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2014 DIGILAW 76 (JK)

Akshay Tikoo v. Shri Mata Vaishno Devi University

2014-02-24

TASHI RABSTAN

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1. Petitioner aggrieved with Communication/Order No. SMVDU/Adm/08/4306 dated 23.12.2008 of Registrar, Shri Mata Vaishno Devi University, Katra, intimating petitioner that he has been discharged from his services as Associate Professor of the University with effect from 23.12.2008 on the ground of "very poor" performance during his probation period assessed by Appraisal Committee, has come up with writ petition on hand on the grounds set out in the petition. 2. At the outset of his advancing arguments, Mr. Gagan Basotra, learned counsel appearing for Shri Mata Vaishno Devi University (hereinafter, for short," SMVDU") raises the issue as regards maintainability of writ petition on the premise that SMVDU is not a `State' within meaning of Article 12 of the Constitution of India. The said issue, with consent of learned counsel for parties, has been treated as a Preliminary Issue and this judgment is confined to the said issue only. 3. Mr. Basotra states that as per Jammu and Kashmir Shri Mata Vaishno Devi University Act of 1999 (hereinafter, for short, "SMVDU Act of 1999"), enacted by the J&K State Legislature, SMVDU is a private University incorporated to offer scientific and technical education of highest standards as also to utilize the surplus finance of Shri Mata Vaishno Devi Shrine Board (hereinafter for short "SMVDSB"). He further states that SMVDSB is the supreme authority that governs SMVDU and that since SMVDSB has power to review acts of Executive Council as well as Academic Council of SMVDU, the University is under full and effective control of SMVDSB, in which the State of J&K or Government of India has no control or power of superintendence over SMVDU nor the SMVDU receives any financial assistance directly or indirectly from State of J&K or Government of India. Mr. Basotra also states that Division Bench of this Court has declared and held SMVDSB as not an instrumentality of thestate within meaning of Article 12 of the Constitution of India, therefore, SMVDU does not fall within term `State' under Article 12 of the Constitution of India as interpreted by the Supreme Court. Thus SMVDU, according to Mr.Bastora, is not amenable to writ jurisdiction of this Court under Article 226 of the Constitution of India. He, accordingly, concludes that writ petition on hand is liable to be rejected in limine on this ground alone. 4. Mr. Thus SMVDU, according to Mr.Bastora, is not amenable to writ jurisdiction of this Court under Article 226 of the Constitution of India. He, accordingly, concludes that writ petition on hand is liable to be rejected in limine on this ground alone. 4. Mr. Sethi, learned Senior Counsel appearing for petitioner, on the other hand, vehemently contradicts the stand taken by Mr. Basotra. He argues that SMVDU has been imparting education and selecting teaching as well as administrative staff. These activities, therefore, can well be said to be akin to public duties or State functions, and if there is any violation of constitutional or statutory rights or obligations of the Citizens, the aggrieved person has the right to seek remedy under Article 226 of the Constitution of India. He thus argues that the preliminary issue raised by respondents is not sustainable. In support of his argument, he refers to a judgment of the Supreme Court in case titled as Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649 . 5. Heard learned counsel for the parties. 6. Before dealing with this issue, it is necessary to have an overview of some of the relevant provisions of SMVDU Act of 1999 [Refer JK Laws 2nd Ed. 2013 Vol. 30 P-469], for proper adjudication of preliminary issue raised by respondents. These are Sections 1(3), 5(6), 5(10), 5(17), 9, 10, 11, 14, 16(2), 19, 20, 21, 26 & 27 of SMVDU Act, which are reproduced hereunder: "1. Short title and commencement: (1) & (2)...... (3) Seat of the University shall be at such place as may be identified by the Government on the recommendations of a committee consisting of six members nominated by Shri Mata Vaishno Devi Shrine Board, State Government and the University Grants Commission in equal numbers, and this shall be located at Katra or around. 5. Powers of the University: (1) to (5)...... (6) to establish and maintain Colleges and Halls to recognize, guide, supervise and control Halls started by Shri Mata Vaishno Devi Shrine Board and to withdraw any such recognition; (7) to (9)...... (10) to recognize for any purpose, either in whole or in part any institution started and maintained by Shri Mata Vaishno Devi Shrine Board on terms and conditions as may, from time to time, be prescribed and to withdraw such recognition; (11) to (16)...... (10) to recognize for any purpose, either in whole or in part any institution started and maintained by Shri Mata Vaishno Devi Shrine Board on terms and conditions as may, from time to time, be prescribed and to withdraw such recognition; (11) to (16)...... (17) to borrow, with the approval of Shri Mata Vaishno Devi Shrine Board on security of the University property, money for the purposes of the University. 9. Authorities of the University The authorities of the University shall be the Shri Mata Vaishno Devi Shrine Board, the Executive Council the Academic Council, the Schools of Studies, theFinance Committee and such other authorities as may be declared by the Statutes to be authorities of the University. 