IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 131 OF 2009 (MS) Arun Kumar ………………….Petitioner. Versus ICFAI University and others. ……...Respondents. Mr. Arun Kumar – petitioner (in person). Mr. A.K. Joshi, Advocate holding brief of Mr. Sandeep Tandon & Mohd. Azim, Advocates for respondent no. 1 and 2. 31st July, 2009 Hon’ble Sudhanshu Dhulia, J. This writ petition was earlier disposed of by order dated 5th May, 2009. The petitioner is a student of ICFAI University and was caught using unfair means in the examination, and therefore as a punishment, he was debarred for one semester. This order was challenged by the petitioner by means of a writ petition. This writ petition was disposed of on merits as there was no worthwhile objection by the respondents as to the maintainability of the writ petition. The writ petition was in fact dismissed. All the same, the order dated 5th May, 2009 was challenged by the petitioner in a Special Appeal No. 97 of 2009 and consequently vide order dated 18th June, 2009 of the Division Bench, the matter has been remanded to this Court. In pursuance of order dated 18.6.2009 what has now to be examined by this Court is as to whether the ICFAI University can be called a “State” or an “instrumentality of the State” within the meaning of Article 12 of the Constitution of India and if it is so, the 2 matter has to be referred back to the Division Bench but in case, this Court comes to the conclusion that the University is not a “State” or “instrumentality of the State” within the meaning of Article 12 of the Constitution of India, the writ petition has to be dismissed. The order dated 18.6.2009, whereby the matter has been remanded to this Court by the Division Bench is quoted below: “This Special Appeal is directed against the judgment and order dated 5th May, 2009 whereby the learned Single Judge of this Court dismissed the writ petition filed by the writ petitioner / appellant. In the counter affidavit filed on behalf of the respondents a clear averment has been made that the respondent – University is not a State or an Authority in terms of Article 12 of the Constitution of India and therefore, writ petition against the same is not maintainable. Actually when we looked at the writ petition, we found that the petitioner / appellant had not laid any factual foundation to the effect that the respondent – University was a State within the meaning of Article -12 of the Constitution of India and was therefore amenable to the writ jurisdiction. Before we could embark upon any exercise to examine the merits of the impugned judgment, we are convinced that the basic issue of maintainability of writ petition vis-à-vis Article -12 of the Constitution of India is required to be decided. Even though, in the counter affidavit filed averments have been made about the Respondent – University not 3 being an Article 12 Institution, the averments seem to be slightly half-hearted because the respondents have not averred any fact about the persuasive control of the State or Central Govt. upon or with respect to the affairs of the Respondent-University. The averments are confined only to the effect that the University does not receive any financial support or grant from the State or Central Govt. A complete picture has to merge before the Court based on clear averments whether the University is an Article -12 Institution or not. 3. For the foregoing reasons we allow this appeal ion the sense, without going into the merits of the impugned order, remand the matter to the learned Single Judge for consideration and adjudication about the aforesaid maintainability aspect of the writ petition only. 4. If the learned Single Judge holds that the writ petition is maintainable, by recording finding to that effect, he shall return this matter to the Division Bench for consideration of the appeal with respect to the merits of the judgment dated 5th May 2009. However, if the learned Single Judge decides that the writ petition in the light of Article-12 of the Constitution of India is not maintainable, against that judgment the writ petitioner shall have the remedy to prefer Special Appeal before this Court, if so advised. 5. The respondents are at liberty to file a supplementary counter affidavit about the 4 aforesaid limited aspect in one week from today, with advance copy to the appellant / writ petitioner, why may file rejoinder affidavit thereto in one week thereafter. 6. The writ petition shall be listed for consideration before the learned Single Judge (S. Dhulia, J.) on 8th July, 2009. 7. Appeal is disposed of in terms of the aforesaid observation.” Heard the arguments of the learned counsels for the petitioner as well as for the respondents. The petitioner was present in person, however, in order to give assistance to the petitioner, the services of Sri Harsh Vardhan Sah was also requisitioned. The main contention of the petitioner is that the ICFAI University (from hereinafter referred to as “the University”) is a “State” within the meaning of Article 12 of the Constitution of India inasmuch as this is a creature of a statute known as “The ICFAI University Act, 2003 (Act NO. 16 of 2003)”. Apart from this, His Excellency Governor of Uttarakhand is the Patron in Chief of the University and one of the members of the Board of Governors is the Secretary, Higher Education of the State. On these grounds, the petitioner alleges that there being the control of the State, which in fact would be deep and pervasive control over the University, the University is “State” within the meaning of Article 12 of the Constitution of India and therefore, the writ petition is maintainable. The cases cited by the petitioner in his favour are: 5 “1. Mohini Jain Vs. State of Karnataka 1992 (2) Judgement Today Page 292 2. K. Krishnamacharyulu Vs. Sri Venkteshwar Hindu College of Engineering & Others reported in 1997 (3) SCC page 571 3. Abuzaid and others Vs. Principal Madarsa Tul Islah Sarai Mir Azamgarh and others reported in 1998 (3) AWC Page 2257 4. Anandi Mukta Sadguru Sri Muktavandas Swami Swarnjayanti Mahotsav Ismarak Trust and others Vs. V.R. Rudani and others reported in 1989 (2) SCC Page 691 5. Poornima Banerjee Vs. Council for Indian School Certificate Examination New Delhi and others reported in 1995 (1) UPLBEC Page 265 6. Arvind Kumar Sharma Vs. Central Board of Secondary Education, New Delhi and others reported in 1996 (2) UPLBEC Page 1331” On the other hand, Mr. A.K. Joshi, Advocate