Nripendra Kumar Sarma v. Bongaigaon Refinery and Petrochemicals Ltd.
2008-08-27
RANJAN GOGOI
body2008
DigiLaw.ai
JUDGMENT Ranjan Gogoi, J. 1. Will the Delhi Public School Society, a body registered under the Societies Registration Act, 1860 be amenable to the writ jurisdiction of this Court? This is the question that arises, in the first instance, in the present writ petition. The said question has arisen on the basis of a preliminary objection raised by the Respondents with regard to the maintainability of the writ petition wherein the Petitioner, an employee of the Delhi Public School, Dhaligaon, Bongaigaon, has claimed appointment in the post of accountant which carries a higher scale of pay than what was being drawn by him at the relevant point of time. 2. The Delhi Public School, Dhaligaon, where the Petitioner is employed was set up by virtue of an agreement, executed in the year 1986 by and between the Respondent No. 1. Bongaigaon Refinery and Petrochemicals Ltd., and the Delhi Public School Society. The service of the Petitioner who was an employee of the school, prior to its take over by the Delhi Public School Society was continued in the post of Assistant in the pay scale of Rs. 3,200/- to Rs. 4,850/-. The said scale was modified in the year 2000 to Rs. 4,200/- to Rs. 6,350/-. The Petitioner, however, claims to be entitled for appointment in the post of Accountant in the scale of pay of Rs. 6,000/- to Rs. 7,500/-. The repeated requests of the Petitioner for his appointment in the said post and in the scale of pay of Rs. 6,000/- to Rs. 7,500/- not having been answered, this writ petition has been filed. 3. The Respondents have raised a preliminary objection with regard to the maintainability of the writ petition on the ground that the school is run by the Delhi Public School Society which is a body registered under the provisions of the Cooperative Societies Registration Act, 1860. According to the Respondents, the Delhi Public School Society is an independent and autonomous body and no effective control is exercised over the said body either by the Central Government or by the Respondent No. 1. The Delhi Public School Society will, therefore, not come within the definition of State and other authorities as envisaged under Article 12 of the Constitution. The writ petition, accordingly, will not be maintainable.
The Delhi Public School Society will, therefore, not come within the definition of State and other authorities as envisaged under Article 12 of the Constitution. The writ petition, accordingly, will not be maintainable. According to the Respondents, the school in question is being run and managed exclusively by the Board of Management constituted under the agreement between the Respondent No. 1 and the Delhi Public School Society which envisages complete autonomy to the school management in all matters including appointment and payment of salaries. 4. A preliminary objection with regard to the maintainability of the writ petition having been raised the court had thought it appropriate to hear arguments on the said issue before proceeding to consider the merits of the claim made in the writ petition. Sri K.P. Sarma, learned senior counsel appearing for the writ Petitioner and Sri K.N. Choudhury and Sri M.K. Choudhury, learned senior counsels appearing for the Respondent Nos. 1 and 2, respectively, have been heard. 5. A huge number of case-laws available on the point at issue has been cited at the Bar by the learned Counsels for the contesting parties. The sheer number of decided case-laws available on the point has made it practically impossible for the court to recite all the precedents that have been cited before it. However, the core of the leading pronouncements on the subject are being dealt with along with Constitution Bench judgment of the Apex Court in the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. (2002) 5 SCC 111 , primarily because in course of consideration of the subject-matter before the Constitution Bench, virtually all the leading precedents available on the subject received attention. 6. A convenient starting point for the discussion that will have to follow could be the decision of the Constitution Bench in Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr. (1975) 1 SCC 421 . Adopting what came to be later known as the 'voice and hands' approach, the Apex Court held that the Oil and Natural Gas Commission, Life Insurance Corporation and the Industrial Finance Corporation would come within the meaning of other authorities as envisaged by Article 12 of the Constitution.
