JUDGMENT 1. - Since the above mentioned three writ petitions involve similar questions of law and facts, they are being disposed of by this single order. These three writ petitions are directed against Birla Institute of Technology & Science, Pilani. The petitioners in these writ petitions prayed for issuance of a writ, order or direction for declaring that the orders dated 27th May, 1987 and 30th May, 1981 are null and void and the same may be quashed and set aside with the directions that the petitioners may be allowed to continue in 'A' Group. 2. Briefly stated the facts of the case are that the Birla Institute of Technology and Science (hereinafter referred to as BITS) was founded as an All India Institute for higher Education to provide for and otherwise promote education and research in the fields of Technology, Science, Humanities, industry, Business and Public Administration and to collate and disseminate in such fields effective ideas, methods, technique and information as are likely to promote the material and industrial welfare of India and to train young men and women able and eagre to create and put into action such ideas, methods, techniques and information It is further stated that in the year 1964. The Ministry of Education. Government of India issued a Notification No. F. 12/23/63'- dated 8th June, 1964 which was published in the Gazette of India. Part I, Section 1 under Sec 3 of the University Grant Commission Act, 1956, whereby the Central Government, on the advise of the Commission declared BITS as an Institution of Higher Education deemed to be a University for the purpose of the said Act. The Notification was published in the Gazette dated 27th June, 1964. The Notification is reproduced below : "MINISTRY OF EDUCATION New Delhi, the 18th June, 1964. No. F. 12-23/63-U2-In exercise of the powers conferred by Section 1 of the University Grants Commission Act, 1956 (2 of 1956, the Central Government, on the advise of the Commission, hereby declares that the Birla Institute of Technology and science, Pilani, which is an institution for higher education, shall be deemed to be a University for the purposes of the said Act, Sd /- G. K. Chandiramani Joint Secretary" 3. It is further mentioned in the writ petition that BITS is a member of Association of Indian Universities and only a University can become the member of the Association of Indian Universities. BITS award its degrees. It is run by public money and the grants given by the University Grants Commission. A sum of Rs. 32 lacs has been recently given to BITS by the University Grants Commission. It is also contended by the petitioner that BITS is a society registered under the Societies Registration Act. The Government of India has the right to enquire or to make the enquiries into all the affairs of the BITS. Its management is also run by the Government of India nominees, nominees of the Rajasthan University, Technical Education nominees etc. The Chairman of BITS is elected from amongst the members of the Board of Governors, subject to the approval of the Government of India BITS is governed by its Academic Regulations. Regulations No. 17 and 18 are reproduced as under : "17. A copy of the report of the Board of Governors on the work of the Institute during the previous year together with the audited statements of accounts and budget estimates shall be submitted to the Central Government. 18. Power of the Central Government to review working:- The Central Government shall have the right to cause an inspection to be made of the Institute, its building, laboratories its examinations, teaching and other work conducted or done by the Institute; and to cause an enquiry to be made, if considered necessary by the Central Government in respect of any matter connected with the Institute. The procedure for inspection as also the enquiry referred to above shall be determined by the Central Government after consulting the Institute." 4. It is, thus, submitted by the petitioners that BITS is a State or 'other authority' within the meaning of Article 12 of the Constitution. BITS imparts education in the disciplines on the basis of performance in 10+2 examination. BITS selects candidates for various disciplines. The petitioners applied for engineering discipline and had also applied for the courses of M.Sc. On the basis of petitioner's merit, he was selected for A Group and admitted to ID A2 i.e. B.E. (Hons) Civil in the academic year of 1984 in the second semester of the academic year 1984. 5. BITS selects candidates for various disciplines. The petitioners applied for engineering discipline and had also applied for the courses of M.Sc. On the basis of petitioner's merit, he was selected for A Group and admitted to ID A2 i.e. B.E. (Hons) Civil in the academic year of 1984 in the second semester of the academic year 1984. 