10. Shri Mata Vaishno Devi Shrine Board (1) Shri Mata Vaishno Devi Shrine Board (hereafter known as Shrine Board) shall be the supreme authority of the University. (2) The Shrine Board shall have the power to review the acts of the Executive Council and the Academic Council (which it may, at its discretion, consider to have special importance or significant implications warranting a review) and shall exercise all the powers of the University not otherwise provided for by this Act or the Statutes: Provided that the power of review under this sub-section shall not be exercised except by a majority of the total membership of Shri Mata Vaishno Devi Shrine Board and by a majority of not less than two thirds of the members of the Board present and voting. 11. The Executive Council (1) The Executive Council shall consist of the following members, namely:- (i) the Vice-Chancellor of the University; (ii) the Vice-Chancellor of the University of Jammu; (iii) the Vice-Chancellor of the University of Kashmir; (iv) the Dean of the Students, ex-officio; (v) not more than two Deans of Schools of Studies, by rotation according to seniority; (vi) not more than two Principals of colleges; (vii) three persons, none of whom shall be an employee of the University or an institution recognized by, or associated with, the University, nominated by Shri Mata Vaishno Devi Shrine Board. (2) The members of the Executive Council referred to in items (v) and (vi) shall hold office for a term of two years. (3) The members referred to in item (vii) shall hold office for a term of three years. (2) The members of the Executive Council referred to in items (v) and (vi) shall hold office for a term of two years. (3) The members referred to in item (vii) shall hold office for a term of three years. (4) The term of office of the members of the Executive Council shall commence from the date of election, nomination, or appointment, as the case may be. (5) Four members of the Executive Council shall form the quorum. (6) The Executive Council shall be the executive body of the University, and its constitution and the terms of the office of its members, other than ex-officio members, shall be prescribed by the Statutes. (7) It shall be in-charge of the general management and administration (including the revenue and property) of the University. 14. Statutes Subject to the provisions of this Act, the Statutes may provide for all or any of the following matters, namely:-the constitution, powers and duties of the authorities and other bodies of the University, except Shri Mata Vaishno Devi Shrine Board, the qualifications and disqualifications for membership of such authorities and other bodies, appointment and removal of members thereof and other matters connected therewith; (a) the appointment, powers and duties of the officers of the University; (b) the appointment, powers and conditions of service and powers and duties of the employees of the University; (c) the terms and conditions under which institutions may be associated with the University; (d) the administration of the University, the establishment and abolition of the colleges, institutions and Halls, the grant and withdrawal of recognition to institutions, the institutions of Fellowship Awards and the like, the conferment of degrees and other academic distinctions and the grant of diplomas and certificates; (e) the giving of religious instructions; (f) any other matter which is necessary for the proper and effective management and conduct of the affairs of the University and which by this Act is to be or may be provided by the Statutes. 16. Ordinances: (1)..... (2) The first Ordinances shall be made by the Vice-Chancellor with the previous approval of the Shri Mata Vaishno Devi Shrine Board and the Ordinances made may be amended, repealed or added to at any time by the Executive Council in the manner prescribes by the Statutes. 19. 16. Ordinances: (1)..... (2) The first Ordinances shall be made by the Vice-Chancellor with the previous approval of the Shri Mata Vaishno Devi Shrine Board and the Ordinances made may be amended, repealed or added to at any time by the Executive Council in the manner prescribes by the Statutes. 19. Annual Reports (1) The annual report of the University shall be prepared under the direction of the Executive Council and shall be submitted to Shri Mata Vaishno Devi Shrine Board on or before such date as may be prescribed by the Statutes and shall be considered by the Shrine Board at its budget meeting. (2) The Shrine Board may communicate its comments thereon to the Executive Council. 20. General Fund The University shall have a General Fund setup by Shri Mata Vaishno Devi Shrine Board in the name of the University and operated by the University to which shall be credited. (i) Rupees twenty crore as a one-time capital grant to be made by Shri Mata Vaishno Devi Shrine Board for meeting the non-recurring cost of the University; (ii) Rupees three crore to be annually contributed by Shri Mata Vaishno Devi Shrine Board; (iii) its income relating the fee and endowments; (iv) contribution or grants which may be made by the Government; and (v) other contributions or grants. 21. Audit of Accounts (1) The Accounts of the University shall, once at least in every year and at intervals of not more than fifteen months be audited by the Chartered Accountants of the University. (2) A copy of the accounts when audited together with the audit report shall be submitted by the Registrar, to the Chancellor and to the Shrine Board. 26. Removal of difficulties If any difficulty arises in giving effect to the provisions of this Act, Shri Mata Vaishno Devi University may, by order published in the official gazette, make such provisions not inconsistent with the purposes of this Act as appear to it to be necessary or expedient for removing the difficulty. 