Hasibur Rahmaan & Others vs Union Of India & Others

Ramesh Ranganathan, CJ

This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No. 736 of 2018 dated 30.10.2018.

The appellants herein filed the said writ petition questioning the action of the "Science & Technology Entrepreneurship Park" (STEP) in terminating their services. While they appear to have initially contended that STEP was a part of the Indian Institute of Technology Roorkee (IIT), the learned Single Judge has, in the order under appeal, noted that, since they were never employed by IIT Roorkee and continued under the employment of STEP which is a self-financed society, they were disentitled to claim any relief against IIT Roorkee. The learned Single Judge also held that the petitioners were disentitled for grant of relief on the ground that the Society, under which they worked and which had terminated their services, was not an instrumentality of the State.

Ms. Neetu Singh, learned counsel for the appellants, would draw our attention to the averments, in the writ affidavit and the counter affidavit, that STEP was initially established and funded by the Government of India; and the Director of the IIT Roorkee is also the Chairman of the STEP. Learned counsel would submit that "STEP" would fall within the ambit of Article 12 of the Constitution of India. On the other hand Mr. Piyush Garg, learned counsel for the respondent nos.3 to 5, would submit that STEP is a self-financing body; while funds were initially granted by the Government of India to establish STEP, no funds have been made available by the Government of India to STEP for the past more than 15 years; and, since STEP is a society registered under the Societies Registration Act, it is not an instrumentality of the State under Article 12 of the Constitution of India.

The Constitution Bench of the Supreme Court, in Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology & others, (2002) 5 SCC 111, has held that the question, which necessitates examination in each case, is 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 the meaning of Article 12 of the Constitution of India; and in case the control is merely regulatory, whether under a statute or otherwise, it would not serve to make the body a "State".

In the light of the law declared by the Supreme Court in Pradeep Kumar Biswas, the facts of each case must be examined to determine whether or not the body, against which relief is sought in the writ petition, is an instrumentality of the State under Article 12 of the Constitution of India.

Ms. Neetu Singh, learned counsel for the appellant, would contend, placing reliance on the judgment of the Supreme Court in Central Inland Water Transport Corporation Ltd. & another vs. Brojo Nath Ganguly & another, (1986) 3 SCC 156, that, since the petitioners were all employed with STEP for the past more than two decades, termination of their contract of employment is unconscionable and in violation of Section

23 of Indian Contract Act. The fact, however, remains that it is only if STEP is held to be an instrumentality of the State under Article 12 of the Constitution of India, would the question, whether termination of the services of the petitioners is in violation of Section 23 of the Indian Contract Act, necessitate examination in writ proceedings under Article 226 of the Constitution of India.

Ms. Neetu Singh, learned counsel for the appellants, would request that the petitioners be given an opportunity to amend the pleadings to establish that "STEP" is an instrumentality of the State within the meaning of Article 12 of the Constitution of India. The scope of interference in an intra-court appeal is extremely limited; and this Court would not, ordinarily, examine this question for the first time in an intra-court appeal, that too after permitting the parties to amend their respective pleadings.

Ms. Neetu Singh, learned counsel for the appellants, would then request this court to permit the petitioners to withdraw the writ petition itself with liberty to file a writ petition afresh raising all such contentions, as are available to them in law, to establish that STEP is an instrumentality of the State under Article 12 of the Constitution of India. Granting liberty as sought for, the order under appeal is set-aside, the writ petition is instead dismissed as withdrawn, and the writ appeal is disposed of accordingly. No costs.