5. Petitioner Ajai Kumar Singh was selected for A group and admitted to ID A2 i.e. B.E. (Hons) Civil in the academic year of 1984. Petitioner Sudhir Ranjan Singh was selected to A Group i.e. as i.e. B. Pharma (Hons) and since then i.e 1st August, 1985, he is prosecuting the course of B. Pharma (Hons). The petitioners were called upon to come out with expected grades in the respective courses for 2nd Semester of 1986-87, for first arid second semester of the year 1986-1988, the first and second semester of 1988-89 and for the first and second semester of 1989-90. The petitioners gave out the expected grades and copies of the same were sent to the petitioners' parents by the BITS vide memo dated 11th January, 1987, along with the grade-sheets. It may be stated here that petitioner Sanjay Kumar Singh. out of 45 courses offered himself for 24 courses and cleared 21 courses. Petitioner Ajay Kumar Singh, out of 45 courses offered himself for 17 course and cleared 13 in 4 semesters. Petitioner Sudhir Ranjan Singh, who was initially selected for 'B' group i.e. Science in the second semester of 1984, at the end of 2nd Semester of 1984, on the basis of his performance was selected for as Group i.e. for the degree of B Pharma (Hons) and since 1st August, 1985, he has been prosecuting his studies in A5 Group for B. Pharma (Hons.) under dual degree scheme. It is an admitted case of the petitioners that they were asked to give expected grades and that they could not get the expected grades i.e cumulative grade point average (CGPA). However, the complaint of the petitioners is that the BITS does not follow a regular and consistent practice in this regard and acts in an arbitrary manner and policy of pick and choose has been adopted. There were other students from whom such expected grades were not at all sought. It is also submitted by the petitioners that the expected grades were taken from the following students : 1. There were other students from whom such expected grades were not at all sought. It is also submitted by the petitioners that the expected grades were taken from the following students : 1. Shri J.N. Mahapatra 2. Shri K.S. Kumar 3. Shri Dinesh Kumar 4. Shri Veenit Mishra 5. Shri B.K. Tripathi 6. Shri Prem Chand Valeti 7. Shri V. Nagarjun 8. Shri Venkata Sai Singa Raju 9. Shri Venkateshwar Rao 10. Shri K. Sampath Phani Kumar 6. Out of the aforesaid 10 students, no one was able to get the expected grades as were given by them, yet an exception has been made in the case of the petitioners and they have been singled out by the respondent in a pick and choose manner. Petitioners' further case is that they appeared in the 2nd Semester of the year 1986-87. But the grades awarded in this examination have not been declared although examinations bad taken place in May, 1987. A letter dated 27th May, 1987, was sent to the petitioners informing them that they should either discontinue from BITS or seek transfer to any of the programmes. The petitioners were not agreeable either to discontinue or for transfer of discipline and, thus aggrieved by the letter dated 27th May, 1967. They have preferred these writ petition. 7. In the writ petitions, they contended that they had been selected for Group A and, as such, there is no question of asking them either to discontinue or to seek transfer to Group C. The petitioners further alleged that the BITS is acting arbitrarily and adopting the polity of pick and choose, inasmuch as the less meritorious and the candidates having lesser CGPA have been allowed to continue in group 'A', while the petitioners have been asked to discontinue or to seek transfer and in this way, it is a case of glaring and hostile discrimination. 8. A show cause notice was given to the respondent as to why the writ petitions should not be admitted and allowed. In pursuance of the notice, the respondent filed return contending that the BITS is not an agency or instrumentality of the Government of India. The BITS has denied that it is run by public money and the grants given by the University Grants Commission, though it has admitted that it is a society registered under the Rajasthan Societies Registration Act, 1958. The BITS has denied that it is run by public money and the grants given by the University Grants Commission, though it has admitted that it is a society registered under the Rajasthan Societies Registration Act, 1958. BITS has denied that the Government of India has right to enquire or to make enquiries in its affairs. As regards grants, it is contended by the BITS that the institute does not receive any regular maintenance grant, but receives only occasional developmental grant. In the reply, the BITS has denied the other allegations made by the petitioners in the writ petitions It is submitted by the respondent that all student records, including grades in various courses mess accounts, admission etc. are computerised, At the end of every semester a computer analysis of the grades obtained by the students in various courses is carried and and the computer points out a list of academically poor students mentioning against each the the sub clauses of clause 502 of the Academic Regulations in which they have not come upto the minimum required performance. The progress of the students is monitored by the Academic Counselling Board under Clause 5 of the Academic Regulations (hereinafter referred to as ACB), which prescribes packages for registration for each of these students and monitors their progress till they are declared out of the purview of ACB. It is also submitted by the respondent that at the beginning of 2nd Semester, 1986-87. 