ORDER
1. The petitioner in this writ petition is a serving technical student and was elected to the Roll of Technician Membership of the Institution of Engineers (India) (hereinafter referred to as the said Institution) bearing No. T-115245-2 of the year 1993. The respondent Institution conducts examinations and gives Certificates. The petitioner is a candidate for Section A (Non-Diploma Stream). According to the Rules of the said Institution, applications to appear at Section A (Non-Diploma Stream) Examinations are to be considered from those Technician Members who shall be in the Roll of the Institution for one year before they intended to appear in the Examination unless they are disqualified by the Council. The one year will be based upon the date of election to the Roll as given below:–
Date of Election
Eligible to appear for the first lime in.
1st January to 31st March
Winter Examination SAME YEAR.
1st April to 30th September
Summar Examination Next Year.
1st October to 31st December
Winter Examination Next year.
2. The petitioner being a Technician Member of the Institution since 1993 became eligible to appear in the aforesaid Examination. The syllabus of Examination for each Section of the Institution consists of ten subjects. According to Rule 2.2.3 which is meant for Section A (Non-Diploma Stream) Examination and Rule 2.4.3 meant for Section B Examination are almost identically framed and according to these Rules, a candidate is permitted to appear at an Examination in one or more subjects but not exceeding five subjects at a time (including the subjects in which he appeared previously but failed to secure pass marks which is 50%). Rules 2.2.3 and 2.4.3 are set out below:–
“2.2.3 — A candidate for Section A (Non-Diploma Stream) shall be permitted to appear at an examination in one or mere subjects, but not exceeding five subjects at a time (including the subjects in which he appears previously but failed to secure exemption marks).
2.4.3 — A candidate for Section B Examination shall be permitted to appear in one or more subjects but not exceeding four subjects at a time (including the subjects in which he appeared previously but failed to secure exemption marks). However, in addition to these subjects, a candidate may appear in Mathematics III as an additional subject if he so desires.”
3. According to the aforesaid Rules a candidate can choose at any semester exaip-inations which are held once in Summer and again in Winter any five subjects or any of them and, if he fails in any subject or subjects he could again appear at that or other subjects in the next semester, the choice of subjects being with the student. Thus a candidate can appear at the failed subjects in successive semester examinations and repeatedly.
4. It is alleged that the aforesaid Rules are sought to be changed by new instructions with effect from the Summer 1995 which would result in contravention of the aforesaid Rules, namely, Rules 2.2.3 and 2.4.3 referred to above. The Council of the said Institution at its 570th Meeting under the bye-laws held on 19th September, 1993 resolved that subsequent new Rules would be effective from 1995 Summer Examination. According to the revised Rules, the Examinations of the said Institution would be held twice in a year, generally in May/June and in November/ December as Summer and Winter Examinations respectively in accordance with the programme as given in Appendix XVII. By that Resolution, Rules 2.2,3 and 2.4.3 have been changed as follows:–
“2.2.3 — A candidate for Section A (Non-Diploma Stream) shall be permitted to appear at an examination in one or more subjects (including the subjects in which he appeared previously but failed to secure exemption marks).
2.4.3. A candidate for Section B Examination shall be permitted to appear in one or more subjects (including the subjects in which
he appeared previously but failed to secure exemption marks). However, in addition to these subjects, a candidate may appear in Mathematics III as an additional subject, if he so desires.”
5. The modified Rules clearly indicate that the previous system of choosing subjcts out of the syllabus in the Summer and Winter semesters has been given up and the subjects in which a student can appear in any semester examination are now fixed. A zerox copy of the Memorandum of change in the programme of examination is annexed with the writ petition and marked Annexure “A”.
6. A protest was made against the new system of examination by 234 students in a Memorandum to the Chairman, Calcutta Technicians Chapter I.E.I. Calcutta. A zerox copy of the said protest Memorandum is annexed with the writ petition and marked Annexure “B”.
7. In the Memorandum, it has been stated, inter alia, that by the division of papers in the examination a student is deprived of his choice which is very much vital and necessary for working students of A.M.I.E. They have pointed out in the representation that unless choice was given, the students would face immense problems. Most of the students study Maths-I and Maths-11 simultaneously but students rarely appear in Maths-I, Mechanical Science and Engineering Drawing papers simultaneously because all the papers require vigorous practice and both Maths-I and Mechanical Science have very heavy and extensive syllabus. Thus by the division of papers a student is forced to do what most of the students do not want to do. To the working students this abolition of the benefit of choice is a severe blow.
