JUDGMENT Sanjay Misra, J.
1. By means of this writ petition the petitioner seeks quashing of the order dated 3.6.1991 (Annexure-1 to the writ. petition ) whereby the charge of malpractice adopted by the petitioner at the examination held by the respondent has been found to be established and to such effect the result has been cancelled, the petitioner has been debarred from appearing at the examination up to 31.5.1994 and the respondent has decided to report the name of the petitioner to his employer Bank. It has been further prayed that the said impugned order may not be given effect to.
2. The petitioner is an employee of Punjab National Bank and at the relevant time he was working in Modi Nagar, U.P. He appeared in the examination conducted by the respondent known as CA II-B Part I examination held in April/ May 1989 at the Meerut centre. It is alleged that he passed in lour papers but he failed in the paper of book keeping. The petitioner alleges that he again appeared in the paper of book keeping in December 1989 but he again failed. In his third attempt in the examination of June 1990 the result of the petitioner was withheld on the allegation that he had committed malpractice of copying in the previous examination held in April/May 1989. The allegation of copying was to the effect that it the answer to question No. 6 given by the petitioner was similar to the answer of another candidate Sri Kharak Singh. A show cause notice was issued to the petitioner to which the petitioner sent his reply. After considering the said reply, the respondent has passed the impugned order finding the charge to be established.
3. A counter affidavit has been filed by the respondent stating that on scrutiny of answer paper of the petitioner and the said Sri Kharak Singh in the subject of book keeping it was found that the answer to question No. 6 consisted of common mistake. It has been stated that final decision was taken after giving opportunity to the petitioner and that malpractice committed by the petitioner has been established beyond reasonable doubt.
4. The petitioner has filed a rejoinder affidavit and reiterated his averments made in the writ petition. He has stated that the respondent is 'State' within the meaning of Article 12 and for the purpose of Article 226 of the Constitution of India. That this court has territorial jurisdiction in as much as the examination was conducted at Meerut and his result was received by him within the State of U.P. He has denied that the charge made against him is true and has further stated that the respondents have communicated the same to his employer who has issued show cause notice to him.
5. Heard Sri B. Dayal, learned counsel for the petitioner and Sri Yashwant Verma for the respondents.
6. A preliminary objection has been raised by the respondents to the effect that this writ petition is not maintainable against the respondent Indian Institute of Bankers which is neither a 'State' within the meaning of Article 12 of the Constitution of India nor it is 'any other authority' for the purpose of Article 226 of the Constitution of India.
7. Sri Yashwant Verma learned counsel for the respondent has submitted that the Indian Institute of Bankers (hereinafter referred to as the Institute) is a company incorporated under the Indian Companies Act 1913 on 30.4.1928. In the counter affidavit it has been stated that the objects for which the institute was established, are interalia, to encourage the study of theory of Banking and for that purpose to institute a scheme of examination and give certificates, scholarship and prizes to promote information on banking and allied subjects by lecturers, discussions, books correspondence with public bodies and individuals. The management of the institute is entrusted to a council comprising of maximum of 30 members who are elected at the Annual General Body meeting, 1/3 of the council members retire by rotation. The President of the Institute is elected by the members of the instituttre at the general meeting in terms of Section 69 of the Articles of association of the Institute. As a matter of convention the Governor of Reserve Bank of India is elected as the president of institute, though not mandatory and is open to the members of the Institute to elect any other person as its President. All the members of the institute are eligible for being elected by its members. The membership is open only to serving employees of any public/ private sector banks and the financial institutions. There are five classes of members in the institute viz. Fellows. Associates, Certificated Associates, Ordinary members and Institutional members. The Fellows of the institute are elected by the council in terms of Article 5 of the Articles of Association from amongst those members who have put not less than 10 years of service in Banking establishment, or any other member institutions, or from those who have passed any examinations instituted or recognized by the council etc. The Certificated Associates consist of those members of the Institute who have gained the certificate of the institute after having passed pan I and Part II of the Associate Examinations. The ordinary membership is open to clerical, supervisory and subordinate staff of recognised banks, financial institutions operating in India. The Chief Secretary (now Chief Executive Officer) admits the ordinary members on application being made in the prescribed form. Institute members consist of banking establishment both in nationalized as well as private sector. The members are required to pay subscription as determined by the council from time to time. The Institute conducts Associate Examination consisting of Part I and part II and also the correspondence course for the benefit of members preparing all the subjects of part I and part II examination. The examination is open only to the members of the Institute for the benefit of the employees whose subscription is not in arrears. Eminent Bankers, businessmen and industrialists of the country have promoted the institute. Many of the Banks including Foreign Banks are the institutional members of the Institute. The member banks accord recognition to the certificates, diplomas etc. awarded by the Institute and on the basis thereof the certificate holders will get the increment and the advantage in the matter of promotion. The Central Government or the State Government does not hold share capital of the institute nor the institute dependent on the Government for financial assistance.
8. In support of his submissions Sri Verma has placed reliance on the decision of the Full Bench of the Punjab and Haryana High Court in Ram Prasad v. Indian Institute of Bankers reported in AIR 1992 P & H page 1. In reply Sri B. Dayal learned counsel for the petitioner has cited the decision of the Gauhati High Court in the case of Indian Institute of Bankers v. Jogabrats Deb and Ors. reported in AIR 2003 Gauhati page 6.
