_____________________________________________________________________________________________ LPA Nos.220 of 2002 & 313 of 2002 Page 1 of 32 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 14.01.2010 % Date of decision: 12.03.2010 + LPA No.220 of 2002 CENTRE FOR POLICY RESEARCH …APPELLANT Through: Mr. R.K.P. Shankardas, Sr. Advocate with Mr. P. Nagesh & Mr. Anand Mishra, Advocates. Versus BRAHMA CHELLANEY & ORS. ...RESPONDENTS Through: Mr. Akhil Sibal, Mr. Salim Inamdar, Ms. Aeshna Singh & Ms. Mihira Sood, Advs. for Respondent No.1. + LPA No.313 of 2002 V.A. PAI PANANDIKER …APPELLANT Through: Mr. Amarjit Singh Bedi, Advocate. Versus BRAHMA CHELLANEY & ORS. ...RESPONDENTS Through: Mr. Akhil Sibal, Mr. Salim Inamdar, Ms. Aeshna Singh & Ms. Mihira Sood, Advs. for Respondent No.1. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON‟BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes _____________________________________________________________________________________________ LPA Nos.220 of 2002 & 313 of 2002 Page 2 of 32 SANJAY KISHAN KAUL, J. 1. Persons of eminence in their field are also not above personal prejudices and petty squabbles. The present litigation is a consequence of such an approach. 2. The Centre for Policy Research (for short „Centre‟), appellant herein, was set up as a Society registered under the Societies Registration Act, 1860 with the objective of planning, promoting and providing for education and training in policy planning and management areas. The Memorandum of Association inter alia provides for holding seminars and conferences, conducting research, promoting education and development of personnel with the objective of maximization of the national resources. The Memorandum is widely worded and the Society was set up with the blessings of late Shri T.A. Pai, then a Union Minister with eminent people involved in it. Dr. V.A. Pai Panandiker, the appellant in LPA No.313/2002 was a Member Secretary. Dr. Brahma Chellaney, respondent No.1 also came to be associated with this organization, who is also one of the eminent persons of his field. The Centre was granted lease of land by the Government of India at institutional rates to construct its campus building in 1978-79 after it was originally set up in 1972 and the new campus started functioning from March, 1980. Respondent No.1 was appointed as a Research Professor on 23.6.1993 and a fresh letter of appointment was issued on 1.4.2000 increasing the remuneration with retrospective effect. The services of respondent No.1 were, however, terminated on 16.8.2000 giving three (3) months‟ salary in lieu of such termination. Aggrieved by this action, respondent No.1 _____________________________________________________________________________________________ LPA Nos.220 of 2002 & 313 of 2002 Page 3 of 32 filed WP (C) No.5928/2000 in this Court along with an interlocutory application praying for interim stay. The learned single Judge in terms of order dated 15.11.2000 granted stay of termination. In the mean time, Dr. V.A. Pai Panandiker resigned on 2.9.2000 though the decision on that resignation was deferred by the Governing Body of the Centre. The Union of India preferred an appeal against the interlocutory order but the same was dismissed as withdrawn in view of the writ petition, which was pending. The writ petition came to be decided by the learned single Judge of this Court on 18.1.2002. The writ of respondent No.1 was allowed with costs of Rs.10,000.00 against Dr. V.A. Pai Panandiker. 3. The Centre preferred a Letters Patent Appeal which is before us and Dr. V.A. Pai Panandiker also filed an appeal on similar grounds, apart from raising the issue of imposition of costs personally on him. Along with the appeal an application for interim stay was also filed but the same was dismissed as not pressed. 4. The Centre decided to accept the decision of the learned single Judge insofar as the quashing of the termination of services of respondent No.1 is concerned but constituted an Inquiry Committee to look into the conduct of respondent No.1. On the basis of the recommendations of the Inquiry Committee action was sought to be taken against respondent No.1 which was challenged by respondent No.1 in WP (C) No.4542/2002. The said writ is still pending and interim orders in favour of respondent No.1 were granted. 5. The result of all this is that the impugned action of termination against respondent No.1 which resulted in the orders of the learned _____________________________________________________________________________________________ LPA Nos.220 of 2002 & 313 of 2002 Page 4 of 32 single Judge which is now sought to be impugned in the present appeals does not stand and has been accepted by the appellant Centre. The appellant Centre is, however, aggrieved by certain conclusions drawn by the learned single Judge in respect of the nature of entity which the Centre is and that is the reason learned counsel for the appellant refused to give up the appeal stating that though the original cause of action may have been extinguished, the appellant Centre has a right to agitate the appeal on the question of law decided by the impugned judgement. We may notice that an endeavour was made to work out an amicable solution but the same proved to be futile. 