Pinaki Dhar v. State of West Bengal

the first time in order to establish that the respondent no. 6 namely, Calcutta Institute of Technology is an authority amenable to writ jurisdiction under Article 226 of the Constitution of India.

#15. The institute has raised objection with regard to the disclosure of the said documents for the first time at the appellate stage without satisfying and/or fulfilling the conditions contemplated under Order 41 Rule 3 of the CPC. Nonetheless the Institute filed an affidavit to demonstrate that the said documents would also not justify the filing of the writ as the said institute is not amenable to the writ jurisdiction. In the affidavit in opposition to the writ petition as well as the affidavit in opposition to the supplementary affidavit the institute has disclosed the 7 formation constitution and function of the institute to show that the said institute is not amenable to the writ jurisdiction.

#16. The grounds on which the institute has relied to demonstrate that it is not amenable to the writ jurisdiction are summarised below: a) One Ulubaria Rural Society for Care and Health and Research Development (hereinafter referred to as ‘the Society’) is a registered society of which the respondent no.6 is a limb. The society is the parent body of the institute. The institute is a purely private, unaided, non-government self financed Engineering College which generates its own income and revenue and out of such fund bear all expenses. b) The Approved Process Handbook of 2021-22 issued by the AICTE defines “government aided institution” under Clause 32 as a “technical institution that meets 50 per cent or more of its recurring expenditure out of the grant receipt from the Government or Government Organisation”. A “Government Institution has been defined under Clause 33 as a “Technical Institution” established and/or duly maintained by the Government. A “self financing institution” has been defined in Clause 51 as an institution started by a trust/society/Section 8 Company and does not receive grant/fund from Central/State Government/Union Territory for meeting its recurring expenditure. Society is defined in 8 Clause 52 as a society registered under the Societies Registration Act, 1890.

#17. The list published by AICTE on 21st June, 2021 describes the institute as private self financing. A further list of the West Bengal State Council of Technical and Vocational Education and Skilled Development further describes the respondent institution as self- financed. The State respondent in its affidavit in opposition has admitted that the respondent institute is a private self financing technical institution and the said institute has its own rules and regulations for management of its affairs and has never received any grant or finance assistance from the State Government.

#18. The State respondents before the learned Single Judge as well as in this appeal has reiterated its stand and submitted that the institute is a private college and is not amenable to the writ jurisdiction.

#19. The appellant by disclosing the documents in the supplementary affidavit made an attempt to establish that the CIT has received aids and grants under the PMKVY-T for 3 financial years. The approval letter issued by the AICTE on 14th May, 2004 and the subsequent letter dated 22nd July, 2010 by the Inspector of Colleges, West Bengal University of Technology would show that the institute is required to act in accordance with Clause 8 of the First Regulation to Affiliation dated 27th December, 2002 which would further go to show that the actions taken by the respondent institute being an affiliated college under the 9 WBUT were to be in accordance with Rules and Regulations of the existing parental affiliation including service condition and career advancement scheme guidelines. In referring to the notification on 3rd May, 2000 issued by AICTE, it is now being argued that AICTE recommended the pay scales and service conditions of teachers in Private Self Financed Degree Level Technology Institutions in the country and all the technical institutions have been requested to implement it. This notification according to writ petitions would further go to show deep and pervasive control of the Government of India and State over the service condition of the faculty involved in the said concerned institute. The Regulation issued by UGC dated 28th February, 2014 has been relied upon to show that in terms of Clause

1.2 all colleges offering technical education and seeking affiliation or already affiliated are required to follow such regulations.

#20. The writ petitioner has relied upon the resolutions passed by SCSC on 13th and 15th November, 2018 to show that some other existing faculty members at the relevant point of time approached the SCSC of AICTE complaining non-disbursement of dearness allowance and arrear salary as per the existing AICTE norms in the year 2019.

#21. The traditional approach of source of legal authority exercised by a public authority over a period of time is added with the nature of function of the authority. The “source of power” approach is now considered in addition to the functionality test whereby the nature of 10 function of an authority is also considered to determine susceptibility to writ jurisdiction. The characteristics of the function being performed is a relevant consideration in applying the public law remedy. The public function approach has been applied for judicial review claim to the lawfulness of a decision, action or failure to act in connection with exercise of a public function. It thus, extends to authorities who are primarily non-statutory bodies but are discharging public function and for that purpose the term “public” is usually taken as synonym for “governmental”. They would have been otherwise excluded from the court’s judicial review supervisory jurisdiction if only traditional “source of power” approach were applied.

