Pradeep Bedi vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

This writ petition is filed seeking a writ of certiorari to quash the orders dated 11.06.2019 & 18.06.2019, passed by Respondent No. 4; and a writ of mandamus directing the respondents to reinstate the services of the petitioner; and to pay him arrears of salary and other benefits.

The petitioner was appointed as an Assistant Professor in Swami Rama Himalayan University, Swami Ram Nagar, Jolly Grant, Dehradun. The said University is a private unaided body, and does not receive any aid from the Government. The petitioner's services were terminated, by proceedings dates 11.06.2019, informing him that the University would not be requiring his services w.e.f. 10.07.2019; and, as per Clause xv(a) of the offer of employment dated 05.10.2015, it may be treated as one month's advance notice.

The offer of employment dated 05.10.2015 prescribed various conditions. Clause xv(a) enabled, during probation, for the services to be terminated by either party by giving, to the other, one month notice in writing or salary in lieu thereof.

Mr. Amar Murti Shukla, learned counsel for the petitioner, would place reliance on the profile of the petitioner, as noted in the records of the University, which shows that the petitioner's probation ended on 01.01.2016. According to the learned counsel, the petitioner is no longer under probation; and, since his services have been confirmed, Clause xv(a) of the offer of employment has no application. Clause VI of the offer of employment dated 05.10.2015, however, stipulates that employees will be on probation for a period of one year from the actual date of his/her joining unless confirmed in writing prior thereto. The said clause also reserves to the University the right to reduce/dispense with or extend the probation period in its sole discretion, or to terminate, without assigning any reasons, by giving one month's notice. No order of confirmation was, admittedly, issued to the petitioner.

By the proceedings dated 11.06.2019, the petitioner was informed that his services were terminated by giving one month's advance notice. However, by proceedings dated 18.06.2019, his services were terminated with immediate effect.

Mr. Sandeep Kothari, learned Counsel for the respondent-University, would fairly state that, in terms of the offer of employment, the petitioner was entitled for one month's notice or salary in lieu of one month notice; and in case, as is now contended before us, the petitioner's services were dispensed with on 18.06.2019, then he would, undoubtedly, be entitled for salary from 19.06.2019 till 10.07.2019.

The respondent-University is, admittedly, a private University which does not receive any form of aid from the Government. When we asked Mr. Amar Murti Shukla, learned Counsel for the petitioner, as to how a writ petition would lie against the respondents, which is not an instrumentally of the State within the meaning under Article 12 of the Constitution of India, Mr. Amar Murti Shukla, learned counsel for the petitioner, would place reliance on the judgments of the Supreme Court in Marwari Balika Vidyalaya Vs. Asha Srivastava and others, 2019 SCC Online SC 408 to contend that a writ petition would lie.

In the said judgement, the question which arose for consideration before the Supreme Court was regarding the maintainability of a writ petition against a private school receiving grant in aid from the Government. While examining that question, the Supreme Court, after referring to its earlier judgments, observed that, as held by the Division Bench of the Calcutta High Court, a writ petition would lie. Unlike in Marwari Balika Vidyalaya Vs. Asha Srivastava and others where the institution was receiving aid from the Government, in the present case, the respondent-University, admittedly, does not.

A writ petition would, undoubtedly, lie even against a private institution if there is a statutory violation, such as, in Marwari Balika Vidyalaya Vs. Asha Srivastava and others, where approval was required to be obtained, for the purpose of imposition of a major penalty of dismissal or removal from service, from the concerned Government Authority. No such statutory provision, which obligates any such approval to be sought or granted for terminating the services of the petitioner, has been brought to our notice.

In Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology and others: (2002) 2 SCC 111, a Constitution Bench of the Supreme Court summed-up their conclusions as under:-

"(1) Simply by holding a legal entity to be an instrumentality or agency of the State it does not necessarily become an authority within the meaning of 'other authorities' in Article 12, To be an authority, the entity should have been created by a statute or under a statute and functioning with liability and obligations to public. Further the statute creating the entity should have vested that entity with power to make law or issue binding directions amounting to law within the meaning of Article 13(2) governing its relationship with other people or the affairs of other people --their rights, duties, liabilities or other legal relations. If created under a statute, then there must exist some other statute conferring on the entity such powers. In either case, it should have been entrusted with such functions as are governmental or closely associated therewith by being of public importance or being fundamental to the life of the people and hence governmental. Such authority would be the State, for, one who enjoys the powers or privileges of the State must also be subjected to limitations and obligations of the State. It is this strong statutory flavour and clear indicia of power -- constitutional or statutory and its potential or capability to act to the detriment of fundamental rights of the people, which makes it an authority; though in a even case, depending on the facts and circumstances, an authority may also be found to be an instrumentality or agency of the State and to that extent they may overlap. Tests 1, 2 and 4 in Ajay Hasia enable determination of Governmental ownership or control. Tests 3, 5 and 6 are 'functional' tests. The propounder of the tests himself has used the words suggesting relevancy of those tests for finding out if an entity was instrumentality or agency of the State. Unfortunately thereafter the tests were considered relevant for testing if an authority is the State and this fallacy has occurred because of difference between 'instrumentality and agency' of the state and an 'authority' having been lost sight of sub-silentio, unconsciously and un-deliberated. In our opinion, and keeping in view the meaning which 'authority' carries, the question whether an entity is an 'authority' cannot be answered by applying Ajay Hasia tests.

(2) The tests laid down in Ajay Hasia's case are relevant for the purpose of determining whether an entity is an instrumentality or agency of the State. Neither all the tests are required to be answered to positive nor a positive answer to one or two tests would suffice. It will depend upon a combination of one or more of the relevant factors depending upon the essentiality and overwhelming nature of such factors in identifying the real source of governing power, if need be by removing the mask or piercing the veil disguising the entity concerned. When an entity has an independent legal existence, before it is held to be the State, the person alleging it to be so must satisfy the Court of brooding presence of government or deep and pervasive control of the government so as to hold it to be an instrumentality or agency of the State....."

(emphasis supplied)

In the light of the law declared by the Supreme Court in Pradeep Kumar Biswas, it is evident that the respondent-University is not an instrumentality of the State falling under Article 12 of the Constitution of India. None of the test prescribed in the aforesaid judgment, for bringing the respondent-University within the ambit of Article 12, are fulfilled. We are satisfied, therefore, that the writ petition as filed is not maintainable.

The writ petition fails and is, accordingly, dismissed. No costs.