15 students were on probation due to their continued poor performance out of whom two never came for registration and all the remaining 13 were asked to give a semester-wise programme for the next few semesters or till they graduate. The petitioners were one of these 13 cases who were on probation and were, therefore, asked to submit their semester-wise programme. Computer calculates CGPA on the basis of the grades obtained by the student in various courses that he clears in each semester. In each course, a student can get one of the letter grades - A, B, C, D and E, which have relative weightage of 10,8 6,4 and 2 respectively. Each course has also certain number of units assigned to it. In each course, a student can get one of the letter grades - A, B, C, D and E, which have relative weightage of 10,8 6,4 and 2 respectively. Each course has also certain number of units assigned to it. To arrive at CGPA for any student at any point of time the number of units is multiplied by the weightage of the corresponding letter grade, the products are added and the sum divided by the total number of units cleared so far The resultant is known as CGPA and varies from 10.00 to 2.00. Besides, the letter grades students also get NC Report in some courses, which means 'not cleared'. This shows that the student never applied himself to clear that course and did not give the instructor sufficient opportunity to evaluate him. The student is required to repeat this course till he gets a valid grade in it. If a student gets E grade, it is considered to be poor performance and is a stigma on the student. The petitioners were first put on probation on 13th January, 1986, after they failed to improve even after remaining for one semester under the purview of the ACB. For the next two Semesters after they were put on probation, they still could not fulfil the stipulations of the undertaking given by them on 13th January, 1986. It is further submitted by the respondent that the petitioners could have been asked to seek transfer or quit the Institute at that point of time itself. In fact, an extra chance was given to them to continue in their programme by giving them another undertaking on 13th January, 1987, according to which they were asked to give semester-wise programme. 9. As regards the case of Sanjay Kumar Singh, it was submitted by respondent that he has not cleared even one of the courses of his second semester (2nd Semester 1983-84) even in his 8th Semester (2nd semester of 1986-876. The petitioner took 6 courses in first semester 1983-84, out of which he got E grade in four of the courses and NC report in the remaining two. His CGPA at the end of the semester was 2.00. His CGPA at the end of the semester 1983-84 was 263 and be got E Grade. In the 2nd Semester 1984-85 again he got E Grade and one NC and his CGPA was 269. His CGPA at the end of the semester was 2.00. His CGPA at the end of the semester 1983-84 was 263 and be got E Grade. In the 2nd Semester 1984-85 again he got E Grade and one NC and his CGPA was 269. In the rid Semester, 1985-86, he got E Grade in two courses in which he got E grade also and his CGPA' at the end of the semester was 406 in summer term 1985-86. The petitioner registered in Practice School I and his CGPA at the end of Summer Term was 4.80. In 2nd Semester 1986-87, the petitioner took seven courses, two of them being repeats. He got 4 E Grades in this semester and also got an NC report in a course in which he had obtained E grade earlier. His CGPA coming down to 4.17. It is, thus, submitted that the petitioner should have cleared all the 45 courses, whereas he had actually cleared only 21 courses, which is less than even half of the total number of courses he should have cleared. It is further stated that if he continues at this rate he will never be able to complete his degree programme in six years which is normally the upper time permitted the BITS for a student whose programme requires four years for completion. It was, as a matter of fact, to save the petitioner from his ultimate disaster and with an idea to rehabilitate him 'ACB' recommended to him to seek a transfer to one of the specified less exacting C Group programmes so that he could still get a BITS degree within the time limit permitted by the Academic Regulations of the BITS, Similar averments have been made with regard to the other petitioners, in the replies filed to their writ petitions. 