v. Bhagatram Sardar Singh Raghuvanshi and Anr. (1975) 1 SCC 421 . Adopting what came to be later known as the 'voice and hands' approach, the Apex Court held that the Oil and Natural Gas Commission, Life Insurance Corporation and the Industrial Finance Corporation would come within the meaning of other authorities as envisaged by Article 12 of the Constitution. However, in doing so, the Constitution Bench took into account the statutory nature of the Constitution of the commission or corporations in question as well as the statutory duties that such commissions or corporations were required to perform under the Regulations framed. In the majority view of the Bench it was, however, also indicated that a body which has a public duty to perform or a body which "performs duties and carries out its transactions for the benefit of the public" though incidentally it makes a profit would also come under the expression 'other authorities'. Mathew, J., who delivered a separate but concurring judgment had identified four different tests for identifying such an agency or instrumentality. The said tests have been indicated in paragraph 17 of the judgment of the Apex Court in Pradeep Kumar Biswas (supra) as follows: 17. For identifying such an agency or instrumentality he propounded four indicia: (1) A finding of the State financial support plus an unusual degree of control over the management and policies might lead one to characterize an operation as State action. (SCC p. 454, para 96). (2) Another factor which might be considered is whether the operation is an important public function. (SCC p. 454, para 97). (3) The combination of State aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a State agency. If a given function is of such public importance and so closely related to governmental functions as to be classified as a governmental agency, then even the presence or absence of State financial aid might be irrelevant in making a finding of State action. If the function does not fall within such a description, then mere addition of State money would not influence the conclusion (SCC p. 454, para 97). (4) The ultimate question which is relevant for our purpose is whether such a corporation is an agency or instrumentality of the Government for carrying on a business for the benefit of the public.
If the function does not fall within such a description, then mere addition of State money would not influence the conclusion (SCC p. 454, para 97). (4) The ultimate question which is relevant for our purpose is whether such a corporation is an agency or instrumentality of the Government for carrying on a business for the benefit of the public. In other words, the question, is for whose benefit was the corporation carrying on the business? (SCC p.458,para 111). In the (sic) decision, i.e., Pradeep Kumar Biswas, the majority view also indicated the aforesaid tests as a prelude to the subsequent developments in the law. 7. However, in Sabhajit Tewary v. Union of India (1975) 1 SCC 485 , which was decided on the same day, the same Constitution Bench held that the Council of Scientific and Industrial Research is not an authority under Article 12 of the Constitution though there was evidence of a fair amount of governmental control over the said body. In coming to the aforesaid conclusion the Constitution Bench, as it appears, primarily, took into account the absence of any statutory character of the said body, i.e., the Council of Scientific and Industrial Research. The control of the Central Government over the said body was understood to be indicative of "nothing more than the fact that the Government takes special care that the promotion, guidance and co-operation of scientific and industrial research, the institution and financing of specific researches, establishment or development and assistance to special institutions or departments of the existing institutions for scientific study or problems affecting particular industry in a trade, the utilization of the result of the researches conducted under the auspices of the Council towards the development of industries in the country are carried out in a responsible manner." 8. The next decision that will have to be noticed had been rendered by the Apex Court in the case of Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors. (1981) 1 SCC 722 .
The next decision that will have to be noticed had been rendered by the Apex Court in the case of Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors. (1981) 1 SCC 722 . In the said case the Apex Court was dealing with the question as to whether the Regional Engineering College, Srinagar, managed and administered by a society registered under the J and K Registration of Societies Act, 1898, would come within the meaning of 'other authority' so as to make it answerable to the writ court on a complaint of arbitrariness in the matter of grant of admissions. The Apex Court in paragraph 9 of the judgment laid down certain tests to evolve an answer to the question raised. Paragraph 9 of judgment of the Apex Court in Ajay Hasia (supra) in which the relevant tests are enumerated may be usefully extracted herein. 9. The tests for determining as to when a corporation can be said to be an instrumentality or agency of government may now be culled out from the judgment in the International Airports Authority case. These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity or a wide meaning to be placed on the expression "other authorities", it must be realized that it should not be stretched so far as to bring in every autonomous body which has some nexus with the government within the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the International Airports Authority case as follows: (1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. (SCC p. 507, para 14). (2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (SCC p. 508, para 15). (3) it may also be a relevant factor.... Whether the corporation enjoys monopoly status which is State conferred or State protected. (SCC p. 508, para 15).
