HIGH COURT OF UTTARAKHAND AT NAINITAL WPMS No. 1948 of 2008 Master Kanishka Prasad and another …. Petitioners Versus The Saint Joseph College, Nainital …. Respondent Mr. Nand Prasad, learned counsel for the petitioners. Mr. K.P. Upadhyay, learned counsel for the respondent. And WPMS No. 1994 of 2008 Master Harshit Mehra …. Petitioner Versus The Saint Joseph College, Nainital …. Respondent Ms. Prabha Nauliyal, learned counsel for the petitioner. Mr. K.P. Upadhyay, learned counsel for the respondent. 24th February, 2009 Hon’ble Sudhanshu Dhulia, J. Heard learned counsels for the parties. These petitions have been filed by the minors through their guardians/parents seeking a writ, order or direction in the nature of certiorari and mandamus from this Court. The issue raised in the present writ petitions by the petitioners is that they had sought admission in Saint Joseph College, Nainital for admission to Class I for the academic session of year 2009. The petitioners allege that though they appeared in the written entrance test on 12.10.2008, they received the letter of regret informing that they have not been able to qualify in the entrance examination vide letter dated 11.10.2008. Clearly, this is not possible and, therefore, the 2 case of the petitioners is that the respondent was predetermined not to admit the petitioners and the entire admission procedure is eyewash. In this case, on earlier occasion, counter affidavits were called. Counter affidavits have been filed. The main defence of the college is that there were two examinations held in the college, the examination for class I was held on 12.10.2008 and the examination for class III was held on 5.10.2008. The Admission Committee has prepared the list of admitted candidates for class I on 24.10.2008 and the letters were also sent subsequently. The learned counsel for the petitioners has also stated at the bar that they received the letter of regret post 24.10.2008 (although the letter bears the date 11.10.2008). The case of the respondent is that the dates in the letters were printed 11.10.2008 as on this date letters for admission which were meant for class III candidates, were sent to the candidates. The communication regarding class I though sent after 24.10.2008 was printed on letters dated 11.10.2008 and the mistake is due to inadvertence. However, this Court cannot go into these disputed questions of fact inasmuch as the petitioners really have a remedy to file a suit before a proper court where the disputed questions of fact can be raised and will be appreciated. Before this Court in a writ petition under Article 226 of the Constitution of India these questions cannot be raised. More importantly, in view of this Court, this writ petition is not maintainable as Saint Joseph College, Nainital is neither a “State” nor an “instrumentality of the State”. Undoubtedly, writ petition under Article 226 of the Constitution of India can be filed against a “person” or an “authority”. The word “person” would mean a person to whom according to well-established principles writ lies. This is not the case here. To make a “person” or an “authority” amenable to writ jurisdiction, it must be shown by the petitioner that such a “person” or “authority” is either a “State” or an instrumentality of the 3 State. The writ petitioners have failed to advance any argument on this behalf. Nor have the petitioners been able to show that the writ petition would lie against Saint Joseph College as it is bound by any Statute or under any obligation to admit the petitioners. In fact, this aspect has been much elaborated by the Constitution Bench Judgment of the Apex Court in Ajay Hasia v. Khalid Mujib Sehravardi and others reported in AIR 1981 Supreme Court 487. These two terms, “person” and “authority”, have now been so well-defined in a catena of decisions of the Supreme Court and the terms apply to an authority having a “deep and pervasive control” of the State. Such a control has to be either administrative or financial or both. There is no such control of the State authorities on private institution like Saint Joseph College inasmuch as Saint Joseph College is neither under grant-in-aid nor does it have any administrative control of deep and pervasive nature by the State Government. Therefore, the action of the respondents cannot be challenged in a writ petition and the writ petition for this ground is totally misconceived as it is not maintainable. Statement has also been made at the Bar by the learned counsel appearing for the College that Saint Joseph College is also an institution which has been established and is being administered by a minority community i.e. the Christian community and, therefore, it has a further protection under Article 30 of the Constitution of India. Indeed if this is so, the Saint Joseph College being a minority institution is placed in a different category altogether and the administrative action of the respondents has to be evaluated from this aspect also. However, this Court at present, refrains to give any findings on this aspect as indeed a writ petition may lie against a minority institution in certain category of cases although the present case is not a case of a nature where any interference is called for. 4 For these reasons stated above, this Court is not inclined to interfere in the matter and the writ petitions, therefore, are dismissed. There is no order as to costs. (Sudhanshu Dhulia, J.) 24.2.2009 Avneet 5 6