10. It is also submitted by the respondent that after receipt of the letter, referred to above, the petitioners assured that they will try to improve their performance and when they again failed to improve their performance, they were again sent a memo and a copy of the same was sent to their parents. 10. It is also submitted by the respondent that after receipt of the letter, referred to above, the petitioners assured that they will try to improve their performance and when they again failed to improve their performance, they were again sent a memo and a copy of the same was sent to their parents. The petitioners then requested the ACB to give them more time to improve their performance and it was when ultimately, even after completion of 8 semesters (second semester 1986-87) they could not improve the poor performance, the decision regarding the order referred to above was taken. The respondent has also contended that at the time of seeking admission, the petitioners agreed to abide by the rules and regulations and to achieve the prescribed standard. It was made clear to the petitioners that, in case, they did not achieve the prescribed standard, and did not show satisfactory performance, then they may be ask to transfer or discontinue from the Institute. It is also submitted by the respondent that during the student's stay in the institute, it is expected of him to have a certain minimum performance and progress. The minimum academic requirements regarding the performance and progress for the Integrated First Degree and Higher Degrees are : (i) A CGPA of at least 4.5 at the end of every semester. (ii) Not more than one E grade in a semester. (iii) The pace of the progress of the student should be such that at any stage of reckoning the student should not have spent more that 50% extra time than what is prescribed for him upto that stage in his programme. 11. Under Clause 5.20 of the Academic Regulations, the minimum academic requirements are as under : (i) should not have secured more than one 'E' grade in that semester/ term (ii) should have a CGPA of at least 4.50 and (iii) should have at least cleared as per his latest programme such courses (counted from the point of his entry into the institute) as are prescribed for a period that corresponds to two thirds of the number of semesters spent by him since his entry into the Institute with reference to his current programme. This means that at any stage of reckoning the student should not have spent more than 50% extra time than that is prescribed for him upto that stage". This means that at any stage of reckoning the student should not have spent more than 50% extra time than that is prescribed for him upto that stage". The submission of Shri Calla is that one of the requirement is that a candidate should not secure more than IE grade. But Dinesh Kumar and Vinit Mishra have got more than IE grade, as follows and they were neither asked to change over to Article so far : 1. Sri Dinesh Kumar 12 Es. 2. Sri Vineet Mishra 17 Es. 12. As against the above quoted number of E grades, the number of E grades in the case of the three petitioners are as under : 1. Sri Sanjay Kumar Singh 8 Es. 2. Sri Ajay Kumar Singh 7 Es. 3. Sri Sudhir Ranjan Singh 6 Es. 13. As regards the requirement of at least 4.5 CGPA. Shri Calla submitted that a number of students failed to get the minimum CGPA of 4.5 and yet they were neither asked to change over or to quit and they are continuing in the 'A' Group i.e. Engineering. 14. As regards NC, Shri Calla submitted that Sanjay Kumar Singh got 6, Ajai Kumar Singh 6 and Sudhir Ranjan Singh 3. But the students having more number of Es and NCs than the petitioners are continuing in the engineering courses and they have neither been asked to change from Engineering or to quit. They are as under : S. No. Name No. of Es. No. of NCs 1 Sri Dinesh Kumar 12 12 2 Sri Vineet Mishra 17 2 3 Sri Ameet Khanduri 15 2 4 Sri Prem Chand Valeti 9 1 5 Sri T.P. Ghosal 22 2 6 Sri S. Laxman Rao 17 5 7 Sri Prafulla Kumar Upadhaya 24 8 15. Shri Calla has also pointed out that Topendra Ghosal is studying in Group Mechanical Engineering since 1980-81. He has completed the required course in 1986-87 after attempting in 13 semesters However, he failed to secure the minimum CGPA i.e. 4.5 and still he is allowed to repeat certain courses from last two semesters and also offered some new courses to improve his CGP.A to the required level of 4.5, while the petitioner is sought to be expelled. 16. Shri M.M. Ranjan, learned counsel for the respondent, submitted that the allegations of discrimination are without any merit. 