(SCC p. 508, para 15). (3) it may also be a relevant factor.... Whether the corporation enjoys monopoly status which is State conferred or State protected. (SCC p. 508, para 15). (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (SCC p. 508, para 15). (5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (SCC p. 509, para 16). (6) "Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this interference " of the corporation being an instrumentality or agency of Government (SCC p. 510, para 18). If on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of government, it would, as pointed out in the International Airports Authority case, be an 'authority' and, therefore, 'State' within the meaning of the expression in Article 12. It will be required to be noticed in this regard that in Ajay Hasia (supra) the Apex Court explained the decision in Sabhajit Tewary (supra) by holding that in the said case the Apex Court "did not rest its conclusion on the ground that the Council was a society registered under the Societies Registration Act, 1860, but proceeded to consider various other features of the Council for arriving at the conclusion that it was not an agency of the Government and, therefore, not an 'authority'. 9. A rather 'unnoticed' judgment will, however, require to be noticed as the true purport thereof has to be understood in determining the correct parameters of the law that the court has been called upon to trace out in the present case. The aforesaid decision has been rendered by the Apex Court in Shri Anandi Mukta Sadguru Shree Muktajee Vedasjiswami Suvarna Jayanti Smarak Trust and Ors. v. V.R. Rudani and Ors. AIR 1989 SC1607. In the aforesaid decision the Apex Court held that the Trust running a science college in Ahmedabad which was affiliated to the Gujarat University under the Gujarat Universities Act, 1949 would be amenable to the writ jurisdiction of the High Court insofar as a claim for arrear and current salaries of the Lecturers of the college is concerned.
In the aforesaid decision the Apex Court held that the Trust running a science college in Ahmedabad which was affiliated to the Gujarat University under the Gujarat Universities Act, 1949 would be amenable to the writ jurisdiction of the High Court insofar as a claim for arrear and current salaries of the Lecturers of the college is concerned. In coming to the aforesaid conclusion, the Apex Court in Anandi Mukta (supra) dwelt more upon the expression 'any person or authority' as appearing in Article 226 rather than the similar expression as appearing in Article 12. Dealing with the aforesaid two articles the Apex Court came to the conclusion that the expression 'authority' used in Article 12 will be relevant only in situations where the enforcement of fundamental rights is involved. However, the same expression appearing in Article 226 must be understood in a broader light to include even non-statutory authorities performing public duties which bodies would be amenable to the writ jurisdiction for enforcement of non-fundamental rights of the citizens. Construing the provisions of the Constitution in the aforesaid manner in Anandi Mukta (supra) the Apex Court took the view that the College has to be understood to be carrying a positive obligation in public law which could be enforced by issuing a writ. 10. The law having continued to march in a forward direction after the decision in Ajay Hasia (supra), a note of caution was struck by the Apex Court in the case of Chander Mohan Khanna v. National Council of Educational Research and Training and Ors. (1991) 4 SCC 578 . A numerically smaller Bench of the Apex Court in the aforesaid case laid down that the tests to determine whether the body is an instrumentality or an agency of the Government are by no means exhaustive and that "there is no cut and dried formula which would provide correct division of bodies into those which are instrumentalities or agencies of the government and those which are not". The Bench further observed that each case should be handled with care and caution. The aforesaid views available in paragraphs 2 of the judgment of the Apex Court may, conveniently, be extracted herein. 2. There are only general principles but not exhaustive tests to determine whether a body is an instrumentality or agency of the government.
The Bench further observed that each case should be handled with care and caution. The aforesaid views available in paragraphs 2 of the judgment of the Apex Court may, conveniently, be extracted herein. 2. There are only general principles but not exhaustive tests to determine whether a body is an instrumentality or agency of the government. Even in general principles, there is no cut and dried formula which would provide correct division of bodies into those which are instrumentalities or agencies of the government and those which are not. The powers, functions, finances and control of the government are some of the indicating factors to answer the question whether a body is "State" or not. Each case should be handled with care and caution. Where the financial assistance from the State is so much as to meet almost entire expenditure of the institution, or the share capital of the corporation is completely held by the government, it would afford some indication of the body being impregnated with governmental character. It may be a relevant factor if the institution or the corporation enjoys monopoly status which is State conferred or State protected. Existence of deep and pervasive State control may afford an indication. If the functions of the institution are of public importance and related to governmental functions, it would also be a relevant factor. These are merely indicative indicia and are by no means conclusive or clinching in any case. 11. A somewhat different line of thought almost akin to what was expressed in Anandi Mukta (supra) is to be found in Anr. decision of the Apex Court in the case of U.P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey and Ors. (1999) 1 SCC 741 . In the aforesaid decision the Apex Court upon holding the U.P. State Co-operative Land Development Bank Ltd. to be an authority controlled by the State Government and the service conditions of its employees to be statutory in character, held the writ petition to be maintainable. At the same time it was thought proper to discuss, though in brief, the question as to whether Article226 of the Constitution makes a divide between public and private law. The views of the Apex Court in this regard contained in paragraph 27 of the judgment may be usefully extracted herein. 27.