6. In the impugned judgement the learned single Judge has made certain observations about the Centre being a „state‟ within the meaning of the expression “other authority” under Article 12 of the Constitution of India which raises certain doubts. Learned counsel for respondent No.1 fairly stated, and it was recorded in the order dated 27.8.2008 read with the order dated 18.11.2008 that he was not pressing that issue or the claim that the Centre is an authority covered within the ambit of Article 12 of the Constitution of India and could not support the observations in the impugned judgement in that behalf. It was, thus, agreed that to that extent the observations in the impugned judgement are unsustainable and are accordingly set aside. 7. However, the question which was sought to be agitated, and over which elaborate arguments have been addressed by learned counsels for the parties is the amenability of the Centre to the writ jurisdiction of this Court under Article 226 of the Constitution of India under the category of “other authority”. _____________________________________________________________________________________________ LPA Nos.220 of 2002 & 313 of 2002 Page 5 of 32 8. The surprising part is that this matter has been sought to be agitated despite the factual matrix not existing and in that sense a legal opinion is being invited in a vacuum. This is the direct result of the insistence of the learned counsel for the appellant that this question of law vis-a-vis the Centre needs to be adjudicated in its favour while on the other hand, learned counsel for respondent No.1 canvassed that the observations in the impugned judgement in that behalf are liable to stand. The judgements cited by learned counsels for the parties are more or less the same but it is the conclusion sought to be derived in the factual matrix of the Constitution of the Centre and its upkeep over which there is divergence. 9. Learned counsel for the appellant submitted that the issue is no more res integra in view of the observations of the Supreme Court in Binny Limited & Anr. Vs. V. Sadasivan & Ors. (2005) 6 SCC 657 as a triple test has been laid down for invocation of remedy under Article 226 of the Constitution of India: a. The private body is discharging a public function. b. The decision sought to be corrected or enforced must be in discharge of a public function. c. The public duty imposed is not of a discretionary character. It has also been observed that the scope of mandamus is determined by the nature of duties to be enforced rather than the identity of the authority against whom it is sought. 10. Learned counsel submitted that the aforesaid legal principle has emerged over a period of time and there are even earlier judgements which, in fact, adopted the same legal principle. In G. Bassi Reddy _____________________________________________________________________________________________ LPA Nos.220 of 2002 & 313 of 2002 Page 6 of 32 Vs. International Crops Research Institute & Anr. (2003) 4 SCC 225, it was observed that the public function or public duty should be similar to or closely related to those performable by the state in its sovereign capacity and thus it was observed that the primary activity of ICRI is to conduct research and training programme in the sphere of agriculture purely on a voluntary basis and such a service voluntary undertaken could not be said to be a public duty. In Federal Bank Limited Vs. Sagar Thomas & Ors. (2003) 10 SCC 733, a writ under Article 226 of the Constitution of India was held to be maintainable against any person or authority performing public duty, owing positive obligation to the effected party. Thus, private companies carrying on business or commercial activity or banking in conformity with the Reserve Bank of India banking policy was held not sufficient to bring them within the ambit of discharge of any public function or public duty. 11. Learned counsel also emphasized that the learned single Judge has been unnecessarily influenced by the factum of land being made available by the Government of India to the Centre as a criteria for bringing it within the domain of Article 226 of the Constitution of India even though in the Division Bench of this Court in Air Vice Marshal J.S. Kumar Vs. Governing Council of Air Force Sports Complex & Anr. 126 (2006) DLT 330 (DB) it was observed that merely because the Government had provided some land to the AFSC, it would not make the AFSC a state under Article 12 of the Constitution of India. _____________________________________________________________________________________________ LPA Nos.220 of 2002 & 313 of 2002 Page 7 of 32 12. A reference was also made to Rahul Mehra & Anr. Vs. Union of India 114 (2004) DLT 322 (DB) in the context of the status of the Board of Control for Cricket in India. It was held that while BCCI may be amenable to writ jurisdiction but every action of the BCCI would not be subject to judicial review but only such of the actions which fall within the ambit of public law. A body, public or private, could not be categorized as amenable or not amenable to writ jurisdiction and their function test was the correct one to test maintainability. 