P. PADMANABHA RAO  v. UNION OF INDIA AND ORS

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29.08.2022, the petitioner received a reply to the legal notice from respondent Nos. 3 and 4, whereby, they denied the allegations. Aggrieved by the same, the petitioner has filed the present petition.

3. Learned Counsel appearing for respondent Nos. 6, 9 to 12 raises an objection with respect to the maintainability of the instant writ petition on the ground that respondent No. 3-IETE is a society registered under the Societies Registration Act, 1860. While filing an application for vacation of the order of status quo, he stated that respondent No.3-IETE is neither a 'State' nor 'other authorities' for the purpose of Article 12 of the Constitution of India, 1950 (hereinafter referred as Constitution). According to him, the IETE is a private body having its own Articles of Association and Byelaws (hereinafter referred as AoA) which can be amended without any approval from any government agency.

4. Learned counsel appearing on behalf of Respondent no. 6, 9 to 12, stated that respondent No. 3-IETE is financially independent and is not receiving any regular financial aid from any government agency. According to him, the respondent No. 3-IETE is governed by its GC, with no member or representative from any government department or government agency. He stated that the object of respondent No. 3- IETE is to promote the general advancement of Telecommunication Engineering, Electronics, Computer Science and Engineering, Information Technology and allied subjects and their applications and to facilitate the exchange of information and ideas of these subjects. The membership is restricted to graduates in Engineering and the same is not open to the general public. He placed reliance on a recent decision of the Division Bench of this court in the case of Dr. Jitarani

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Udgata v. Union of India and Anr

1

dated 17.10.2022. According to him, while delivering the judgment, this court in the case of Jitarani (supra) has relied upon the principles laid down by the Hon'ble Supreme Court in its various earlier pronouncements in the cases of

Zee Telefilms Ltd. and Anr. v. Union of India and ors.², Ajay Hasia

v. Kahlid Mujib Sehravardi³, Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors⁴, Supreme Court Bar Association v. BD Kaushik⁵and the decision of the Calcutta High Court in the case of Saikat Ghosh v. Institution of Engineers (India and Ors)⁶. He further stated that the function of the respondent No. 3- IETE cannot be said to be public or the said respondent cannot be said to be discharging any public duty.

5. Learned counsel appearing on behalf of Respondent Nos. 6, 9 to 12 also raised an objection with respect to territorial jurisdiction and stated that the petitioners, at the instance of the unsuccessful candidates in the election of respondent No.3-IETE, cannot be entertained. There are various disputed facts. According to him, there is an existing FIR too which clearly indicates that the petitioner has not approached this court with clean hands. He stated that there are inconsistent records of the investigation committee based on suspicion and presumptions and the same cannot be the reason to debar the elected office bearers to discharge their responsibilities. He placed reliance on the decisions of the Hon'ble Supreme Court in the cases of

Bank of Maharashtra vs , State of U.P vs. AM Ramona,⁷and on the decisions of this court in the cases of Deepak R Mehra v. National

1 2022 SCC OnLine Del 3449

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Sports Club of India

8 , Arghya Kumar Nath vs. Prof. D S Rawat 9 ,

Manohar Lal vs UOI¹⁰, and Kusum Ingots and Alloys Ltd. v. UOI¹¹. He, therefore, submits that the instant petition deserves to be dismissed on the ground of maintainability.

6. Learned counsel appearing on behalf of the petitioner was granted liberty to satisfy this court as to how the instant petition can be maintained under Article 226 of the Constitution. Learned counsel by way of rejoinder, has brought on record various documents to indicate that respondent No. 3-IETE is discharging public function. The same is governed by various government policies and is also helping the government in discharging its function. He has pointed out that the respondent No.3-IETE is India's leading recognised professional society devoted to the advancement of Science and Technology, Electronics, Telecommunications and IT. The society has been founded in the year 1953 and the same is the National Apex Professional body of Electronics and Telecommunication, Computer Science and IT Professionals. It serves more than 1,25,000 members (including corporate, student and ISF members) through 63 centres spread all over India and abroad. According to him, the institution provides leadership in science and technical areas which are of direct importance for the national development and economy. He further stated that the Government of India has recognised IETE as a Scientific and Industrial Research Organisation (SIRO) and has also notified it as an Educational Institution of National Eminence. According to him, the objectives of IETE are to focus on advancing Electro Technology and other allied subjects. The society conducts and sponsors technical buildings, conferences, symposia and

8 CS (OS)- 195/2008

9 WP (C) 5992/2014

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exhibitions all over India, publishes technical journals, provides continued education as well as career advancement opportunities to its members.