At the same time it was thought proper to discuss, though in brief, the question as to whether Article226 of the Constitution makes a divide between public and private law. The views of the Apex Court in this regard contained in paragraph 27 of the judgment may be usefully extracted herein. 27. In view of the fact that control of the State Government on the Appellant is all-pervasive and the employees had statutory protection and, therefore, the Appellant being an authority or even instrumentality of the State, would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution, it may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of Article 226, there does not appear to exist such a divide. To understand the explicit language of the article, it is not necessary for us to rely on the decision of the English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or person, does not make any such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including, in appropriate cases, any Government. Under Clause (1) of Article 367, subject to the context otherwise requires, the General Clauses Act, 1897, shall subject to any adaptations and modifications that may be made therein under Article372, apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the dominion of India. "Person" under Section 2(42) of the General Clauses Act shall include any company or association or body of individuals, whether incorporated or not. The Constitution is not a statute. It is a fountainhead of all the statutes.
"Person" under Section 2(42) of the General Clauses Act shall include any company or association or body of individuals, whether incorporated or not. The Constitution is not a statute. It is a fountainhead of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a co-operative society or association or body of individuals, whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this Court has laid down certain guidelines and self-imposed limitations have been put there subject to which the High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. The High Court does not interfere when an equally efficacious alternative remedy is available or when there is an established procedure to remedy a wrong or enforce a right. A party may not be allowed to bypass the normal channel or civil and criminal litigation. The High Court does not act like a proverbial "bull in a china shop" in the exercise of its jurisdiction under Article 226. 12. The next decision of the Apex Court that will required to be noticed is the Constitution Bench judgment already referred to earlier, i.e. in the case of Pradeep Kumar Biswas (supra). After a near elaborate consideration of the available precedents on the subject the final picture that was expressed by the majority of the Constitution Bench has been depicted in paragraph 40 of the aforesaid judgment which is in the following terms: 40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia 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 Article 12.
The picture that ultimately emerges is that the tests formulated in Ajay Hasia 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 Article 12. 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. 13. The last judgment that will require a careful reading for the purpose of answering the question that has arisen in the present case is reported in Federal Bank Ltd. v. Sagar Thomas and Ors. (2003) 10 SCC 733 . The question in the aforesaid case was whether a dismissal of an employee by a private bank could be challenged in a proceeding under Article 226 of the Constitution. Taking note of the view expressed by the Apex Court in paragraph 14 of Pradeep Kumar Biswas (quoted above) the Apex Court on application of the six principles laid down in Ajay Hasia (supra), found none of the tests laid down to be attracted to the case before it. Accordingly, the writ petition was held to be not maintainable and the contrary view of the High Court was reversed. What would be of significance, in the context of the arguments that have come in the present case, i.e. that the Delhi Public School Society is exercising duties and functions of a public nature are the views of the Apex Court expressed in paragraphs 29 and 31 of the judgment which throw sufficient light with regard the question as to when a body can be said to be discharging duties and functions of a public nature. Paragraphs 29 and 31 of the said judgment may, therefore, be usefully extracted herein. 29. There are a number of such companies carrying on the profession of banking. There is nothing which can be said to be close to the governmental functions.
Paragraphs 29 and 31 of the said judgment may, therefore, be usefully extracted herein. 29. There are a number of such companies carrying on the profession of banking. There is nothing which can be said to be close to the governmental functions. It is an old profession in one form or the other carried on by individuals or by a group of them. Losses incurred in the business are theirs as well as the profits. Any business or commercial activity, may be banking, manufacturing units or related to any other kind of business generating resources, employment, production and resulting in circulation of money are no doubt, such which do have impact on the economy of the country in general. But such activities cannot be classified as one falling in the category of discharging duties or functions of a public nature. Thus, the case does not fall in the fifth category of cases enumerated in the case of Ajay Hasia. Again we find that the activity which is carried on by the Appellant is not one which may have been earlier carried on by the Government and transferred to the Appellant-company. For the sake of argument, even if it may be assumed that one or the other test as provided in the case of Ajay Hasia may be attracted, that by itself would not be sufficient to hold that it is an agency of the State or a company carrying on the functions of public nature. In this connection, observations made in the case of Pradeep Kumar Biswas quoted earlier would also be relevant. 31. The other case which has been heavily relied upon is Anandi Mukta (supra). It is no doubt held that a mandamus can be issued to any person or authority performing public duty, owing positive obligation to the affected party. The writ petition was held to be maintainable since the teacher whose services were terminated by the institution was affiliated to the University and was governed by the ordinances, casting certain obligations which it owed to that Petitioner. But it is not the case here.
