approval of both the Page 12 of 35 HC-NIC Page 12 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT Governments. In such facts, the Supreme Court held that since the Society was largely controlled by the nominees of the State and the Central Government, the Society had the voice and the hands of the Central and the State Government and therefore is an instrumentality or agency of the State and therefore an "authority" within the meaning of Article 12 of the Constitution Of India.
7.5 In the case of Pradeep Kumar Biswas (supra), the Constitution Bench of the Supreme Court was called upon to reconsider the judgement in the case of Sabhajit Tewary vs Union Of India (1975) 1 SCC 485. In such case CSIR, was held to be not an "authority" within the meaning of Article 12 of the Constitution Of India. The question therefore before the Constitution Bench of the Supreme Court was whether CSIR is a 'State" within the meaning of Article 12 of the Constitution Of India. After considering various judgements wherein the concerned "authorities" were either Companies; Corporations or Societies, the Supreme Court observed as under:
"31. The tests to determine whether a body falls within the definition of 'State' in Article 12 laid down in Ramana with the Constitution Bench imprimatur in Ajay Hasia form the keystone of the subsequent jurisprudential superstructure judicially crafted on the subject which is apparent from a chronological consideration of the authorities cited.
32. In P.K. Ramachandra Iyer and Others V. Union of India it was held that both the Indian Council of Agricultural Research (ICAR) and its affiliate Indian Veterinary Research Institute were Page 13 of 35 HC-NIC Page 13 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT bodies as would be comprehended in the expression "other authority" in Article 12 of the Constitution. Yet another judicial blow was dealt to the decision in Sabhajit Tewary when it was said:
"Much water has flown down the Jamuna since the dicta in Sabhajit Tewary case 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."
33. B. S. Minhas v. Indian Statistical Institute & Ors. held that the Indian Statistical Institute, a registered Society is an instrumentality of the Central Government and as such is an 'authority' within the meaning of Article 12 of the Constitution. The basis was that the composition of respondent No.1 is dominated by the representatives appointed by the Central Government. The money required for running the Institute is provided entirely by the Central Government and even if any other moneys are to be received by the Institute it can be done only with the approval of the Central Government, and the accounts of the Institute have also to be submitted to the Central Government for its scrutiny and satisfaction. The Society has to comply with all such directions as may be issued by the Central Government. It was held that the control of the Central Government is deep and pervasive.
34. The decision in Central Inland Water Transport Corporation Ltd. V. Brojo Nath Ganguli held that the appellant company was covered by Article 12 because it is financed entirely by three Governments and is completely under the control of the Central Government and is managed by the Chairman and Board of Directors appointed by the Central Government and removable by it and also that the activities carried on by the Corporation are of vital national importance.
35. However, the tests propounded in Ajay Hasia Page 14 of 35 HC-NIC Page 14 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT were not applied in Tekraj Vasandi alias K.S. Basandhi V. Union of India and Others 1988 (1) SCC 237, where the Institute of Constitutional and Parliamentary Studies (ICPS), a society registered under the Societies Registration Act, 1860 was held not to be an "other authority" within the meaning of Article 12. The reasoning is not very clear. All that was said was :
"Having given our anxious consideration to the facts of this 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".
36. However, the Court was careful to 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".
37. All India Sainik Schools Employees' Association V. Defence Minister-cum-Chairman Board of Governors, Sainik Schools Society held applying the tests indicated in Ajay Hasia that the Sainik School Society is a 'State'.