contended that the settled position of law in these matters right from Ramana Dayaram Shetty Vs. International Airport Authority of India [(AIR 1979) SC 1628], Ajay Hasia Vs. Khali Mujib Sehravardi [(1981) 1 SCC 722] and Pradeep Kumar Biswas & Ors. JT 2002 (4) SC 146 is that there are well settled parameters to categorise an authority as a “State” or “ an instrumentality of the State” which would be determined depending upon the control of the State on this body, the control being administrative and financial. Moreover, this control should not be a control of an ordinary nature but the control has to be “deep and pervasive”. According to Mr. Joshi, the control of the State on the University is not 6 of any “deep and pervasive” in nature and therefore, it cannot be categorized as a “State” or an “instrumentality of the State” and as such, the University will not be amenable to jurisdiction of this Court under Article 226 of the Constitution of India. As far as financial control is concerned, learned counsel for the University has pointed out Section 5 of the Act, by which the University has been created. This Act is known as ICFAI University Act (hereinafter referred to as “the Act”). Section 5 of the Act reads as follows: “5. The University shall be self-financing and shall neither make a demand nor shall be entitled to any grant-in-aid or any other financial assistance from the State Government or any other body or corporation owned or controlled by the State Government.” A bare perusal of the Act clearly shows that the University is a self-financing body and has been clearly barred from making any demand for financial assistance either from the State Government or from any other body or corporation owned or controlled by the State Government. Therefore, there is no doubt on the aspect of financial control. There is absolutely no control on this authority by the State. As far as the administrative control is concerned, the learned counsel for the University has pointed out Sections 11 and 12 of the Act. Section 11 and 12 of the Act read as under: “11. The following shall be the officers of the University:- (a) the Visitor; 7 (b) the Chancellor; (c) the Vice-Chancellor; (d) the Pro Vice-Chancellor (e) the Registrar; (f) the Finance Officer; and (g) such other officers as may be declared by the Statutes to be officers of the University. 12. (1) The Governor of Uttaranchal will be the Visitor of the University. (2) The Visitor shall, when present preside at the convocation of the University for conferring degrees and diplomas. (3) The Visitor shall have the following powers namely:-- (a) To call for any paper or information relating to the affairs of the University. (b) On the basis of the information received by the Visitor, if he is satisfied that any order, proceeding, or decision taken by any authority or the University is not in conformity with the Act, Regulations, Ordinances or Rules, he may issue such directions as he may deem fit in the interest of the University and the directions so issued shall be complied with by all concerned.” The powers of visitors have been given under Section 12 (3) of the Act as mentioned above. His Excellency Governor of Uttarakhand is the Visitor of this University. However, the powers which have been given to the Visitor also cannot be called to be “deep and pervasive”. Apart from this, under Section 13 of the Act, the University with prior approval of the Visitor appoints a Chancellor of the University. Undoubtedly the Governor of the State is the Visitor of 8 the University and thus exercises some powers, which have been given to the Visitor. However, the powers vest with the Visitor do not in any way exercise a “deep and pervasive” control on the University. It has also been argued at the bar that the “body of persons” or a “Institute” may be amenable to writ jurisdiction under Article 226 of the Constitution of India even though it may not constitute a “State” within the meaning of Article 12 of the Constitution of India on grounds of any statutory violation by such authority or person, where such a “body” or “institute” has a public duty to perform. It has also been argued that Article 226 of the Constitution of India confers wide powers on the High Court to issue writs in the nature of prerogative rights and words such as “any person” or “authority” used under Article 226 are not confined to statutory authorities and “instrumentality of the State” and they may cover any “person” or body performing public duty. While this argument may indeed be correct, yet this aspect is not being examined by this Court here as this Court is only confined to the aspect as to whether the concerned Institute is a “State” or an “instrumentality of the State” as defined under Article 12 of the Constitution of India as per the order of the Division Bench dated 18.6.2009. Nothing further than this has been examined. However, the petitioner has stated that even if the University may not be a “State” within the meaning of Article 12 of the Constitution of India yet it is definitely a “person” or an “authority” as it is doing a public duty i.e. of imparting education in the State and therefore, on examination of these aspects, the writ petition would be maintainable. Indeed, it has been held by a learned Single Judge of this Court in Ishaan Tyagi Vs. 9 Committee of Management reported in 2007 (1) U.D. 625 that even if an institution does not come within the definition of Article 12 of the Constitution of India, and is not a “State”, yet a writ petition against such an institute will be maintainable if it is performing ‘public duty’ as such an institute would come within the definition of “any person or authority” as given under Article 226 of the Constitution of India. All the same, as it has already been referred above since there is a limited area to be examined by this Court i.e. the maintainability of the petition only on the touchstone of its being a State within the meaning of Article 12 of the Constitution of India, the other aspects have not been examined. To conclude, this Court is of the opinion that the University inspite of being a creature of a statute cannot be called a “State” or an “instrumentality of the State” within the meaning of Article 12 of the Constitution of India as there is no “deep or pervasive control” of the State over this body. The issue is decided accordingly. (Sudhanshu Dhulia, J.) 31.7.2009 Rathour