The writ petition was held to be maintainable since the teacher whose services were terminated by the institution was affiliated to the University and was governed by the ordinances, casting certain obligations which it owed to that Petitioner. But it is not the case here. Out attention has been drawn by the learned Counsel for the Appellant to paras 12, 13 and 21 of the decision (Anandi Mukta) to indicate that even according this case no writ would lie against the private body except where it has some obligation to discharge which is statutory or of public character. 14. The net the result of the above discussion can be summarized by understanding the law laying down the requirements to bring a body or agency within the meaning of Article 12 of the Constitution to be as enumerated in paragraph 9 of the judgment in Ajay Hasia (supra), the proper application of which has been explained in paragraph 40 of the judgment in Pradeep Kumar Biswas (supra). The tests laid down are not exhaustive and the final picture that has to emerge does not depend on the numerical strength of the positive presence of the laid down criteria. All would depend on the facts of each case which has to be treated with great care and caution. Insofar as the availability of the writ remedy in the domain of private law is concerned in view of the wide language of Article 226, the decisions in Anandi Mukta (supra) and U.P. State Co-operative Land Development Bank Ltd. (supra) have to be understood in the light of the note of caution contained in the ultimate lines of paragraph 27 of the judgment in U.P. State Co-operative Land Development Bank Ltd. (supra), particularly those to the effect that the High Court does not act like a proverbial "bull in a china shop" in the exercise of its jurisdiction under Article 226. The following observations of the Apex Court in Rohtas Industries Ltd. v. Rohtas Industries Staff Union (1976) 2 SCC 82 will always act as a wise restraint on the free exercise of the otherwise expansive jurisdiction under Article 226. 9.
The following observations of the Apex Court in Rohtas Industries Ltd. v. Rohtas Industries Staff Union (1976) 2 SCC 82 will always act as a wise restraint on the free exercise of the otherwise expansive jurisdiction under Article 226. 9. The expansive and extraordinary power of the High Court under Article 226is as wide as the amplitude of the language used indicates and so can affect any person-even a private individual - and be available for any (other) purpose - even one for which Anr. remedy may exist. The amendment to Article 226 in 1963 inserting Article 226(1A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to 'the residence of such person', but it is one thing to affirm the jurisdiction, Anr. to authorize its free exercise like a bull in a china shop. The court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of laws is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that the award here is not beyond the legal reach of Article 226, although this power must be kept in severely judicious leash. 15. Applying the parameters of the above law to the facts of the present case what this Court finds is that the Delhi Public School, Dhaligaon, was set up under an agreement dated 10.9.1996 executed by and between the Respondent No. 1 and the Delhi Public School Society. By the said agreement the Delhi Public School Society agreed to grant a revocable licence to the Board of Management of the school to use the name "Delhi Public School" and its logo for the purpose of the Delhi Public School, Dhaligaon. Under Clause 5 of the agreement the Bongaigaon Refinery and Petrochemicals Ltd. ('the BRPL') agreed to provide a guarantee for payment to the Society maintenance charges of Rs. 3,00,000 (Rupees three lakhs) per annum with 10% escalation every year.