8. Thus being aggrieved by and dissatisfied with the new programmes and rules made Annexure “A” to the writ petition the petitioner has come before this Court for a writ and/or a direction in the nature of Mandamus directing the respondents to cancel and/or rescind or forbear from giving effect or further effect to the new rules of new programme of the examination and also a writ in the nature of Certiorari directing the respondents to bring up to this Hon’ble Court all the records relating to the present case so that this court can do conscionable justice by quashing the new rules and programmes. They have also prayed that a direction in the nature of prohibition directing the respondents to refrain from abusing jurisdiction vested in them and from giving effect or further effect to the new programme and the new rules till the disposal of the matter.
9. It may in this connection be stated that
when the application was filed in court no
interim order was given but liberty was given
to the petitioner to move the court for interim
relief in future.
10. In the affidavit-in-opposition filed on behalf of the respondent No. 1 it has been stated that the first respondent is not an University nor is it in any way controlled or funded by the State or Central Government. The first respondent is governed by its own bye-laws and regulations. It is not a creature of any statute nor does it depend for its continued existence on any statute. It has no statutory power and its actions are not protected by any statute. The first respondent is not “a State” within the meaning of Article 12 of the Constitution of India. As such the first respondent is not amenable to the writ jurisdiction and no writ application is maintainable against it. The first respondent has denied all the material allegations made in the writ petition and has stated that the change of the bye-laws and the programmes of examination was made in compliance with the rules of the Institution by the accredition Committee of the Institute. The recommendations of the said Committee were placed before the Council of the first respondent at the meeting held on 19th September, 1993 and after prolonged discussion the Council approved the new system of examination for improving the quality and standard of the examinees. It has also been stated that as the Institution does not discharge any statutory or public duty, therefore, the said Institution is not amenable to the writ jurisdiction of this Court.
11. In the affidavit in reply filed on behalf
of the writ petitioner the material statements made in the affidavit-in-opposition have been denied. It has been added that the new system causes harm to the students since it increases the duration of studies and as such the students will be deprived of their scope to appear at examination held by the public Service Commission as the age limit for appearing at such Examination will be crossed by the students. Apart from this other Scholarship Test, National and International, will not be available to the students due to crossing of the age bar, as a result of the new system.
12. When the Learned Counsel, Mr. A.P. Chatterjee for the writ petitioner with the leave granted by this Court earlier moved this court for an interim order as the last date for filling up for the Examination Forms for 1995 Summer Examination is 15th of April, 1995, the Learned Counsel for the respondent No. 1 raised the point of maintainability of the writ petition as a preliminary point. As the affidavits were complete so the maintainability point has been taken up together with the oral prayer for an interim order as submitted by the Learned Counsel for the writ petitioner. The Learned Counsel for both the sides have been heard at length.
13. Mr. Hirak Mitra, Learned Counsel for the respondent No. 1 has submitted that there is a long catena of cases in which several High Courts of this country as well as the apex court of our land have held that unless an authority comes within the ambit of “a State” within Article 12 of the Constitution of India, there is no question of invoking the writ jurisdiction of this court against that authority. The Learned Counsel has in this connection first drawn the attention of this court to an unreported decision of this Court in Matter No. 803 of 1976 (Radha Kanta Samanta v. The Secretary, Ministfy’of Education and others, (Annexure “A” to the Affidavit-in-Opposition) in which the Learned single Judge of this High Court had to decide the question whether the respondent No. 1, namely, the Institution of Engineers (India) was an authority within the meaning of Art. 12 of the Constitution. In that case the petitioner who was an Engineer filed a writ application for quashing the decisions of a meeting of the Council of the Institution held on 3lst May, 1976 on the ground, inter alia, that the Institution was a Statutory Body and/or a Local Body within the meaning of definition of Article 12 of the Constitution of India and a public authority performing public duties within the meaning and definition of the law of the land. The Learned Judge dealt with the genesis of the Institution of Engineers (India) and ultimately came to the decision that the Institution had no external or internal characteristic of an authority within the meaning of Article 12 of the Constitution. It was further held that the Institution was neither created under any statute nor it depended for its continued existence on its statute. It did not discharge any governmental function nor did it administer any public duty. It had no statutory powers and had no power to enforce its decision. The action of the Institution were not protected by any statute.