13. Learned senior counsel canvassed before us that in the impugned judgement the Centre has not been held as comparable to a regular educational institution to invite the ratio of Unni Krishnan J.P. & Ors. Vs. State of Andhra Pradesh & Ors. (1993) 1 SCC 645, but the factum of land being allotted at concessional rates was deemed to be a factor to prevent the Centre from claiming immunity from judicial review under Article 226 of the Constitution of India. 14. We may observe at this stage insofar as the factual dispute is concerned, the learned single Judge opined that since the appointment of respondent No.1 was made by the Governing Body, it was only a decision of the Governing Body which could terminate his services. It was found that there was lack of specific authorization on delegation of power to Dr. V.A. Pai Panandiker to take the decision of termination of services of respondent No.1. 15. Learned counsel also sought to specifically deal with the aspect of educational institutions since the stand of respondent No.1 was that the Centre was intrinsically involved in the aspect of education and _____________________________________________________________________________________________ LPA Nos.220 of 2002 & 313 of 2002 Page 8 of 32 was enrolling students and granting certificates in respect of the same. It was submitted that the word “Education” should be understood in the sense of systematic instruction, schooling or training given to young in preparation for the work of life and connotes the whole course of scholastic instruction which a person has received as observed in The Sole Trustee, Lok Shikshana Trust Vs. CIT, Mysore (1976) 1 SCC 254. Similarly in T.M.A. Pai Foundation Vs. State of Karnataka (2002) 8 SCC 481, it was observed in para 287 as under: “287. Education plays a cardinal role in transforming a society into a civilised nation. It accelerates the progress of the country in every sphere of national activity. No section of the citizens can be ignored or left behind because it would hamper the progress of the country as a whole. It is the duty of the State to do all it could, to educate every section of citizens who need a helping hand in marching ahead along with others.” 16. In S. Azeez Basha Vs. Union of India AIR (1968) SC 662 the nature of educational institutions was dealt with as under: “21. Before we do so we should like to say that the words “educational institutions” are of very wide import and would include a university also. This was not disputed on behalf of the Union of India and therefore it may be accepted that a religious minority had the right to establish a university under Article 30(1). The position with respect to the establishment of Universities before the Constitution came into force in 1950 was this. There was no law in India which prohibited any private individual or body from establishing a university and it was therefore open to a private individual or body to establish a university. There is a good deal in common between educational institutions which are not universities and those which are universities. Both teach students and both have teachers for the purpose. But what distinguishes a university from any other educational institution is that a university grants degrees of its own while other educational institutions cannot. It is this granting of degrees by a university which distinguishes it from the ordinary run of educational institutions. (See St. David’s College, Lampeter v. Ministry of Education 3). Thus in law in India there was no prohibition against establishment of universities by private individuals or bodies and if any university was so established it must of necessity be granting degrees before it could be called a university. But though such a university might be granting degrees it did not follow that the _____________________________________________________________________________________________ LPA Nos.220 of 2002 & 313 of 2002 Page 9 of 32 Government of the country was bound to recognise those degrees. As a matter of fact as the law stood up to the time the Constitution time into force, the Government was not bound to recognise degrees of universities established by private individuals