38. Perhaps this rather overenthusiastic application of the broad limits set by Ajay Hasia may have persuaded this Court to curb the tendency in Chander Mohan Khanna v. National Council of Educational Research and Training. The Court referred to the tests formulated in Sukhdev Singh, Ramana, Ajay Hasia, and Som Prakash Rekhi but striking a note of caution said that "these are merely indicative indicia and are by no means conclusive or clinching in any case". In that case, the question arose whether the National Council of Educational Research (NCERT) was a 'State' as defined under Article 12 of the Constitution. The NCERT is a society registered under the Societies Registration Act. After considering the provisions of its Memorandum of Association as well as the rules of NCERT, this Court came to the conclusion Page 15 of 35 HC-NIC Page 15 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT that since NCERT was largely an autonomous body and the activities of the NCERT were not wholly related to governmental functions and that the Government control was confined only to the proper utilisation of the grant and since its funding was not entirely from Government resources, the case did not satisfy the requirements of the State under Article 12 of the Constitution. The Court relied principally on the decision in Tekraj Vasandi @ K.L.Basandhi v. Union of India. However, as far as the decision in Sabhajit Tewary v. Union of India was concerned, it was noted that "the decision has been distinguished and watered down in the subsequent decisions".
39. Fresh off the judicial anvil is the decision in the Mysore Paper Mills Ltd. vs. The Mysore Paper Mills Officers Association which fairly represents what we have seen as a continuity of thought commencing from the decision in Rajasthan Electricity Board in 1967 upto the present time. It held that a company substantially financed and financially controlled by the Government, managed by a Board of Directors nominated and removable at the instance of the Government and carrying on important functions of public interest under the control of the Government is 'an authority' within the meaning of Article 12."
7.6 Ultimately, the Supreme Court held that the tests formulated in the case of Ajay Hasia (supra) were not rigid and if the body falls in any one of them, then it must be considered to be a "State" within the meaning of Article 12 of the Constitution Of India. The Court observed as under:
"40. 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 Page 16 of 35 HC-NIC Page 16 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT 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. "
7.7 In Pradeep Kumar Biswas (supra) on facts of the case it was found that the Institute was set up by the Government Of India. The Rules and the bye-laws were framed and revised thereafter by the Government. The Body was therefore created by the Government to carry on in an organised manner what was being done earlier by the Department of Commerce of the Central Government. The Objects and the functions of the Society were on record. The Management and Control of the Body was in the hands of the Government inasmuch as that the Members consisted of the Governor General in charge of the portfolio of Commerce, a representative of the Finance Department of the Government Of India and the Commerce Department each were on the Board. Rules and Regulations of 1999 provided that the Prime Minister of India shall be the ex-officio President of the Society. The Minister In charge of the Ministry or the department dealing with CSIR was the ex-officio Vice President. Analysing the constitution of the Governing Body, the Supreme Court found that the Government played a dominant role. It held that "the control of the Government in CSIR is ubiquitous". The Court on the appreciation of the Rules found that the Government had deep and pervasive control. On assessment of facts and in view of the additional factor that a notification under Section 14(2) of the Page 17 of 35 HC-NIC Page 17 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT Administrative Tribunals Act,1985 bringing the CSIR under the purview of the jurisdiction of the Central Administrative Tribunal, the Supreme Court in the majority judgement in the conclusive paragraphs held as under:
"60. In the assessment of the facts, the Court had assumed certain principles, and sought precedential support from decisions which were irrelevant and had "followed a groove chased amidst a context which has long since crumbled".
Had the facts been closely scrutinised in the proper perspective, it could have led and can only lead to the conclusion that CSIR is a State within the meaning of Article 12.
61. Should Sabhajit Tewary still stand as an authority even on the facts merely because it has stood for 25 years? We think not. Parallels may be drawn even on the facts leading to an untenable interpretation of Article 12 and a consequential denial of the benefits of fundamental rights to individuals who would otherwise be entitled to them and "[t]here is nothing in our Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public."
Since on a re-examination of the question we have come to the conclusion that the decision was plainly erroneous, it is our duty to say so and not perpetuate our mistake.
62. Besides a new fact relating to CSIR has come to light since the decision in Sabhajit Tewary which unequivocally vindicates the conclusion reached by us and fortifies us in delivering the coup de grace to the already attenuated decision in Sabhajit Tewary. On 31st October 1986 in exercise of the powers conferred by sub-section (2) of Section 14 of the Administrative Tribunals Act, 1985, the Page 18 of 35 HC-NIC Page 18 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT Central Government specified 17th November 1986 as the date on and from which the provisions of sub-section (3) of Section 14 of the 1985 Act would apply to CSIR "being the Society owned and controlled by Government".
