JTTENDRA KUMAR YADAV Vs. UNION OF INDIA

JUDGEMENT

(1.) the petitioner in this case was a second year student with the b.s.f. institute of technology at Bangalore. In the month of February 1995 certain serious incidents took place in that institute wherein, a lot of violence was let loose and some damage to property took place but more importantly at least four of the students sustained injuries of some consequence. I do not need to recount the background to this incidence because it is unfortunate that such violence was let loose and that too in an institute of this type and the authorities therefore, very rightly decided to take serious steps not only against those responsible for it but for purposes of ensuring that such incidents do not recur. It is in this background that an order came to be passed whereby the present petitioner and three others were rusticated from the institute on the ground that they were the main participants in the incident that took place. Certain punishments were also awarded to several other students but we are not immediately concerned with that aspect of the matter. The petitioner has challenged the action taken against him through the present petition and the usual plea is that there has been a flagrant breach of the principles of natural Justice in so far as it is contended that on the one hand there was no material to justify the action and secondly that the authorities have not followed the due procedure prior to taking such a serious step. I am informed that under the interim orders of this court, the petitioner was permitted to appear for his second year examination which he has done and the results of that examination have been withheld. Despite a strong plea made by the petitioner's learned Advocate this court did not grant any interim relief permitting the petitioner to rejoin the course even under orders of the court because this was strongly opposed by the authorities on the ground that it may be misunderstood as setting a premium on gross indiscipline. The petitioner was therefore out of the institution and the petition was taken up for out of turn hearing in so far as his learned Advocate has pointed out that he is undergoing grave hardship and that the consequences to his career are very far-reaching and that therefore the court should adjudicate on the case at the very earliest point of time.

(2.) at the hearing of this petition, on behalf of the respondent sa preliminary objection was raised with regard to the maintainability of this petition. It was contended that no writ would lie in so far as the institution in question is registered under the societies Registration Act, that it is not either set up nor is it funded or controlled by any governmental authority and that consequently, the acts of the authorities who run that institution are not amenable to the writ jurisdiction. The respondents learned Advocate submitted that by no test could the institution come within the definition of state within the meaning of article 12 of the Constitution nor could it come within the wider ambit of the expression instrumentality of state. Learned Advocate drew my attention to the various principles that have been culled out by the courts over the years and she submitted that if the structure, set up and running of the institution were to be examined in this background, that it will have to be held that no writ can lie against this institution or those who are running it. Reliance was sought to be placed on one decision of the supreme court in tekraj vasandi alias k.l. basandhi v union of India and others . That case related to the institute of constitutional and parliamentary studies and the Supreme Court had occasion to hold that it was not permissible to categorise it as state within the meaning of article 12. Even though the designation of the institute suggested otherwise, the court held that it was a voluntary organisation and that right from the inception, it was not a governmental organisation and that consequently, a writ would not lie in respect of any grievance against that body. Learned Advocate submitted that even if it is shown that some grants are given to this institute by the government, that this would not bring it within the ambit of article 12 and her argument was that educational institutions including private educational institutions often receive grants from the government for purposes of furthering the objective of imparting education but that this does not change the character of the institution. In sum and substance, it was contended that the petition is not maintainable and that it is liable to fail on this ground.

(3.) the petitioner's learned Advocate had obviously anticipated this objection. It has been pointed out in the petition that it is an institute which has been exclusively set up to impart specialised education to the children of the members of the b.s.f. it is contended that even though the institute is not officially managed by the ministry of defence, that the balance sheet of the institute will show that it does receive substantial grants from the ministry of home affairs. I must mention here that a certificate was produced on behalf of the respondents which is on record which stated that the institute is not funded by the defence ministry, as much as Rs. 45 lakhs per year comes from the ministry of home affairs. The finances of the institute are such that the bulk of the money required for running the institute comes from this source though a small amount is contributed by the b.s.f. jawans from whom a token reduction is made every month from their salaries. Further more, the appellant's learned Advocate drew my attention to the fact that the governing body of the institute consists of various officials all of whom are government officials in their official capacity and not in their individual capacity. He submitted that having regard to the various tests that the courts applied for purposes of lifting the veil to institutions of this type, that the court will have to ascertain as to whether the institute is basically or to a large extent funded by the government and whether it comea under the overall supervision and control of the state. As far as these two tests are concerned, it is his submission that the facts are abundantly clear to illustrate that under the extended definition of state within the meaning of article 12 of the Constitution as has now emerged after various decisions starting from the case of ajay hasia v khalid mujib sehravardi and others that this court will have to brush aside the preliminary objection and hear the petition on merits.