or bodies and generally speaking the Government only recognised degrees universities established by it by law. No private individual or body could before 1950 insist that the degrees of any university established by him or it must be recognised by Government. Such recognition depended upon the will of government generally expressed through statute. The importance of the recognition of Government in matters of this kind cannot be minimised. This position continued even after the Constitution came into force. It is only in 1956 that by sub-section (1) of Section 22 of the University Grants Commission Act, (3 of 1956) it was laid down that “the right to conferring or granting degrees shall be exercised only by a University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a University under Section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees”. Sub-section (2) thereof further provided that “save as provided in sub-section (1), no person or authority shall confer, or grant, or hold himself or itself as entitled to confer or grant any degree”. Section 23 further prohibited the use of the word “university” by an educational institution unless it is established by law. It was only thereafter that no private individual or body could grant a degree in India. Therefore it was possible for the Muslim minority to establish a university before the Constitution came into force, though the degrees conferred by such a university were not bound to be recognised by Government.” 17. Learned counsel also referred to the definitions of “Research” since the Centre is primarily engaged in research works. The following three definitions were referred to for the said purpose: “From New Shorter Oxford Dictionary 1993 “1. …. 2. A search or investigation undertaken to discover facts or reach new conclusions by a critical study of a subject or by a course of scientific inquiry. 3. Systematic investigation into and study of materials, sources, etc., to establish facts, collate information, etc.; formal postgraduate study or investigation; surveying of opinions or background information relevant to a project etc.” From The World Bank Dictionary “1. Hunting for facts or truth about a subject; inquiry; investigation: The researches of men of science have done much to lessen disease. SYN: study. 2. Organized scientific investigation to solve problems, test hypothesis, or develop or invent new products; atomic research, cancer research.” From Wikipedia, the Free Encyclopedia on Internet _____________________________________________________________________________________________ LPA Nos.220 of 2002 & 313 of 2002 Page 10 of 32 “Research is defined as human activity based on intellectual application in the investigation of matter. The primary aim for applied research is discovering, interpreting, and the development of methods and systems for the advancement of human knowledge on a wide variety of scientific matters of our world and the universe. Research can use the scientific method, but need not do so.” 18. Insofar as the factual matrix is concerned learned counsel emphasized that the Centre is a registered Society which originally worked from a rented premises till it was made available a lease of land by the Government of India on which the Centre constructed the building. The plea advanced was that the Government had no role in its founding nor say either in the constitution of the Governing Body or election of its new members. There was no mention of Government control in its Memorandum and control of all operations vested with the Governing Body. The appointment of staff and fellows was by the Governing Body in its sole authority. The corpus is stated to be raised from variety of sources including collaborations, foreign foundations, multilateral agencies, etc. and the proportion of receipts for the Government projects is very small as compared to total receipts. 19. The grants received from ICSSR were stated to be not sufficient to cover the salaries of core faculty and staff and thus salaries were paid from the pool of resources. 20. An emphasis was laid on the fact that the Society has about 14 honorary faculty members with 21 paid faculty members and 19 supportive staff whose pay structure could be fixed by the Centre. _____________________________________________________________________________________________ LPA Nos.220 of 2002 & 313 of 2002 Page 11 of 32 The Centre voluntary adopted certain pay scales for some of the faculties and staff members in terms of scales of UGC. 21. Learned counsel for respondent No.1, on the other hand, emphasized certain important factual aspects which according to him should weigh in making the Centre amenable to writ jurisdiction under Article 226 of the Constitution of India especially in respect of matters of employment of faculty. These are: i. Notification dated 27.4.1977 of Ministry of Education & Social