14. The Learned Counsel for the respondent No. 1 also referred to the decision of a Division Bench of the Allahabad High Court in Ashwani Kumar v. The Institution of Engineers (India) in which same question fell for decision. In that case the petitioner filed a writ petition under Article 226 of the Constitution of India for quashing cartain orders and further for Mandamus directing the respondents to declare the petitioner’s result of Summer Examination held in 1979. It was held by Their Lordships that since the Institution of Engineers (India) does not owe its existence to a statute, being not a Statutory Body, no writ petition under Article 226 of the Constitution lies against it.
15. It was further held, the Institution of Engineers (India) was a body incorporated under the Royal Charter, 1935 containing a grant by the Crown of the U.K. in the Form of Letters Patent under the Kings Signs Manual dated 9th September, 1935. Incorporation by a Royal Charter was the executive and not the legislative function of the King. Being an executive power, it could not be considered to
be law in force within the meaning of Article 372 of the Constitution of India. Thus the Royal charter granted by the Crown was in exercise of the executive function and as such it could not be hit by Article 372 of the Constitution.
16. The Learned Counsel has also referred to the principles laid down in Director, Cultivation of Science, Jadavpur v. Ashok Roy (96 CWN 798), a Division Bench judgment of this court in which it was held that the Indian Association for the Cultivation of Science, Jadavpur is an Association registered under the Societies Registration Act and is dominated by private persons. It is free to accept grants from the Government and is only answerable to the Government concerned in respect of the grants received from them and so long as the said Association receives grants from the Governments, the Accounts were required to be Audited by the Comptroller and Auditor General of India. It is free to apply its income and property towards the promotion of its objectives and implementation of its programmes. There is no provision that the said Association has to comply with the directions issued by the Central Government in that behalf. The Association is free to dispose of its movable and immovable properties and obtain loans which makes it clear that there was no absolute control of the Central Government over the affairs of the said Society. Such being the position, it cannot be held that the Central Government is functioning through the Society. The word “State” or “Instrumentality” of the State means that the Government is functioning, though it is in the form of a Society or a Co-operative Society or a Company and this is a decisive factor for the purpose of determining whether it is an authority under Article 12 of the Constitution of India or not.
17. It was also held that the Indian Council for the Cultivation of Science is not an authority within the meaning of Article 12 of the Constitution and it was only an Autonomous Body independent to carry on its affairs under its bye-laws and regulations. Whatever may be the form of the Body concerned, what is relevant is the nature of the duty imposed. If the duty imposed upon the authority is public in nature, a writ in the nature of Mandamus would lie for the purpose of fulfilling ,its public duties and/or responsibilities. Mandamus does not lie to enforce private duties and/or private obligations.
18. The Learned Counsel for the respondent No. 1 has also referred to the principles laid down in Shri Anupum Ghosh v. Union of India (Cal LT 1991 (1) HC 300), in which a Division Bench of this High Court was seized with the same question. In that case the writ petitioner who was the earstwhile Finance Director of Andrew Yule & Co. Ltd. a Government Company contended that the Company was a State within the meaning of Article 12 of the Constitution and the order of termination of service was mala fide and as such appropriate relief should be granted to the writ petitioner. The Learned single Judge dismissed the application. Thereafter an appeal was preferred and the Learned Division Bench dismissed the appeal holding, inter alia, that the Constitution Bench of the Supreme Court in Ajoy Hassia’s case has held that a Corporation may be a Statutory Corporation created by a Statute or it may be a Government Company or a Society registered under the Societies Registration Act but whatever may be its genetical origin, it would be “State” under Article 12, if only it becomes an agency or instrumentality of the State on a consideration of various relevant factors indicated therein. It was held in that case that the Company was not a “State” within the meaning of Article 12 of the Constitution.
19. The Learned Counsel has also referred to the principles laid down in a Full Bench decision of the Bombay High Court in Shamrao Vithal Co-operative Bank v. Padubidri . In that case it was held that the manner in which an origanization is created is not of any direct relevance. What is required to be seen is whether there is pervasive State control over its Management and functioning. Moreover, merely because an Organization performs functions of public importance, it cannot be
held that the organization is “State” under Article 12. The regulatory laws are enacted to cover a large number of organizations. The laws which regulate the functioning for such organizations are presumably incorporated in public interest. This does not mean that any of these organizations, if they perform public function, automatically become “State” under Article 12 of the Constitution.
