RAJ KUMARI GUPTA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE question arising for consideration in this case is, is Maharaja Hari Singh D.A.V. Public School a "State" within the meaning of Art.12 of the constitution for being amenable to writ jurisdiction of this Court? The constitution to an extent defined the word 'State in Art 12 itself as including: - "the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within The territory of India or under the control of the Government of India."

(2.) THE 'inclusive definition is generally not exhaustive, is a statement of the obvious and as far as Art.12 is concerned, has been held so in Ujjan Bai v. State of U.P., (1963) 1 SCR 778. The words 'State and 'authority remain to be used in Art.12 in general context and the content and scope of which has been and is being supplied by the courts. In the series of the judgments of the Supreme Court the latest one is a seven judge constitution Bench decision rendered in Pardeep Kumar Biswas and Ors v. Indian Institute of Chemical Biology, JT 2002(4) 146. Their lordships, after taking notice of the important decisions on the subject including Sukhdev Singh and Ors v. Bhagat Ram Sardar Singh Raghuvanshi and Ors, 1975 (3)SCR 619, Ramana v. International Airport Authority of India, AIR 1979 SC 1620 and Ajay Hashia v. Khalid Mujib Soharavardhi, 1981 SCC 722 held as follows: - "25.The court recognized that: ....Obviously the society cannot be equated with the Government of India or the government of any state nor can it be said to be a local authority and therefore, it must come within the expression "other authorities" if it is to fall within the definition of State." But it said that: The courts should be anxious to enlarge the scope and width of the Fundamental Rights by bringing within their sweep every authority which is an instrumentality or agency of the Government or through the corporate personality of which the government is acting, so as to subject the government in all its myriads activities, whether through natural person or through corporate entities, to the basic obligation of the Fundamental Rights."

(3.) AFTER noticing further the cases in which tests formulated in Ajay Hashias case had been applied for finding out as to whether or not the particular institution was State within the meaning of Art.12, their lordships observed: - "39. Perhaps this rather over - enthusiastic application of broad limits set by Ajay Hashia may have persuaded this Court to curb the tendency in Chander Mohan Khanna v. National Council of Education Research and Training and others, 1991 (4) SCC 578. The court referred to the tests formulated in Sukhdev Singh, Ramana, Ajay Hashia, and Som Parkash Rekhi but striking a note of caution said that 'these are mere indicative indicia and are by no means conclusive or clinching in any case. In that case, the question arose whether the National Council of Education Research(NCERT) was a 'state as defined under Article 12 of the constitution. The NCERT is a society registered under the Societies Act. After considering the provisions of its memorandum of association as well as the rules of NCERT, this Court came to the conclusion that since NCERT was largely an autonomous body and the activities of the NCERT were not wholly related to governmental functions and that the government control was confined only to the proper utilization of the grant and since its funding was not entirely from government resources, the case did not satisfy the requirements of the State under Article 12 of the constituion.The court relied principally on the decision in Tek Raj Vasandi @ K.L.Basandhi v. Union of India (supra).However ,as far as the decision in Sabhajit Tewary v. Union of India (supra) was concerned, it was noted that "the decision has been distinguished and watered down in the subsequent decisions." 39. Fresh of the judicial anvil is the decision in the Mysore Paper Mills Ltd. v. The Mysore Paper Mills officers Association, JT 2002 (1) SC 61, which fairly represents what we have seen as a continuity of thought commencing from the decision in Rajasthan Electricity Board in 1967 upto the present time. It held that a company substantially financed and financially controlled by the Government, managed by a board of directors nominated and removable at the instance of the government and carrying on important functions of public interest under the control of the government is 'an authority within the meaning of Article 12). 40.The picture that ultimately emerges is that the tests formulated in Ajay Hashia are not a rigid set of principles so that if a body falls within any one of them it must, ex -hypothesi, be considered to be a state within the meaning of Arrticle 1.The question in each case would be -whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a state within article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a state."