Welfare establishing the status of the Appellant as an educational institution. ii. The Centre is included in Schedule to the Provident Fund Act, 1925 as a „Public Institution‟. iii. The Centre is Government aided and certified educational institution and has signed agreements with Manipal Academy of Higher Education, a Deemed University, for providing Doctoral and Post Doctoral training to students. iv. The Centre is exempted from Income Tax under Section 10 (23C) (vi) of the Income Tax Act, 1961 as an educational institution. v. The Centre is recognized as a Scientific and Industrial Research Organization entitling it to administrative support from the Ministry of Science & Technology and to custom/excise duty exemptions from import of equipment, spares and consumables. vi. The allotment of land to the Centre on account of its status as an educational institution. _____________________________________________________________________________________________ LPA Nos.220 of 2002 & 313 of 2002 Page 12 of 32 vii. The applicability of ICSSR grant-in-aid rules on service matters and the rules superseding the power of the Governing Body to that extent. viii. The use of recurring Government grant-in-aid for maintenance of permanent faculty while non-recurring grant-in-aid is used for infrastructural support. ix. The Central Government and ICSSR have oversight authority over the Centre in terms of accounts, foreign funding and representation on the Governing Board. x. The receipt of large funds from the Government of India, State Governments and Public Sector Undertakings and Government agencies. xi. Income of the Centre from the work done on behalf of public bodies. xii. The large amount of fund flow is apparent even for the financial year 2006-2007 where Rs.1.58 crore was received from public sources – recurring Government grant-in-aid Rs.69.00 lakh; profit from test & examination-Rs.47.00 lakh; rent payment from National Knowledge Commission-Rs.42.00 lakh in respect of part of premises of the Centre. 22. It may be noticed that respondent No.1 has filed documents in support of each of the aforesaid aspects and thus submitted that these are not just stray allegations but substantiated by documentary proofs and if all these factors are taken into account there can be no doubt that the Centre is amenable to writ jurisdiction under Article 226 of _____________________________________________________________________________________________ LPA Nos.220 of 2002 & 313 of 2002 Page 13 of 32 the Constitution of India at least in respect of matters of employment of the faculty. 23. Learned counsel also referred to some other judgements to canvas his case. In K. Krishnamacharyulu & Ors. Vs. Sri Venkateswara Hindu College of Engineering & Anr. (1997) 3 SCC 571 while dealing with the issue of maintainability of writ petition under Article 226 of the Constitution of India against a private party it was observed that there was an element of public interest in respect of pay and allowances of employees of non-aided private educational institution because there is a right to education. The Supreme Court has held that where interest is created by Government in an institution to impart education, which is a fundamental right of the citizens, the teachers who impart the education, get an element of public interest in the performance of their duties. This in turn requires regulation of conditions of service of those employees at par with Government employees. 24. In N.K. Aggarwal Vs. Union of India & Ors. 137 (2007) DLT 153 (DB), KRIBHCO was held to be amenable to writ jurisdiction under Article 226 of the Constitution of India as the scope of activities was no way limited to manufacture and production of fertilizers but clearly involved community development and farmer benefit. The issue of question of Article 226 of the Constitution of India being applicable was held not in any way dependent on Article 12 of the Constitution of India. Once again, in Dr. T.C. Sharma Vs. Lieutenant Governor & Ors. 82 (1999) DLT 289 (DB) the aspect of public duty while exercising jurisdiction under Article 226 of the Constitution of _____________________________________________________________________________________________ LPA Nos.220 of 2002 & 313 of 2002 Page 14 of 32 India was emphasized in the context of SCERT in the context of its employees seeking parity with NCERT. A Division Bench of Karnataka High Court in Arun Narayan Vs. The State of Karnataka & Anr. AIR 1976 Karnataka 174 took a similar view while dealing with the aspect of admission to a private medical college. 25. We may notice that there have been two recent judgements of the Division Benches of this Court where the question of amenability to writ jurisdiction under Article 226 of the Constitution of India has been dealt with. In All India Lawyers Union (Delhi Unit) Vs. Government of NCT of Delhi & Ors. 163 (2009)