63. The learned Attorney General contended that the notification was not conclusive of the fact that the CSIR was a State within the meaning of Article 12 and that even if an entity is not a State within the meaning of Article 12, it is open to the Government to issue a notification for the purpose of ensuring the benefits of the provisions of the Act to its employees.
64. We cannot accept this. Reading Article 323-A of the Constitution and Section 14 of the 1985 Act it is clear that no notification under section 14 (2) of the Administrative Tribunals Act could have been issued by the Central Government unless the employees of the CSIR were either appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government. Once such a notification has been issued in respect of CSIR, the consequence will be that an application would lie at the instance of the appellants at least before the Administrative Tribunal. No new jurisdiction was created in the Administrative Tribunal. The notification which was issued by the Central Government merely served to shift the service disputes of the employees of CSIR from the constitutional jurisdiction of the High Court under Article 226 to the Administrative Tribunals on the factual basis that CSIR was amenable to the writ jurisdiction as a State or other authority under Article 12 of the Constitution.
65. Therefore, the notification issued in 1986 by the Central Government under Article 14 (2) of the Administrative Tribunals Act, 1985 serves in Page 19 of 35 HC-NIC Page 19 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT removing any residual doubt as to the nature of CSIR and decisively concludes the issues before us against it.
66. Sabhajit Tewary decision must be and is in the circumstances overruled. Accordingly the matter is remitted back to the appropriate Bench to be dealt with in the light of our decision. There will be no order as to costs."
7.8 In the case of Zee Telefilms Ltd and Another versus Union Of India and Others reported in (2005) 4 SCC 649 the question that came up for consideration was whether the Board of Control for Cricket In India (BCCI), a Society, registered under the Societies Registration Act, 1860, was a "State" within the meaning of Article 12 of the Constitution Of India. In such judgement, the Supreme Court noticed that because of the change in the socio-economic policies of the Government, the Court had considered it necessary by judicial interpretation to give a wider meaning to the term "other authorities" in Article 12 so as to include such bodies which were created by an Act of Legislature to be included in the term "other authorities". It was in such a context that the tests formulated in the case of R.D.Shetty (supra) were reiterated. The Supreme Court even in Zee Telefilms (supra) held as under:
"21. Thereafter the larger Bench of this Court in Pradeep Kumar Biswas (supra) after discussing the various case laws laid down the following parameters for gauging whether a particular body could be termed as State for the purpose of Article 12:
"40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not Page 20 of 35 HC-NIC Page 20 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT 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."
22. Above is the ratio decidendi laid down by a seven Judge Bench of this Court which is binding on this Bench. The facts of the case in hand will have to be tested on the touch stone of the parameters laid down in Pradeep Kumar Biswas's case (supra). Before doing so it would be worthwhile once again to recapitulate what are the guidelines laid down in Pradeep Kumar Biswas's case (supra) for a body to be a State under Article
12. They are:
(1) Principles laid down 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.
(2) The question in each case will have to be considered on the bases of facts available as to whether in the light of the cumulative facts as established, the body is financially, functionally, administratively dominated, by or under the control of the Government. (3) Such control must be particular to the body in question and must be pervasive. (4) Mere regulatory control whether under statute or otherwise would not serve to make a body a State. "
8. Therefore, what emerges from the case laws discussed Page 21 of 35 HC-NIC Page 21 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT herein above is, that in order that an authority can come within the purview of Article 12 and be a "State" within such a definition, each case has to be considered on the facts available as to whether in light of such cumulative facts as established, the body is financially, functionally, administratively dominated or under the control of the Government. The control must be particular to a body in question and must be pervasive.
9. Shri Desai, appearing as party-in-person, through his pleadings in the petition and contents of the rejoinder has canvassed before us that the facts before us should persuade to hold that the CEPT is a "State" and therefore amenable to the Writ Jurisdiction of this Court.