7. Learned counsel appearing on behalf of the petitioner pointed out from various documents that some of the projects being carried out by the respondent No.3-IETE are supported by the department of Information Technology, Government of India and various programs have been organised by the society in collaboration with the government departments. He pointed out that various research groups have been established for conducting research in the matters of public importance. While placing reliance on one of the communications dated 07.02.2002 he stated that for the purposes of construction of infrastructure, various organisations have supported respondent-IETE, names thereof have been specifically pointed out from the said communication. According to him, even the Ministry of Education, Government of India, had offered an interest free loan for the construction of it's headquarter building. He stated that the Department of Post and Telegram, Department of Telecommunication, Department of Electronics, Department of Science and Technology are some of the funding agencies and donors who have been supporting respondent No.3-IETE for various activities and events.

8. Various admit cards have been placed on record to indicate that this society also conducts examinations which is a public function. The role of the Board of examination, Ministry of Affairs etc., has been pointed out to support his contention.

9. Learned counsel appearing on behalf of the petitioner has also placed on record a copy of the Memorandum of Understanding (MoU) dated 23^rdMarch, 2005 entered into between Centre for Development

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of Advanced Computing, Noida and respondent No.3-IETE wherein various arrangements have been arrived at which relate to government functions. Various other MoUs have been placed on record to indicate that this society is the helping hand of the government agencies.

10. Learned counsel appearing on behalf of the petitioner has also placed reliance on the decisions of the Hon'ble Supreme Court in the case of Federal Bank Ltd. v. Sagar Tomas and Ors.,¹² K.K Saksena

v. International Commission on Irrigation and Drainage and others¹³, Ajay Jadeja v. Union of India¹⁴, Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust vs. V. R. Rudani¹⁵, BCCI v. Cricket Association of Bihar¹⁶, Ramesh Ahluwalia vs. State of Punjab and Ors,¹⁷ABL International Ltd. and Anr. Vs. Export Credit Guarantee Corporation of India Ltd. and ors¹⁸., Binny Ltd and Anr. v. V. Sadasivan and ors.¹⁹St. Mary's Education Society and Anr. Vs. Rajendra Prasad Bhargava and ors.,²⁰Zee Telefilms Ltd. and Anr. S. Union of India and ors.²¹,

Uttam Chand Rawat v. State of U.P ²² and decisions of this court in the cases of Bar Council of Delhi &Ors. v. Surjit Singh and others²³ and Abhay Kumar v. Bar Council of Delhi &Ors²⁴.

11. I have heard learned counsel appearing for the parties and perused the record.

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12. In the present case, the preliminary objection as to whether respondent No.3-IETE comes within the scope of 'State' or 'other authorities' under Article 12 of the Constitution deserves to be considered.

13. Respondent No.3-IETE was established as a society under the Societies Registration Act, 1860. The objectives and purposes of respondent No.3-IETE are laid down in Clause 4 of its AoA. The relevant clauses are reproduced as under:

"4. To promote the general advancement of Telecommunication Engineering, Electronics, Computer Science and Engineering, Information Technology and allied subjects and their applications and to facilitate the exchange of information and ideas on these subjects amongst the members of the Institution and otherwise, and for the purpose:

(i) to hold meetings of the Institution for reading and discussing communications bearing upon Telecommunication Engineering, Electronics, Computer Science and Engineering, Information Technology and allied subjects, or the application thereof or upon subjects relating thereto,

(ii) to hold and promote Exhibitions of instruments, apparatus, machinery or other appliances connected with Telecommunication Engineering, Electronics, Computer Science and Engineering, Information Technology and allied subjects or their applications,

(iii) to print, publish, sell, lend or distribute proceedings or report of the Institution or any papers or communications, works or treatise on Telecommunication

Engineering, Electronics, Computer Science and Engineering, Information Technology and allied subjects or their applications, or any abstracts thereof or extracts therefrom,

(iv) to encourage research, and promote the development of appropriate technologies in Telecommunication Engineering, Electronics, Computer Science and Engineering, Information Technology and allied subjects and their applications,

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(v) to make grants of money, books, apparatus or otherwise for the purpose of promoting invention and research in Telecommunication Engineering, Electronics, Computer Science and Engineering, Information Technology and allied subjects or their applications or in subjects connected therewith,

(vi) to establish professional and technical standards in Telecommunications and conduct such test and/or examinations as may be required for this purpose,

(vii) to undertake such other activities which will further the objects and aims of the Institution and advance the science and technique of

Telecommunications, Electronics, Computer Science and Engineering, Information Technology and allied subjects,

(viii) to undertake educational activities including online education, skill development, R&D, Consultancy, leading to conduction of Exams for different courses and issue of certificates to its student members."

