ARINDAM SINHA,J. - (1.) Petitioner served as Graduate Senior Laboratory Instructor in MCKV Institute of Engineering. He has moved this Court for issuance of, inter alia, writ of Mandamus to compel said Institute to continue with his service till he achieves age 62 years and Certiorari to quash letter dated 24th October, 2017 of prior intimation that he would achieve age of superannuation on 31st January, 2018. At the outset Mr. Majumder, learned advocate appearing on behalf of the Institute relied on three judgments of Supreme Court in raising point of maintainability. The judgments are in - (i) Dipak Kumar Biswas v. Director of Public Instruction reported in (1987) 2 Supreme Court Cases 252 ; (ii) Satimbla Sharma v. St. Paul's Senior Secondary School and others reported in (2011) 13 Supreme Court Cases 760 ; and (iii) K. K. Saksena v. International Commission on Irrigation and Drainage reported in (2015) 4 Supreme Court Cases 670 . Mr. Mukherjee, learned advocate appears on behalf of petitioner. On earlier occasion he had relied on factual aspects which are not being gone into since it is point of maintainability that must first be adjudicated.
(2.) In answering point of maintainability raised, Mr. Mukherjee draws attention to disclosure in his client's affidavit-in-reply being letter dated 22nd April, 2013 issued by Government of India, Ministry of Human Resource Development, Department of Higher Education from which he points out, the institution received Rs. 9 lakhs as Central grant which also entitled it to receive a percentage thereof as State grant. He also refers to another disclosure in the affidavit, appearing at pages 26 to 28, from which he demonstrates two members in Governing Body of the Institute to be nominees of State Government and two, nominees of All India Council for Technical Education (AICTE)/University Grants Commission (UGC). He submits, on facts it must be held that Centre and State have deep and pervasive control over the Institute, it being one that imparts education, a public function. He relies on several decisions, the first being of Supreme Court in i) Anandi Mukta Sadguru Shree Mukta Jeevandasswami Suvarna Jaya v. V.R. Rudani and Ors. reported in AIR 1989 SC 1607 . He relies on following passage extracted below: "The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as nonfundamental rights. The words "Any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied."; (ii) Judgment of Supreme Court in Civil Appeal no. 14553 of 2015 (Dr. Janet Jeyapaul v. SRM University and Ors.) from which following passage is extracted. "22. This we say for the reasons that firstly, respondent no. 1 is engaged in imparting education in higher studies to students at large. Secondly, it is discharging "public function" by way of imparting education. Thirdly, it is notified as a "Deemed University" by the Central Government under Section 3 of the UGC Act. Fourthly, being a Deemed University, all the provisions of the UGC Act are made applicable to respondent no. 1, which inter alia provides for effective discharge of the public function - namely education for the benefit of public. Fifthly, once respondent No. 1 is declared as Deemed University" whose all functions and activities are governed by the UGC Act, alike other universities then it is an "authority" within the meaning of Article 12 of the Constitution. Lastly, once it is held to be an "authority" as provided in Article 12 then as a necessary consequence, it becomes amenable to writ jurisdiction of High Court under Article 226 of the Constitution."; (iii) Order dated 6th January, 2010 of a learned single Judge of Madras High Court in W.P. 5843 of 2001 (P. Jeyachandran v. The Director of Technical Education) , to passage reproduced below: "53. When disciplinary action is taken for imposition of any penalty, which may even result in deprivation of employment, a source to live with dignity, viz., right to life guaranteed under the Constitution of India, it is imperative that a reasonable opportunity should be given to an employee to put forth his case effectively. The safe guards available to a teaching and non-teaching staff of a government or government aided educational institution, under Article 226 of the Constitution of India is equally applicable to a teaching or non-teaching staff of the unaided private educational institution. Article 14 of the Constitution of India, cannot be restricted only to a person working in government aided institution."
(3.) Mr. Majumder in reply, since he had taken the point first, relies on judgment of Supreme Court in Sushmita Basu and others v. Ballygunge Siksha Samity and others reported in (2006) 7 Supreme Court Cases 680 , paragraph 4 and Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and others reported in (2002) 5 Supreme Court Cases 111 , paragraph 40, which is extracted below: "40.The picture that ultimately emerges is that the tests formulated in Ajay Hasia are 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 officially, 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 serve to make the body a State.";