10. Let us test arguments of the Party-In-Person, Shri Desai. The pleadings in the petition when read together with the rejoinder filed would indicate that:
(a) Heavy reliance is placed on the contents of the letter at Annexure A11, which read as under:
"
...
April 16, 1977 Dear Shri Doshi, This has reference to our discussions this morning regarding financial assistance to the School of Planning, Ahmedabad. Shri Tandon in his letter dated 5th April has clearly indicated that the Central Government would assist the institute for the post-graduate courses in Town Planning in accordance with the norms laid down by the All India Council for Technical Education. The Council Page 22 of 35 HC-NIC Page 22 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT has recognised the post-graduate courses in Town Planning as post-graduate courses in engineering and technology and therefore the institute would be eligible for 100% Central assistance for recurring expenditure in accordance with the norms laid down by the Council. If you would send me the details of the expenditure, we shall scrutinise and release the grants in accordance with the approved norms laid down by the Council.
..."
(b) CEPT is a technical institution as defined under the All India Council of Technical Education Act, 1987. That the Institute is controlled by the Central Government. It was his further case that the institution received 100% of admissible expenditure grant allocated by the Ministry of Human Resource Development, Union of India.
(c) The Governing Council of the institution had 11 members, of which 5 members were required to be nominated as stipulated in the Constitution.
(d) Though CEPT was a sponsored non-profit organisation of the Ahmedabad Education Society, it had under its umbrella various educational institutions/four constituent schools offering post graduate programmes in Architecture, Interior Design, Construction Technology etc. It was an autonomous academic institution regulated by a statutory authority i.e. AICTE. With effect from 12.04.2005, it had been made a University by an Act of State Legislative Assembly.
(e) It performs public functions, namely it is engaged in Page 23 of 35 HC-NIC Page 23 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT imparting technical education for higher learning.
(f) Various government projects are entrusted to CEPT and constituent schools .
(g) There is control of the government inasmuch as the pay and allowances of the faculty and the staff is based on the various pay commission recommendations announced by the Government for time to time and such pay and other financial benefits are released from the grants in aid received from the Central/State Government.
These factors are made out through mere pleadings to bring out the factor of deep and pervasive control of the Government in CEPT. No supporting material has come on record.
11. It needs to be appreciated that unlike before the Supreme Court, in the judgement of Ajay Hasia and Pradeep Kumar Biswas (supra), where extensive materials were produced to support such pleadings, nothing has come on record in the present case. Mere mentioning of indicants to show deep and pervasive control of the State, without any material would not be of assistance for us to conclusively hold whether, on facts, CEPT can be held to be "State" within the meaning of Article 12 of the Constitution Of India.
12. Assertions are made based solely on a letter of 1977 to state that 100% grants are received for the Institute from the Central Government. That the Institute is a grant-in-aid Page 24 of 35 HC-NIC Page 24 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT institution is not even disputed by CEPT. That by itself, singularly, does not indicate deep and pervasive control of the State. No details are furnished as to in what manner are such grants received and utilised, whether CEPT has a free hand in utilizing the funds so received or the Central Government would have a say in such earmarking of funds and pursuit of use of such funds for the purposes of the CEPT.
13. There is no material on record with regard to the constitution of the Governing Council of CEPT. The Memorandum of Association, if any, and the Rules are not on record. Mere oral submission based on a statement in the petition is made by Shri Desai that out of 11 Members, 5 Members are nominated by the Government and/or the AICTE, according to its Constitution. The Constitution of the CEPT is not produced. In other words, though pleadings have been made in the petition professing a claim of CEPT being within the purview of Article 12, solely on the basis of the deep and pervasive control of the State, such stand is not backed by commensurate material in support.
14. We appreciate the handicap that a Party-In-Person would face in advancing his cause based on questions of law. In absence of legal assistance, he may not be able to support his case through sufficient material on the issue of maintainability of his petition under Article 226 of the Constitution Of India on the premise of CEPT being a State within the meaning of Article 12 of the Constitution Of India. However, it is always the duty of the petitioner to produce necessary documents and materials to establish that a certain institution satisfies all conditions for being categorised as a Page 25 of 35 HC-NIC Page 25 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT State. As for the Party-in-Person, in absence of such material on record it is difficult to hold that CEPT is a "State" within the meaning of Article 12 of the Constitution Of India.