20. It was further held, every organization which carries out a function which is of public importance does not necessarily becomes “State” under Article 12. Confirment of “State hood” depends upon various other factors also, such as the nexus of such organizations with the “State”, the extent of State control, whether it is entirely financed by the State or by private individuals, whether the same function was originally carried out by a Department of the State and so on. There may be many functions of public importance which can be performed by private organization also. Their Lordships of the Bombay High Court in paragraph 6 of the reported decision referred to the principles laid down in Ajoy Hassia’s case, (supra). In paragraph 6 of the reported judgment at page 93 it has been held as follows:
“6. In the case of Ajoy Hassia v. Khalid Munjib Sehravardi, , the Supreme Court reiterated the test laid down in the case of Ramana Dayaram Shetty v. The International Airport Authority of India (supra) with a note of caution. It said (in paragraph 9 at page-496) “….. while
pressing the necessity of a wide meaning to be placed on the expression other authorities,” it must be realised that it should not be stretched so far as to bring in every Autonqmous Body which has some nexus with the Government within the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. The Supreme Court said that it is immaterial whether the Corporation is created by a statute or under a Statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created.”
21. In this case it was also held that the Co-operative Bank could not come under the expression “State” under Article 12 of the Constitution though some functions of the organizations were of public importance.
22. The Learned Counsel for the respondent No. 1 has also referred to the principles laid down in an unreported judgment in Shri Kaka Singh Ramji v. The Council of Institution of Engineers (India) and others of the Punjab and Haryana High Court at Chandigarh in Civil Rule No. 4174 of 1973 (vide Annexure “A-1” of the A/O). In that case the writ petitioner was expelled from the Institution under the provisions of bye-law 43 for some alleged misconduct in examination. The petitioner challenged the aforesaid order of the Institution of the Engineers (India). The preliminary objection was raised by the Learned Counsel for the respondent to the effect that the Institution was not an authority under Article 12 of the Constitution. His Lordship was pleased to hold that the petition was not maintainable against the Institution of Engineers (India) which was not a “State” within Article 12 of the Constitution.
23. The learned Counsel for the respondent No. 1 has also relied upon the same principles as laid down in Ajoy Hasia’s case, and reiterated in (Chander Mohan Khanna’s case).
24. Mr. A. P. Chatterjee, Learned Counsel for the writ petitioner in his usual fairness has submitted that the Learned Counsel for the other side has been fair to place all the relevant decisions on the point before the Court. Mr. Chatterjee, Learned Counsel for the writ petitioner has submitted that the true golden thread going through the plethora of decisions cited by Mr. Hirak Mitra, learned Counsel for the other side is that, if any essential function of the “State” is exercised through the instrumentality of the authority concerned then the authority is a “State” within Article 12 of the Constitution, no matter whether it is created by a Statute or under a Statute, whether it is funded by the Government or not, whether it is controlled by the Government or not. The Learned Counsel has banked upon the principles laid down in Ajoy Hasia’s case, (supra). The Learned Counsel has first drawn
the attention of the Court to the observations made by their Lordships in paragraph 7 of the reported decision at page 492. After making an elaborate discussion of the principles involved in question as to what are the “other authorities” contemplated in the definition of “State” in Article 12, their Lordships have held that where a Corporation is an instrumentality or agency of the Government it must be held to be an authority within the meaning of Article 12 and hence subject to the same basic obligation to obey the fundamental right as the Government.
25. It has been further held by their Lordships in that case it is immaterial for determining whether a Corporation is an authority whether it is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The enquiry has to be not as to how the juristic person is born but why it has been brought into existence. The Corporation may be a Statutory Corporation created by a statute or it may be a Government Company or a Company formed under the Companies Act or it may be a society registered under the Societies Registration Act or any other similar statute. Whatever be its genetical origin it would be an “authority” within the meaning of Article 12, if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a Corporation created by a statute but is equally applicable to a Company or a society and in a given case it would have to be decided on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of expression “authority” in Article 12.
26. Mr. Chatterjee, Learned Counsel has not addressed the Court on any other point. He has not gone into the material paragraphs of the writ petition, affidavit-in-opposition and affidavit-in-reply having a positive bearing upon the relevant factors.