16. Shri M.M. Ranjan, learned counsel for the respondent, submitted that the allegations of discrimination are without any merit. His submission is that the Institute adopts some procedure for several students and no violation of procedure is done by the Institute and, in the case of the petitioners also there was no departure from this procedure. The petitioners appeared at 8 semesters and in all the semesters, marks were given which were converted into letter grades Since the petitioner could not get the requisite grades as such, action is being taken against them. It is submitted by Shri Ranjan that the maximum time period for clearing four year programme is six years and the petitioners have already spent four years. He has further submitted that according to the Regulation 5.02(3) of the Academic Regulations of the Institute. the petitioners cannot be allowed more than 50% extra time than what is prescribed for them upto that stage. Thus, in the remaining time four semesters which are available to them as per 5.2 clause, it is not possible for the petitioners to complete the remaining 9 courses seeing the pace at which they have been proceeding during the last 8 semesters. He has further submitted that it is with in the jurisdiction and authority of the Institute to ask the petitioners to seek transfer to a less exacting programme from one of the C Groups or even to leave the institute. So far as Topendra Ghosal's case is concerned Sri Ranjan has pointed out that he has cleared all the courses of his degree programme though he could not pass in aggregate by the end of the first semester 1986-87, his C GPA being 431, which was slightly lower then 450 and by the end of the 2nd Semester 1986-87 he has improved his CGPA to 4.41, and it is expected that by the end of the current semester he would be able to make more than 4.50 and. thus, he would be able to improve his performance and meet the requirement of gradation. It was also pointed out that Topendra Ghosal has cleared all the courses in a total spell of I I semester at the preparatory stage which is within 50% clause. Thus, the case of Topendra Ghosal cannot be compared with the case of the petitioners. 17. It was also pointed out that Topendra Ghosal has cleared all the courses in a total spell of I I semester at the preparatory stage which is within 50% clause. Thus, the case of Topendra Ghosal cannot be compared with the case of the petitioners. 17. As regards Vineet Mishra, Dinesh Kumar and Prem Chand Valeti, Shri Ranjan has submitted that they have improved their performance They had cleared almost 75% of the courses whereas the petitioners were unable to clear the course of even the second semester after 8 semesters. 18. We have given our thoughtful consideration to the submissions made by the learned counsel for the parties. 19. As regards the objections about the maintainability of the writ petitions against the respondent, we are of the opinion that the Birla Institute of Technology and Science has been declared to be a University for the purpose of the University Grants Commission Act, 1956. The Notification issued by the Ministry of Education. Government of India, dated 8th June, 1964, referred to above, is very clear in this respect which states that the Central Government on the advice of the University Grants Commission declared the Birla Institute of Technology and Science, Pilani, which is an institution for higher education, to be a University. Thus, by virtue of the said Notification, the Institute has been demand to be a University. In case, it is a university it is entitled to the grants made by the Central Government under the provisions of the University Grants Act. 1956, It is not disputed that the respondent has not received grants given to it by the University Grants Commission. It is on record that so far the BITS has received a sum of Rs. 1,28,93,24.00 as Government non-recurring grant. From the letter Ex. 2 dated 8th February, 1985, given by the University Grants Commission to the Registrar, Biala Institute of Technology & Science, it is clear that the sanction was accorded by the Commission to the payment of an on account' grant of Rs. 20 00,000/- to the Institute of first instalment out of the grant of Rs. 32,00,000/- approved for purchase of laboratory equipment vide UGC letter of even No. dated 8th February, 1985. 20 00,000/- to the Institute of first instalment out of the grant of Rs. 32,00,000/- approved for purchase of laboratory equipment vide UGC letter of even No. dated 8th February, 1985. It is also clear that the respondent is an approved member of association of Indian Universities and there is no doubt that it is only a university that can become member of Association of Indian Universities. There is no dispute also that BIIS awards degree which is recognised by the University Grants Commission. From Regulations 17 and 18, referred to above, it is also clear that the report of the Board of Governors on the work of the Institute with the audited statements of accounts and budget estimates are required to be submitted to the Central Government and the Central Government have the right to cause an inspection to be made of the Institute, its building laboratories, its examination, teaching and other work conduced or done by the Institute The power is vested with the Central Government to cause an enquiry to be made, if considered necessary in respect of any matter connected with the Institute In view of the aforesaid circumstances that the Institute is