15. We may add a word of caution. It is in the context of the facts of the present case, in absence of sufficient material on record that we are unable to hold that CEPT is a "State" within the meaning of Article 12 of the Constitution Of India. The question therefore, that CEPT is or is not a "State" can be answered authoritatively only in an appropriate case where full material is brought on record. For the limited purpose of this petition, we do not entertain the same for the failure of the petitioner to bring necessary material to declare that CEPT is a "State". We hold so because except for asserting deep and pervasive control of the State through pleadings and oral submissions, no supporting material to substantiate such assertion is on record.
16. Therefore in a given case, henceforth, if a petitioner, makes out a case, based on sufficient material to persuade the Court to hold that CEPT is a "State" within the meaning of Article 12 of the Constitution Of India, nothing would prevent the Court from examining the issue of such a claim on merits.
17. Before we close the issue, we must deal with the submissions of the Party-In-Person in context of the petition being otherwise maintainable even if CEPT is not a State within Article 12 of the Constitution Of India. This is so because Shri Desai also submitted that powers under Article 226 of the Constitution is wide enough and can be invoked not only for protection of Fundamental Rights but also for other Page 26 of 35 HC-NIC Page 26 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT purposes. When the nature of duties and functions performed by the Body against whom a Writ is sought discharges public duty, a Writ against such a Body is maintainable. Heavy reliance was placed on relevant paragraphs of the judgement in the case of K K Saksena (supra). Based on a reference in the said judgement on the case of Andi Mukta (supra), Shri Desai submitted that even though when such an educational institution was run by a private trust, since it was discharging public functions, the Supreme Court held a Writ of Mandamus against such an Institution maintainable.
18. In the case of Andi Mukta (supra), the teachers of a College run by a Trust had sought a Writ of Mandamus against the Trust for payment of their due salary and allowances. The Trust resisted the petition on the ground that it was not a statutory body and therefore not subject to writ jurisdiction. The Supreme Court observed that if the rights are of purely a private character and the management of the college is purely a private body, no writ of mandamus would lie. However, when it was found on facts that in the employer-employee relationship there was an added protection of the University, mandamus could not be refused. The Court observed as under:
"15. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants--trust was managing the affiliated college to which public money is paid as Government aid. Public money Page 27 of 35 HC-NIC Page 27 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. So are the service conditions of the academic staff. When the University takes a decision regard- ing their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus can not be refused to the aggrieved party. "
The Court further observed that the term "authority" under Article 226 must receive a liberal interpretation unlike the one under Article 12. The Supreme Court held that Mandamus is a very wide remedy which must be easily available.