27. From a perusal of the writ petition as a whole it is found that there is no assertion about the relevant factors which would render the apparently non-statutory authority of the respondent No. 1, an authority within Article 12 of the Constitution.
28. The Learned Counsel for the respondent has drawn the attention of this Court to paragraph 3 of the affidavit-in-opposition filed on behalf of the respondent No. 1 which has been covered by paragraph 4 of the affidavit-in-reply. It runs as follows:–
“4. In regard to paragraph 3 of the writ petition, I state that its first two paragraphs are matters of record. The rest are denied, particularly the contention that the writ doet not lie is strongly disputed. The paragraph I of the said petition is within the meaning of “other authorities” in Article 12 of. the Constitution of India.”
29. In the 2nd para of paragraph 3 not denied, it has been stated as follows:–
“The first respondent is not an university in any way/it is not Government aided. It does not receive any grant from the Government for the Institution/its resources are chiefly subscription from the members. The, first respondent is governed by its own bye-laws and regulations which defined the Constitution of the respondent.”
30. It is clear from above that the contention of the respondent No. 1 that it is not Government aided and that its resources are private resources and that it is governed by its own bye-laws and regulations are not denied.
31. From Annexure “A” to the affidavit-in-opposition, i.e. an unreported judgment of this Court in Radha Kanta Samanta’s case, it appears that the Institution consists of Honorary corporate and non-corporate members. Among its Members, there is no ‘ Government nominee or any one having any nexus with the Government directly or indirectly. The Council consists of the president, the past two Presidents, the Chairpersons of the local Centres, a Corporate Member of each of the local Centres elected by the Corporate Members, Additional
Corporate Members etc. etc. There is no official representative or any one having any connection with the Central or State Government. The Council elects its President from among the Members of the Council excluding the past-President and the chairpersons of the local centres. It is obvious that prima facie there is no administrative or financial or any other control over the affairs of the Institution of Engineers (India) by the State or Central Government or any official agency in any manner whatsoever. This fact stands unchallenged. The only point which has been hammered by the Learned Counsel for the writ petitioner is that the Institution is giving degrees or certificates and these are equivalents to the degrees given by recognised Government Engineering Colleges and other recognised Institutions. These are pass-ports to getting jobs in the public offices and other concerned establishments so in a sense, granting of degrees or certificates which is an essential function of the State organ is exercised by the respondent No. 1, therefore, it comes within the meaning of the expression ‘the State’ under Article 12. Unfortunately, this argument of the Learned Counsel does not hold water. First, the Institution does not confer any degree. It only gives some certificates. The students are working techanical students. They join the Institute only for acquiring proficiency certificates for brightening their career prospects. There is no statutory requirement anywhere that unless they acquire the proficiency certificate from the Institute they cannot get an entry into the service anywhere. Working technical students are free to join or not to join the Institute and to offer themselves for examination conducted by the Institute. The only purpose of the Institute in holding the professional examination is to maintain a high professional standard in the work culture of the country. Institute is governed by its own bye-laws and regulations. It is not a creature of statute. Its functions are not controlled either directly or indirectly by the Government in any manner whatsoever. It does not receive any funding from the Government. It may be that by its contribution towards the national effort in maintaining a high professional standard for engineers and technicians; it is discharging a public duty as a private social organisation. But that fact itself is not sufficient to bring it within the folds of the expression a “State” under Article 12 of the Constitution. This is in keeping with the principles laid down in the Constitution Bench decision of the apex Court Ajoy Hassia’s case, (supra) as also the cases sited by the Learned Counsel for the respondent No. 1 referred to above. Moreover, this Court does not find any reason to differ from the view taken by the Hon’ble Judges of this Court and other High Courts taken on the point whether the Institution of Engineers (India) is an authority coming under the expression a “State” under Article 12 of the Constitution.
32. Thus considering the myriad aspects of the case, I am convinced that in the facts of the case it must be held that the respondent No. I is not an authority coming under Article 12 of our Constitution as a “State”. Therefore, the writ petition is found not to be maintainable.
33. In this view of the matter, it is needless to go into the question whether the petitioner is entitled to get an interim order of injunction in this case. The matter is, accordingly, disposed of. No order is made as to costs.
34. Signed copy of the operative portion of the order be given to the learned lawyers of both sides.
35. Order accordingly.