engaged in the matter of high public interest, or performing public functions there is combination of State act and the performance of public service. Thus, in view of the above circumstances we are of the opinion that the respondent Institute answers to the test of State. We, therefore, hold that the Birla Institute of Technology & Science, Plant is an instrumentality or agency of the Government and, thus an authority and is therefore a State within the enlarged meaning of expression in Article 12 of the Constitution. Thus, the writ petition is maintainable against the Institute in case of any violation of the provisions of the Constitution 20. Referring to the merits of the case, we are of the opinion that no case of any hostile discrimination has been made out by the respondent (sic). The cases of Dinesh Kumar Vineet Mishra and Prem Chand Valeti are distinguishable as they have cleared almost 75% of the courses. whereas the petitioners were unable to clear the course of even 2nd Semester after at semesters. The case of Topendra Ghosal is also distinguishable. The cases of Dinesh Kumar Vineet Mishra and Prem Chand Valeti are distinguishable as they have cleared almost 75% of the courses. whereas the petitioners were unable to clear the course of even 2nd Semester after at semesters. The case of Topendra Ghosal is also distinguishable. Topendra Ghosal has cleared all the courses in total span of 11 semesters after preparatory stage and was within 50% clause, whereas the petitioners have only cleared 21 of the total 45 courses of their programme. In the case of Topendra Ghosal, ACB was of the opinion that he would improve CGPA by the end of the semester and, thus he was within the 50% clause The other students whose names have been given by the petitioners, they have shown improvement in their performance. As regards Dinesh Kumar Vineet Mishra and Prem Chand Valeti, the Institute has pointed out that they had clear almost 75% of the courses. With regard to J.N. Mahapatra, the respondent has rightly pointed out that his case was similar to the case of the petitioners and he was also asked for transfer from A Grade to C Grade and on having been transferred to C grade, he has already registered himself in C Grade. The case of Prafulla Kumar Upadhyaya is almost different from the case of the petitioners. His case is similar to the case of Topendra Ghosal. Prafulla Kumar Upadhayaya was admitted in the Institute in the first semester 1979-80 under a mathematice programme. At that time there was a different system and the total duration of the programme was different. Looking to the programme of Upadhayaya, the Institute was of the opinion that he was likely to graduate at the end of the semester with a CGPA of more then 4.50. It was also pointed out that Upadhayaya had cleared 55 courses out of total 56 courses for h s two degrees and he was likely to complete his degree in 81/2 years which is well within 50% extra of his normal duration. So far as the case of S. Laxman Rao is concerned the respondent has stated that he has cleared 39 courses out of total 56 courses of his dual degree programme. It was also pointed out that he has registered in four courses and be is likely to graduate at the end of the 1st Semester 1989-90. So far as the case of S. Laxman Rao is concerned the respondent has stated that he has cleared 39 courses out of total 56 courses of his dual degree programme. It was also pointed out that he has registered in four courses and be is likely to graduate at the end of the 1st Semester 1989-90. He was within 50% permissible extra time. The respondent has also pointed out that the students who have been asked to be transferred to C-Group were those students who had either not cleared even 50% of the courses which they should have completed with normal pace or those who had to chance of increasing the CGPA to the minimum required level of 4.50. It was thus explained by the Institute that the students who have been quoted by the petitioners and whose names have been referred to above, do not fall in any Of the categories excepting J.N. Mahapatra, who has already been transferred to C-grade. The respondent has thus explained the comparative performance of the petitioners qua the others whose names have been referred to above in the matter of allegation of arbitrariness and discrimination levelled by the petitioners in a satisfactory manner. 21. In view of the above circumstances, and further in view of the fact that no allegation of mala fides have been levelled against the authorities of the respondent Institute, we are of the considered opinion that no case of discrimination has been made out against the respondent warranting interference by this Court in the matter of administration of an educational institute under Article 226 of the Constitution. 22. In the premises aforesaid, there is no merit in these writ petitions and the same are dismissed. In the circumstances of the cases, the costs are made easy.Petition Dismissed. *******