ARUN KUMAR Vs. ICFAI UNIVERSITY

JUDGEMENT

(1.) 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.

(2.) 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-a-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 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 emerge before the Court based on clear averments whether the University is an Article-12 Institution or not.

(3.) 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.