19. Before going on to the applicability of the judgement, it would be worthwhile to make a passing reference to the decision in the case Board Of Control For Cricket In India versus Cricket Association Of Bihar and Others reported in (2015) 3 SCC 251. One of the questions before the Supreme Court in the case was whether the Board is "State" within the meaning of Article 12 of the Constitution Of India and if it is not whether it is amenable to writ jurisdiction of the High Court under Article 226 of the Constitution Of India. The Court held that even when BCCI is not a " State" within Page 28 of 35 HC-NIC Page 28 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT the meaning of Article 12 of the Constitution Of India, it is amenable to the writ jurisdiction as the nature of duties and functions are clearly public functions. The Court held as under:
"33. The majority view thus favours the view that BCCI is amenable to the writ jurisdiction of the High Court under Article 226 even when it is not "State" within the meaning of Article 12. The rationale underlying that view if we may say with utmost respect lies in the "nature of duties and functions" which BCCI performs. It is common ground that the respondent Board has a complete sway over the game of cricket in this country. It regulates and controls the game to the exclusion of all others. It formulates rules, regulations, norms and standards covering all aspects of the game. It enjoys the power of choosing the members of the national team and the umpires. It exercises the power of disqualifying players which may at times put an end to the sporting career of a person. It spends crores of rupees on building and maintaining infrastructure like stadia, running of cricket academies and supporting State associations. It frames pension schemes and incurs expenditure on coaches, trainer, etc. It sells broadcast and telecast rights and collects admission fee to venues where the matches are played. All these activities are undertaken with the tacit concurrence of the State Government and the Government of India who are not only fully aware but supportive of the activities of the Board. The State has not chosen to bring any law or taken any other step that would either deprive or dilute the Board's monopoly in the field of cricket. On the contrary, the Government of India has allowed the Board to select the national team which is then recognised by all concerned and applauded by the entire nation including at times by the highest of the dignitaries when they win tournaments and bring laurels home. Those distinguishing themselves in the international arena are conferred highest civilian awards like the Bharat Ratna, Page 29 of 35 HC-NIC Page 29 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT Padma Vibhushan, Padma Bhushan and Padma Shri apart from sporting awards instituted by the Government. Such is the passion for this game in this country that cricketers are seen as icons by youngsters, middle aged and the old alike. Any organisation or entity that has such pervasive control over the game and its affairs and such powers as can make dreams end up in smoke or come true cannot be said to be undertaking any private activity.
34. The functions of the Board are clearly public functions, which, till such time the State intervenes to takeover the same, remain in the nature of public functions, no matter discharged by a society registered under the Registration of Societies Act. Suffice it to say that if the Government not only allows an autonomous/private body to discharge functions which it could in law take over or regulate but even lends its assistance to such a non-government body to undertake such functions which by their very nature are public functions, it cannot be said that the functions are not public functions or that the entity discharging the same is not answerable on the standards generally applicable to judicial review of State action.
35. Our answer to Question (i), therefore, is in the negative, qua, the first part and affirmative qua the second. BCCI may not be "State" under Article 12 of the Constitution but is certainly amenable to writ jurisdiction under Article 12 of the Constitution of India."
20. In such background, we need to consider the judgement in the case of K.K Saksena (supra), in the facts of the present case. In the case before the Supreme Court, the petitioner/appellant was an employee of the International Commission on Irrigation and Drainage. The organisation was a Society. The High Court dismissed the petition on the Page 30 of 35 HC-NIC Page 30 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT ground that the Body was not a State within the meaning of Article 12 of the Constitution Of India and also on the ground that even if it was held so, alternatively, the Body was not discharging public duties so as to be amenable to the Writ Jurisdiction. While examining the sole issue of amenability of writ jurisdiction, the court in the context of cases of Ajay Hasia(supra), Andi Mukta (supra), Zee Telefilms (supra) and Pradip Kumar Biswas (Supra) held as under:
"31. We have given our thoughtful consideration to the arguments of learned counsel for the parties.
32. If the authority/body can be treated as a 'State' within the meaning of Article 12 of the Constitution of India, indubitably writ petition under Article 226 would be maintainable against such an authority/body for enforcement of fundamental and other rights. Article 12 appears in Part III of the Constitution, which pertains to 'Fundamental Rights'. Therefore, the definition contained in Article 12 is for the purpose of application of the provisions contained in Part III. Article 226 of the Constitution, which deals with powers of High Courts to issue certain writs, inter alia, stipulates that every High Court has the power to issue directions, orders or writs to any person or authority, including, in appropriate cases, any Government, for the enforcement of any of the rights conferred by Part III and for any other purpose.