14. Respondent No.3-IETE has a GC which does not include any government agency as its member. Clause 11 of the AoA of respondent No.3-IETE provides for the governance and control of the Institution which rests with the GC. The relevant clause is reproduced as under:

"11. The governance and control of the Institution and its affairs shall be vested in the Governing Council subject to the provisions of this Constitution and to the Byelaws of the Institution. The business of the Governing Council shall be conducted in such manner as the Governing Council may from time to time, prescribe."

15. As per Clause 14 of the AoA, the GC alone is the final authority for the induction of new members to respondent No.3-IETE:

"14. The Governing Council shall alone have power to decide conclusively respecting each person proposed for, or seeking admission to, any class of membership of the Institution whether he has or has not fulfilled such conditions as are applicable to his case."

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16. The AoA would determine the status of respondent No.3-IETE. The same does not indicate any in-built government control or government representation in the GC of respondent No.3-IETE. The operation of respondent No.3-IETE is governed by its AoA and is not governed by any statute. It is not denied that respondent No.3-IETE is registered under Societies Registration Act, 1860 but all societies registered under the said Act would not ipso facto attain the status of 'State' or 'other authorities' under Article 12 of the Constitution. The nature of activities being performed by respondent No.3-IETE is not governed by any statute. The functioning of respondent No.3-IETE is fully governed by its AoA. The GC is empowered to incorporate any amendment in its AoA without approval from the Government.

17. The documents relied upon by learned counsel for the petitioner undoubtedly indicate that various MoUs have been entered into between Government agencies and respondent No.3-IETE. The research being conducted by IETE may have been rendering assistance to the Government bodies but these are not factors which would decide the status of IETE as a 'State' or 'other authorities'. The factors which would determine the status of respondent No.3-IETE are whether there is pervasive control (financial or administrative) of the State to the extent that respondent-IETE itself has limited control and whether it performs a public duty or State function.

18. As observed by the Hon'ble Supreme Court in the case of

Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors²⁵, in order to be a 'State' under Article 12 of the Constitution, the authority in question should be under the pervasive control of the Government. The ambit of 'other authorities' under Article 12 of the Constitution is now well settled. As laid down by the Hon'ble

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Supreme Court in the case of R.D. Shetty vs. International Airport Authority of India and Ors.,²⁶ and propounded in Ajay Hasia and Ors. v. Khalid Mujib Seravardi and Ors²⁷, private institutions, including societies that perform a public function are amenable to the writ jurisdiction of this court.

19. In the present petition, the petitioner has failed to prove that the Government exerts any control, pervasive or otherwise, over respondent No.3-IETE. The GC is neither shown to have any member nominated by the Government nor has the extent of funds received by respondent No.3-IETE from the Government. Respondent No.3-IETE only works to foster open communication and exchange of information in these subjects. It is not involved in the policy decisions of the Government and does not perform any function that is carried out by the State in its sovereign capacity. It can be contended that by virtue of the fact that respondent No.3-IETE works to maintain a high professional standard for engineers, it is discharging a public duty as a private institution. However, that fact cannot be taken into account in a vacuum and a holistic view of the primary functions of the institution has to be considered. Reliance can be placed on the decision of the Hon'ble Supreme Court in the case of Kishor Madhukar Pinglikar v. Automotive Research Association of India²⁸.

20. This court in Dr. Jitarani Udgata (supra) held that the Gems and Jewellery Export Promotion Council does not fall within the ambit of State under Article 12 of the Constitution as any private body with some nexus to the State cannot be deemed to be under the ambit of Article 12 of the Constitution. It also held that if the funds provided by the Government are solely for the purpose of specific schemes and

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projects, then it is the prerogative of the Government to ensure that the funds are not misused and hence it has the right to ask for a compliance report. In the present case, as is evident from the data provided by respondent No. 11 in his counter reply, the earnings of the institution are mainly from subscription by its members (Annexures R- 11-B to R-11-D) and the grants from the Government are only to be utilised for specific purposes (Annexure R-11 E). Thus, it cannot be said that the financial control of the Government is pervasive. Para Nos. 25, 26, 30, 32 and 37 of the decision in the case of Dr. Jitarani Udgata (supra) are reproduced as under:-

25. With regard to this, each case must 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, then one could agree with an entity being bestowed with government 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 [Refer to Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421, R.D. Shetty v. International Airport Authority of India (supra), Ajay Hasia v. Khalid MujibSehravardi (supra), and Som Prakash Rekhi v. Union of India, (1981) 1 SCC 449].

