Case: RAJBIR SURAJBHAN SINGH Vs. THE CHAIRMAN, INSTITUTE OF BANKING PERSONNEL SELECTION, MUMBAI

V. S. S. J. M.S.T. and Ors. v. V.R. Rudani and Ors. (supra) held The term ‘authority? used in Article 226 of the Constitution of India, must receive a liberal meaning unlike the term ?other authorities? in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue Writs for enforcement of fundamental rights as well as non-fundamental rights. The words ?any person or authority? used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or the authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists, mandamus cannot be denied.? 10. This Court in the said judgment also referred to what Professor S.A. de Smith stated in ‘Judicial Review of Administrative Action?, which is as follows: ?T o be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.? 11. In Regina v. Panel on Take-Overs and Mergers, Ex parte Datafin PLC and Another [1987] 1 Q.B. 815 (C.A.) , Lloyd L. J. speaking for the Court of Appeal held that if the duty is a public duty, then the body in question is subject to public law. The distinction must lie in the nature of the duty imposed, whether expressly or by implication. He referred to an earlier judgment in Reg. v. Criminal Injuries Compensation Board, Ex. Parte Lain [1967] 2 Q.B. 864, D.C. where Diplock L.J. held that in addition to looking at the source of power for the purpose of deciding the question pertaining to public law, nature of power is an important facet to decide whether a dispute pertains to public law or private law. 12. There is no manner of doubt that a Writ Petition under Article 226 is maintainable even against a private body provided it discharges public functions. While deciding the question as to whether ICRISAT is amenable to the writ jurisdiction under Article 226, this Court held that it is not easy to define what a public function or public duty is. It can reasonably be said that such functions as are similar to or closely related to those performable by the State in its sovereign capacity, are public functions. The primary activity of ICRISAT is to conduct research and training programmes in the sphere of agriculture, purely on a voluntary basis which according to this Court, is not a public duty G. Bassi Reddy v. International Corps Research Institute (2003) 4 SCC 225 . A private company carrying on banking business as a scheduled commercial bank cannot be termed as an institution or a company carrying on any statutory or public duty Federal Bank v. Sagar Thomas (2003) 10 SCC 733. 13. In K.K. Saksena (supra), this Court observed that the Respondent therein would not be amenable to Writ jurisdiction under Article 226 of the Constitution of India, as the activities were voluntarily undertaken by the Respondents and there was no obligation to discharge certain activities which were statutory or of public character. Reference was made to the Federal Bank case wherein it was held that the Writ Petition was not maintainable under Article 226 of the Constitution of India in spite of the regulatory regime of the Banking Regulation Act and the other statutes being in operation. The relevant questions, according to this Court in K. K. Saksena (supra), to be answered for the purpose of deciding whether a Writ Petition is maintainable under Article 226 are: a)Whether a private body which is a non- governmental organization partakes the nature of public duty or State action? b)Whether there is any public element in the discharge of its functions? c) Whether there is any positive obligation of a public nature in the discharge of its functions? d)Whether the activities undertaken by the body are voluntary, which many a non-governmental organization perform? 14. The Respondent-Institute has been set up for the purpose of conducting recruitment for appointment to various posts in Public Sector Banks and other financial institutions. Applying the tests mentioned above, we are of the opinion that the High Court is right in holding that the Writ Petition is not maintainable against the Respondent. Conducting recruitment tests for appointment in banking and other financial institutions, is not a public duty. The Respondent is not a creature of a statute and there are no statutory duties or obligations imposed on the Respondent. 15. This Court in Federal Bank case held that a Writ Petition under Article 226 of the Constitution is not maintainable against a scheduled bank on the ground that the business of banking does not fall within the expression ?public duty?. As the activity of the Respondent of conducting the selection process for appointment to the banks is voluntary in nature, it cannot be said that there is any public function discharged by the Respondent. There is no positive obligation, either statutory or otherwise on the Respondent to conduct the recruitment tests. For the reasons above, we are of the considered opinion that the Respondent is not amenable to the Writ Jurisdiction under Article 32 or Article 226 of the Constitution of India. 16. We are informed by the learned Senior Counsel for the Respondent that there were four recruitments that were conducted after the year 2013 but that the Appellant did not participate in any of these recruitments. As he did not participate in any of said subsequent recruitments, the Appellant is not entitled to any relief.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is true that the Governor of the Reserve Bank of India and the Chairmen of certain Public Sector Banks along with the Joint Secretary, Banking Division, Ministry of Finance are members of the governing body of the Respondent-Institute. There is no dispute that the Respondent is not constituted under a statute. It is also not disputed that the Respondent does not receive any funds from the Government. The Respondent is not controlled by the Government. The letter dated 20.09.2010 produced by the Appellant along with the rejoinder affidavit does not show deep and pervasive control by the Government of India. The question of whether the Council of Scientific and Industrial Research fell under ‘other authorities? within the meaning of Article 12 was referred to a 7 Judge Bench of this Court. [See: Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Others. (supra)]. Resolving the dispute, the 7 Judge Bench in Pradeep Kumar Biswas (supra) held that the question as to whether a corporation/society would fall within the meaning of Article 12 should be decided after examining whether the body is financially, functionally and administratively dominated by or under the control of the Government. This Court observed that such control should be particular to the body in question and must be pervasive. A control which is merely regulatory under the statute or otherwise would not make the body ‘State? under Article 12. As there is no control by the Government over the Respondent in the manner mentioned above, we have no doubt in our mind that the Respondent cannot be said to be falling within the expression ‘State? under Article 12 of the Constitution of India.The Respondent-Institute has been set up for the purpose of conducting recruitment for appointment to various posts in Public Sector Banks and other financial institutions. Applying the tests mentioned above, we are of the opinion that the High Court is right in holding that the Writ Petition is not maintainable against the Respondent. Conducting recruitment tests for appointment in banking and other financial institutions, is not a public duty. The Respondent is not a creature of a statute and there are no statutory duties or obligations imposed on the Respondent.This Court in Federal Bank case held that a Writ Petition under Article 226 of the Constitution is not maintainable against a scheduled bank on the ground that the business of banking does not fall within the expression ?public duty?. As the activity of the Respondent of conducting the selection process for appointment to the banks is voluntary in nature, it cannot be said that there is any public function discharged by the Respondent. There is no positive obligation, either statutory or otherwise on the Respondent to conduct the recruitment tests. For the reasons above, we are of the considered opinion that the Respondent is not amenable to the Writ Jurisdiction under Article 32 or Article 226 of the Constitution of India.e are informed by the learned Senior Counsel for the Respondent that there were four recruitments that were conducted after the year 2013 but that the Appellant did not participate in any of these recruitments.As he did not participate in any of said subsequent recruitments, the Appellant is not entitled to any relief.