33. In this context, when we scan through the provisions of Article 12 of the Constitution, as per the definition contained therein, the 'State' includes the Government and Parliament of India and the Government and Legislature of each State as well as "all local or other authorities within the territory of India or under the control of the Government of India". It is in this context the question as to which body would qualify as 'other authority' has come up for consideration before this Court ever since, and the test/principles which are Page 31 of 35 HC-NIC Page 31 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT to be applied for ascertaining as to whether a particular body can be treated as 'other authority' or not have already been noted above. If such an authority violates the fundamental right or other legal rights of any person or citizen (as the case may be), writ petition can be filed under Article 226 of the Constitution invoking the extraordinary jurisdiction of the High Court and seeking appropriate direction, order or writ. However, under Article 226 of the Constitution, the power of the High Court is not limited to the Government or authority which qualifies to be a 'State' under Article 12. Power is extended to issue directions, orders or writs "to any person or authority". Again, this power of issuing directions, orders or writs is not limited to enforcement of fundamental rights conferred by Part III, but also 'for any other purpose'. Thus, power of the High Court takes within its sweep more "authorities" than stipulated in Article 12 and the subject matter which can be dealt with under this Article is also wider in scope."
21. The Court in the facts of the case held that the body therein even in addition to not being a State within the meaning of Article 12, did not carry out public functions to make it amenable to the writ jurisdiction of this Court. The Court held as under:
"43. What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is a 'State' within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. Reason is obvious. Private law is that part of a legal system which is a part of Common Law that involves relationships between Page 32 of 35 HC-NIC Page 32 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is 'State' under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law.
***
45. On the other hand, even if a person or authority does not come within the sweep of Article 12 of the Constitution, but is performing public duty, writ petition can lie and writ of mandamus or appropriate writ can be issued. However, as noted in Federal Bank Ltd. (supra), such a private body should either run substantially on State funding or discharge public duty/positive obligation of public nature or is under liability to discharge any function under any statute, to compel it to perform such a statutory function.
46. In the present case, since ICID is not funded by the Government nor it is discharging any function under any statute, the only question is as to whether it is discharging public duty or positive obligation of public nature.
****
51. Even in Anadi Mukta Sadguru (supra), which took a revolutionary turn and departure from the earlier views, this Court held that 'any other authority' mentioned in Article 226 is not confined to statutory authorities or instrumentalities of the State defined under Article 12 of the Constitution, it also emphasized that if the rights are purely of a private character, no mandamus could issue.
52. It is trite that contract of personal service cannot be enforced. There are three exceptions to this rule, namely: (i) when the employee is a public servant working under the Union of India or State;
(ii) when such an employee is employed by an authority/ body which is a State within the meaning of Article 12 of the Constitution of India; and (ii) when such an employee is 'workmen' within the meaning of Section 2(s) of the Industrial Disputes Page 33 of 35 HC-NIC Page 33 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT Act, 1947 and raises a dispute regarding his termination by invoking the machinery under the said Act. In the first two cases, the employment ceases to have private law character and 'status' to such an employment is attached. In the third category of cases, it is the Industrial Disputes Act which confers jurisdiction on the labour court/industrial tribunal to grant reinstatement in case termination is found to be illegal.
53. In the present case, though we have held that ICID is not discharging any public duty, even otherwise, it is clear that the impugned action does not involve public law element and no 'public law rights' have accrued in favour of the appellant which are infringed. The service conditions of the appellant are not governed in the same manner as was the position in Anadi Mukta Sadguru (supra). "
22. According to the appellant - original petitioner, CEPT is an Educational Institution imparting education in the field of Technical Education. It therefore performs public functions namely that it is engaged in imparting technical education for higher learning. Moreover, as various government projects are entrusted to CEPT and constituent schools the duties are public in nature and hence even if we were to hold that it is not a "State" within the meaning of Article 12 of the Constitution Of India, the Institution would be amenable to Article 226 of the Constitution Of India.
23. Even if we find that CEPT was discharging important public function or public duty, writ under Article 226 of the Constitution of India would be maintainable in connection with the discharge of such public function or public duty by such institution. Employment and service conditions of an employee would not fall in such category.
Page 34 of 35HC-NIC Page 34 of 35 Created On Sun Oct 01 18:39:28 IST 2017 C/LPA/1344/2015 CAV JUDGMENT (AKIL KURESHI, J.) (BIREN VAISHNAV, J.) divya Page 35 of 35 HC-NIC Page 35 of 35 Created On Sun Oct 01 18:39:28 IST 2017