#22. In the early stages of development of law revolving around the interpretation of the term “other authorities” in Article 12 would show that the courts have interpreted the word ‘authority’ to include all bodies created by a statute on which power are conferred to carry out governmental or quasi governmental functions and “other authorities” wide enough to include within it every authority. If the provision in no uncertain terms show that the “voice is that of the governments and the hands are also of the government”, such “other authorities” were held to be amenable to writ jurisdiction”. The source of power and “the voice and hands” test have formed the basis of deciding enforceability of mandamus against such other authority (see. Rajasthan State 11 Electricity Board v. Mohan Lal, AIR 1967 SC 1857; Sukhdev Singh v. Bhagatram, 1975(1) SCC 421).

#23. In Sukhdev Singh v. Bhagatram (supra) Justice Mathew evolved “the instrumentality test” and proceed to enumerate the following illustrative test which is relevant even today: i. A finding of State financial support plus an unusual degree of control over the management and policies might lead one to characterise an operation as State action. (The control test) ii. Another factor which might be considered is whether the operation is an important public function. If a given function is of such public importance and so closely related governmental functions as to be classified as a governmental agency, then even the presence or absence of State financial aid might be irrelevant in making a finding of State action. (The public function test) iii. The State may aid a private operation in various ways other than by direct financial assistance. It may give the organisation the power of eminent domain, it may grant tax exemptions, or it may give it a monopolistic status for certain purposes. All these are relevant in making an assessment whether the operation in private or savours of State action.

#24. A writ against a Private Education Institution was considered in Executive Committee of Vaish Degree College, Shamli and Ors. Vs. Lakshmi Narain and Ors. reported in AIR 1976 SC 888 which was 12 followed in Vaish Degree College v. Lakshmi Narain, AIR 1976 SC 1073 in these two decisions of the Hon’ble Supreme Court it has been held that a college, even if it is registered under the Societies Registration Act or affiliated to University would not be a statutory body.

#25. A writ against the Private Education Institution would lie only if it can be regarded as a statutory body and as to when a body can be regarded as a statutory one has been explained in paragraph 9 of Vaish Degree College (supra) according to which if an institution owes its existence to a statute it would be a statutory body but if after coming into existence it is governed in accordance with the provisions of the statute the position would be different. It is clearly stated in the said decision that there have been a number of institutions which though not created by or under any statute have adopted certain statutory provisions but that by itself is not sufficient to clothe the institution with a statutory character. The question in such cases to be asked is, if there is no statute would the institution have any legal existence. If the answer in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body. Merely because the institution is governed by certain statutory provisions for the proper maintenance and administration of the institution it would 13 not be considered to be a statutory body. On such reasoning, the Executive Committee of Vaish Degree College registered under the Registration of Co-operative Societies Act and affiliated to the Agra University (and subsequent to Meerut University) was held as not a statutory body and the State or an authority within the meaning of Article 12 of the Constitution of India.

#26. However, the situation would be different where an institute is receiving government aid and the rules governing aid very often required approval of the statutory authority especially in matters relating to termination of services of the concerned employees. In such situation the challenge to the termination order of the statutory authority is amenable to writ jurisdiction as held in Tikaram Vs. Mundikota Shikshan Prasarak Mandal and Ors., reported in AIR 1984 SC 1621.

#27. In Pradeep Kumar Biswas & Ors. Vs. Indian Institute of Chemical Biology & Ors., 2002 (5) SCC 111 the Constitution Bench in upholding the contention that the Council of Scientific and Industrial Research (CSIR) which was a society under the Societies Registration Act, was not a state on the reasoning that if the body is financially, functionally and administratively dominated by or under the control of the government and such control must be particular to the body in question and must be pervasive then such body is a ‘state’ within Article 12 on the other hand, when the control is merely regulatory 14 whether under statute or otherwise it would not serve to make the body a ‘state’.

#28. A private educational institution, even if it is recognized, by or affiliated to, a university, cannot be regarded as an instrumentality of the government for the purpose of Article 12. Recognition is only for the purpose of conforming to the standards laid down by the State. The affiliation is with regard to syllabi in the course of study (see. Unni Krishnan, J.P. & Ors. V. State of Andhra Pradesh & Ors., reported