26. It is further well settled that Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the government within the sweep of the expression "State". A wide enlargement of the meaning must be tempered by a wise limitation. It must not be lost sight of that in the modern concept of Welfare State, independent institution, corporation and agency are generally subject to State control. The State control does not render such bodies as "State" under Article 12. The State control, however vast and pervasive, is not determinative. The financial contribution by the State is also not conclusive. The combination of State aid coupled with an

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unusual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the State may largely point out that the body is "State". If the government operates behind a corporate veil, carrying out governmental activity and governmental functions of vital public importance, there may be little difficulty in identifying the body as "State" within the meaning of Article 12 of the Constitution [Refer toP.K. Ramachandra Iyer v. Union of India, (1984) 2 SCC 141, Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, (1986) 3 SCC 156, and TekrajVasandi @ K.L. Basandhi v. Union of India, (1988) 1 SCC 236].

30. A perusal of the aforementioned Judgements bring to the fore that the liberal interpretation that has been given to

"State" and "other authorities" under Article 12 has been circumscribed over the years to include only those authorities that can explicitly be deemed to be under the control of the State and performs a public duty or State function. The control that must be exercised by the State over the authority should be pervasive in nature to the extent that the authority should have limited autonomy. These are the broad guidelines that must be borne in mind when venturing into the question as to whether or not a certain authorities can be termed to be a "State". In this context, it becomes pertinent to analyse the provisions of the MoA, AoA and other documents to discern whether GJEPC can be brought within the net of "other authorities" for the purpose of Article 12.

32. A perusal of the aforementioned Clauses of the AoA and the MoA demonstrates the functions of the GJEPC which is primarily to support, protect, maintain, increase and promote the export of gems and jewellery, including pearls, coloured gemstones, diamonds, synthetic stones, costume (fashion) jewellery, gold and other precious metal jewellery and articles thereof. The primary purpose of GJEPC is to act as a Nodal Agency/interface between the exporters and the Government. The Council being a collective body of the exporters places the interests/problems faced by the exporters before the Government so that the Government can take such decisions which would promote the export of gems and jewellery. The Council, therefore, does not carry out the policy decisions of the Government or is in any way relevant to the decision-making process of the Government regarding exports of these articles. The CoA primarily consists of exporters with only three out of

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the 27 members being Government nominees. It cannot, therefore, be said that the Council does anything which is even remotely connected with the activities which are conducted by the instrumentalities of the State. The Supreme Court has noted that while it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the Sate in its sovereign capacity [Refer to G. Bassi Reddy v. International Crops Research Institute, (2003) 4 SCC 225, and Ramkrishna Mission and Anr. v. Kago Kunya and Ors., (2019) 16 SCC 303]. This Court is of the view that the function of GJEPC does not pass the "public function" test and that it cannot be said to be performing any duty that is similar to that performed by the State in its sovereign capacity.

37. Consequently, a deep dive into the AoA and MoA of the GJEPC only brings forth the understanding that the GJEPC is a nodal agency, meant to mediate between exporters of gems and jewellery, and the Central Government. The function performed by the GJEPC cannot be termed as "public duty" and any administrative or financial hold that the Central Government is deemed to have over GJEPC is far from pervasive. The GJEPC retains its autonomous character and it is the CoA which not only looks after the affairs of the GJEPC, but is also empowered to make rules and regulations with regard to conditions of service, appointment, elections, etc. GJEPC does not satisfy any of the requirements or tests laid down by various Judgements of the Supreme Court for establishing whether or not an authority can be deemed to be a "State" under Article

12. The reliance of the Appellant on All India Garment Exporters Common Cause Guild and Ors. v. Union of India and Anr. (supra) is misplaced as the learned Single Judge in the matter therein had observed that the AEPC was a statutory body that received support from the Central Government

"financially or otherwise", which is not the case in the instant matter.

21. The status of the respondent No.3-IETE as has been seen, is not of a 'Government Company' or 'public sector undertaking'. The same is not created by the 'State' for carrying on its activities. It is not governed by any statute for the purposes of administrating its functioning. It is thus a private body having no statutory power and is

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not supported by a State Act. A private organisation can also discharge a public duty to maintain high professional standards or to set up unique example in the society but that itself is not sufficient to bring it within the folds of the expression 'State' under Article 12 of the Constitution of India.

22. It is thus held that respondent No. 3-IETE does not fall within the ambit of 'State' or 'other authorities' under Article 12 of the Constitution of India and, therefore, no writ petition would be maintainable against the respondent No. 3.

23. The petition is accordingly, dismissed alongwith pending applications.

24. Needless to state that the petitioner is at liberty to avail any other alternate remedy, in accordance with law. Nothing expressed in the instant order would be construed to be an expression on the merits of the case.

(PURUSHAINDRA KUMAR KAURAV)

JUDGE

MARCH 07, 2023

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