Under Clause 5 of the agreement the Bongaigaon Refinery and Petrochemicals Ltd. ('the BRPL') agreed to provide a guarantee for payment to the Society maintenance charges of Rs. 3,00,000 (Rupees three lakhs) per annum with 10% escalation every year. Under Clause 4 the said school was to be established, managed and run by a Board of Management consisting of nine members including the Chairman, Vice-Chairman and Pro-Vice-Chairman. While the Chairman of the Board of Management is to be the Chairman of the Society, the Vice-Chairman is to be nominated from amongst the members of the Society by the Chairman. The Pro-Vice-Chairman is to be nominated by the Respondent No. 1 and is to exercise the powers of the Chairman and Vice-Chairman in their absence. Of the six remaining members of the Board, three are to be nominated by the Society and the other three by the Respondent No. 1. Clause 5 of the agreement visualizes full autonomy to the Board of Management to run the affairs of the school including matters pertaining to appointment of Principal and members of the teaching and non-teaching staff. Under Clause 6 of the agreement, the BRPL, i.e., the Respondent No. 1 had agreed to provide all infrastructure in connection with the setting up of the school including land and buildings and other infrastructure like library, laboratories and provisions for sports and-games, etc. including residential accommodation to the teaching and non-teaching staff. Under Clause 6(j) of the agreement the deficit, if any, in the school budget which cannot be met by the school from its own resources to be funded by the BRPL. Under Clause 8 of the agreement in question, children of employees of BRPL are to get first preference in the matter of admission to the school followed by children of employees of Government/public sector agencies connected with the BRPL and thereafter as per policy of the Board of Management. Under Clause 8(e) of the agreement it is the Board of Management who is responsible for determination of salary payable to the teaching and non-teaching staff whereas under Sub-clause (f) of Clause 8 the BRPL would have a right of inspection of the school premises. Clause 8(h) contemplated that the school building, furniture, fixtures, fittings, library, laboratory materials, sports materials, etc. provided by the BRPL will be treated as having been given on nominal rent of Rupee one per annum to the school.
Clause 8(h) contemplated that the school building, furniture, fixtures, fittings, library, laboratory materials, sports materials, etc. provided by the BRPL will be treated as having been given on nominal rent of Rupee one per annum to the school. 16. Applying the tests that has been culled out by the long process of judicial evolution, as noticed above, it is clear in the present case that apart from the initial guarantee of maintenance charges of Rs. 3,00,000 (Rupees three lakhs) per annum with yearly escalation at the rate of 10%, the school is expected to generate its income, though any deficit, in the last resort, is to be met by the BRPL. Where the agreement between the parties contemplated the school to be a self-income generating body and the resources of the BRPL are to be used only as a cushion in the event of deficit/loss, it cannot be said that financial assistance offered by the BRPL is to the extent of the entire expenditure of the school. However, the entire infrastructure of the school being made available by the BRPL, perhaps, it will not be incorrect to say that the capital expenditure of the school has been incurred by the BRPL. What would, however, be significant to note is the absence of any effective control, much less deep and pervasive control of the BRPL, over the management of the school. In this regard, the agreement in question clearly conveys the impression that such management is vested in a Board which is to take its own independent decisions in all matters commencing from admissions to appointments as well as in the running and maintenance of academic curriculum and standards. In the aforesaid vital area there is hardly any control exercised by the BRPL over the school in question. 17. This will bring the court to a consideration of the question of exercise of functions and duties of public nature by the school, on which much reliance has been placed on behalf of the Petitioner. What has to be emphasized, in this regard, is that imparting of education though has an element of public interest what cannot escape the court's attention is the entry of a large body of persons and agencies in the field of spreading of education and the additional fact that in many such cases spreading of education is primarily private commercial ventures.
The aforesaid observation of the Court certainly has nothing to do with the affairs of the Society involved in the present case. What is ought to be emphasized is that spreading of education, though undoubtedly connected with public interest, is an activity where there is a large number of private players. Obviously, the extraordinary jurisdiction of this Court cannot be expected to embrace the actions of all such bodies merely because they are engaged in the field of imparting education. 18. From the above discussions it transpires that the crucial tests laid down in Ajay Hasia (supra) as explained in Pradeep Kumar Biswas (supra) to determined whether a body can be understood to be an authority under Article 12 or a body amenable to the expansive jurisdiction of the High Court are not attracted in the present case involving the Delhi Public School Society. Though some monetary assistance with a cushion, the event of losses, is guaranteed by the BRPL, the school in question is run and managed by the Society which body is expected to and must be generating its own income. Besides there is no effective control much less deep and pervasive control of the BRPL over the conduct of the affairs of the school. For reasons already discussed the school in question cannot also be understood to be engaged in performance of functions and duties of public nature. Consequently, the Court is of the view that in the present case the preliminary objection raised by the respondents that the writ petition is not maintainable must prevail. As the writ petition is being held to be not maintainable no question of entering into the merits of the claim of the Petitioner will arise. 19. The writ petition, consequently, is dismissed as not maintainable.