27. Transitional Provisions Notwithstanding anything contained in this Act and the Statutes, the first Executive Council and the Academic Council shall be nominated by Shri Mata Vaishno Devi Shrine Board and shall hold office for a term of three years: Provided that the Vice Chancellor of the University of Kashmir and the University of Jammu shall be ex-officio members of the Executive Council so nominated. Provided further that the Chancellor shall, preside at the meeting of the First Executive Council and First Academic Council and in his absence, the Vice-Chancellor shall preside." 7. Division Bench of this Court in LAP Nos. 182/1992 & 183/1992, titled as Omkar Sharma & ors. v. Shri Mata Vaishno Devi Shrine Board [2005 (1) SLJ 260 : 2005 (3) JKJ 388 [HC]] has held that SMVDSB is fully an autonomous and independent body, and not an instrumentality of the State. The Division Bench, while holding so, relied upon various pronouncements of the Supreme Court of India, more particularly one delivered by Seven Judges' Bench of the Supreme Court in the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 , paragraph 40 whereof is reproduced hereunder: "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. " 8. The Supreme Court in above-quoted paragraph formulated three main principles, i.e. whether the body is financially, functionally and administratively dominated by or under the control of the Government. The Supreme Court, while holding that such control must be particular to the body-in- question and must be pervasive, observed that if the body is found to have any one of the above principles, then the body is a `State' within meaning of Article 12 of the Constitution. 9. In the present case, SMVDU Act of 1999 does not provide that SMVDU's financial, functional and administrative control is with the State. Further, it is nowhere provided that State Government or Central Government is exercising supervisory, administrative or financial power over SMVDU. The SMVDSB is an exclusive supreme authority of SMVDU. 9. In the present case, SMVDU Act of 1999 does not provide that SMVDU's financial, functional and administrative control is with the State. Further, it is nowhere provided that State Government or Central Government is exercising supervisory, administrative or financial power over SMVDU. The SMVDSB is an exclusive supreme authority of SMVDU. The SMVDSB has powers to review the acts of Executive and Academic Councils and exercise all the powers of the University. The SMVDU Act of 1999, while having its plain reading, reveals that not a single representative -- either from the State or Union of India, has been included as a Member of Executive Council and that SMVDU is fully financed by SMVDSB. The Act also provides that SMVDSB has authority to nominate Members of the Executive Council. 10. Having regard to principles laid down by the Seven Judges Bench in Pradeep Kumar's case (supra), it would be clear that the facts established cumulatively show that SMVDU is not financially, functionally or administratively dominated by or is under the control of State Government or Central Government. Be that as it may, principles laid down in Pradeep Kumar's case squarely cover the case-in-hand. 11. The law has also been settled by Division Bench of this Court in Omkar Sharma's case (supra) and said judgment has become final, whereby SMVDSB has been held not an instrumentality of the State under Article 12of the Constitution of India. The said judgment squarely covers the case-in-hand. Since SMVDU's functional, administrative, financial or any matters or issues related or incidental thereto, is/are dominated and controlled by SMVDSB, and the SMVDSB has already been held not an instrumentality of the State, therefore, SMVDU automatically does not come and fall within definition and meaning of an instrumentality of the State, particularly in view of principles laid down by the Apex Court in Pradeep Kumar's case (supra). 12. The judgment passed by the Supreme Court in Pradeep Kumar's case (supra) is by a Seven Judges Bench whereas judgment relied upon by the learned counsel for petitioner, i.e. Zee Telefilms (supra), is by a Five Judges Bench. Generally the decision/principles laid down by a larger Bench are to be followed, as same carry more weight, having more effect and high persuasive value. 13. Generally the decision/principles laid down by a larger Bench are to be followed, as same carry more weight, having more effect and high persuasive value. 13. Therefore, going by the principles laid down by the Apex Court in Pradeep Kumar's case coupled with the law settled by Division Bench of this Court in Omkar Sharma's case (supra), which has become final and also in view of discussion made hereinabove, submissions of learned counsel for SMVDU appear to be well founded. The preliminary objection raised by learned counsel for respondents, thus, is answered in affirmative by holding that Shri Mata Vaishno Devi University cannot be said to be a `State' or an `authority' within meaning of Article 12 of the Constitution of India and that petitioner is not deprived of alternative remedy by way of suit or other proceedings. 14. For the aforesaid reasons, alternative remedy is available to petitioner; therefore, writ petition for enforcement of fundamental rights against Shri Mata Vaishno Devi University is not maintainable. Resultantly, writ petition along with connected CMAs, if any, is dismissed. Interim direction, if any, shall stand vacated.