ARUN KUMAR Vs. ICFAI UNIVERSITY AND OTHERS

JUDGEMENT

(1.) THIS writ petition was earlier disposed of by order dated 5th May, 2009. The peti­tioner is a student of ICFAI University and was caught using unfair means in the ex­amination, and therefore as a punish­ment, he was debarred for one semester. This order was challenged by the peti­tioner by means of a writ petition. This writ petition was disposed of on merits as there was no worthwhile objection by the respondents as to the maintainability of the writ petition. The writ petition was in fact dismissed. All the same, the order dated 5th May, 2009 was challenged by the petitioner in a Special Appeal No. 97 of 2009 and consequently vide order dated 18th June, 2009 of the Division Bench, the matter has been remanded to this Court. In pursuance of order dated 18.6.2009 what has now to be examined by this Court is as to whether the ICFAI University can be called a "State" or an "instrumentality of the State" within the meaning of Article 12 of the Constitution of India and if it is so, the matter has to be referred back to the Division Bench but in case, this Court comes to the con­clusion that the University is not a "State" or "instrumentality of the State" within the meaning of Article 12 of the Consti­tution of India, the writ petition has to be dismissed. The order dated 18.6.2009, whereby the matter has been remanded to this Court by the Division Bench is quoted below :

(2.) HEARD the arguments of the learned counsels for the petitioner as well as for the respondents.

(3.) ON the other hand, Mr. A.K. Joshi, Advocate contended that the settled po­sition of law in these matters right from Ramana Dayaram Shetty Vs. Interna­tional Airport Authority of India [(AIR 1979) SC 1628], Ajay Hasia Vs. Khali Mujib Sehravardi [(1981) 1 SCC 722] and Pradeep Kumar Bisiuas and Ors. JT 2002 (4) SC 146 is that there are well settled parameters to categorise an au­thority as a "State" or " an instrumental­ity of the State" which would be deter­mined depending upon the control of the State on this body, the control being administrative and financial. Moreover, this control should not be a control of an or­dinary nature but the control has to be "deep and pervasive". According to Mr. Joshi, the control of the State on the University is not of any "deep and per­vasive" in nature and therefore, it cannot be categorized as a "State" or an "instru­mentality of the State" and as such, the University will not be amenable to juris­diction of this Court under Article 226 of the Constitution of India. As far as finan­cial control is concerned, learned coun­sel for the University has pointed out Section 5 of the Act, by which the Uni­versity has been created. This Act is known as ICFAI University Act (herein­after referred to as "the Act"). Sec­tion 5 of the Act reads as follows :