9. The full Bench of the Punjab and Haryana High Court in the case of Ram Prasad (Supra ) held that the Indian Institute of Bankers is not an instrumentality of the State within the meaning of Article 12 or for the purposes of Article 226 of the Constitution, In arriving at such conclusion the Full Bench applied the tests formulated by a constitution Bench of the Supreme Court in the case of Ajai Hasia v. Khalid Mujib Sehravardi and Ors. (AIR 1981 SC 487) to determine the question as to whether the Indian Institute of Bankers is an instrumentality of the State within the meaning of Article 12 and for Article 226 of the Constitution of India. While applying the first test as to whether the entire share capital of the Institute; was held by the Government it was concluded that the share capital of the institute is not held by the central government of the State Government. On the issue of financial assistance it was found that the institute has independent sources of income and it is not dependant on the government for any financial support. Although the system of examination conducted by the institute is peculiar to the institute in the sense that it is a pioneer and holds monopoly but the status is neither state conferred nor State protected. It was held that there is no law prohibiting any other company with similar aims and objects to be incorporated, therefore, the third to also stood rot satisfied The Full Bench has further held that the Article of Associations of the Institute provide for the election of the President from amongst its members and the election of the Governor of Reserve Bank of India as the President of the Institute appears to be a mutually acceptable arrangement both for the Institute as well as the Governor of Reserve Bank of India to continue such convention. It was found that the guidance, advice and counsel derived by the Institute from the Banking Commission do not go to show deep and pervasive State control over the Institute. There was no provision which would make any directive of the Government binding on the Institute. It was argued before the Full Bench that the functions of the Institute were of public importance and closely related to governmental functions in as much as one of the avowed objects of the Institute is to impart education in banking. Placing reliance on the decision of the Supreme Court in R.D. Shetty v. International Airport Authority of India (AIR 1979 SC 1628) on the test of public or governmental character of function, it was held that the filth test is also not satisfied. Therefore, it was held in paragraph 30 as under:-
" for the foregoing reasons, we find that applying the tests laid down by the Supreme Court and other well recognized conditions for mandamus, the Indian Institute of Bankers is not an instrumentality of the State within the meaning of Article 12 or for the purposes of Article 226 of the Constitution. We, therefore, affirm the view of the learned single Judge in Virinder Kumar Kaura v. Indian Institute of Bankers, CWP No. 1116 of 1971, decided on March 16,1972. though for altogether different reasons."
9. The scope of Article 12 of the Constitution was considered by a constitution bench of the Hon'ble Supreme Court in the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002)5 SCC 111. The multiple test for determining whether a particular corporation or body can be held to be included within the definition of State under Article 12 was laid down in the opinion of the majority as follows:-
"The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not 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 he 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."
10. The minority opinion expressed was that the tests laid down in Ajay Hasia's case were relevant in determining whether an entity was an instrumentality or an agency of the State and it was held as quoted here "(1) Simply by holding a legal entity to be an instrumentality or agency of the State it does not necessarily become 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 the 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 oil 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 government. 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 given case, depending on the facts and circumstances, an authority may also be found to he an instrumentality or ageing of the State find 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 "functional" tests. The propounder of the tests 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 undeliberated. In our opinion, and keeping in view the meaning which "authority" carries, the question whether an entity is an "authority" cannot he answered by applying Ajay Hasia tests.
(2) The tests laid down in Ajay Hasia 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 in the 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 he the State, the person alleging it to be so must satisfy the court of brooding presence of the Government or deep and pervasive control of the Government so as to hold it to be an instrumentality or agency of the State."
11. While determining whether the Indian Institute of Bankers ( respondent herein) is a 'State' or any other Authority within the meaning of Article 12 of the Constitution it has to be ascertained whether the State has financial, functional and administrative control and such control over the Institution is deep and pervasive.
12. The petitioner has in the writ petition stated that the respondent is an instrumentality of the central government and is under control and governed by the Reserve Bank of India. Its examination is recognized By ail schedule Banks in India and the certificate is issued by the President of the Institute who is the governor of the Reserve Bank of India. A part from such averments made in the writ petition the petitioner has not placed ion record any document like Article of Association, or any other record to establish the averments that the respondent is an instrumentality of the central Government.
13. In the counter affidavit the respondent has come forward. with the case that the Institute does not perform statutory duties nor discharges any public duties in compliance of any law. The certificate issued to the employees who pass the examination conducted by the Institute does not confer any Service benefits by its own force. The functions of the institute are not related to government functions. The objects of the institute and its constitution has also been stated. From the said averments in the. counter affidavit and its vague denial by the petitioner it is not established that the State of Central Government have financial functional and administrative control over his Institute in light of the law laid down by the Apex court. However, the tests for such determination laid down in Ajay Hasia's case (supra) have been applied by a Full Bench of Punjab and Haryana High Court in the case of Ram Prasad (supra). There is nothing on record nor submission of the learned counsel for the petitioner to convince this court that the said findings of the Full Bench are in any manner not in accordance with the law laid down by the Apex Court. Such being the circumstances the petitioner has failed to meet the preliminary objection of the respondent Institute.
14. Considering the entire facts and circumstances brought on record I respectfully agree with the view taken by the Full Bench in the case of Ram Prasad (supra) holding that the respondent Institute cannot be considered to be an instrumentality of State within the meaning of Article 12 of the Constitution of India or for the purpose of Article 226 of the Constitution. The preliminary objection raised by the respondent has substance and it is upheld. This writ petition is thus not maintainable against the respondent Institute.
15. Learned counsel for the petitioned has cited the decision of the Gauhati High Court in the cases of Indian Institute of Bankers and Ors. v. Jogabrats Deb and Anr. (supra) and contended that in view of paragraph 16 of the judgment similar directions may be issued by this court Paragraph 16 reads as under:-
"Before parting with the records, I would like to make it clear that since the matter relates to the examination far 1988 and respondent, No. 1 is also a permanent employee of the state Bank of India and also considering the fact that penalty imposed upon the respondent No. 1 has already become infructuos, no disciplinary action whatsoever needs be taken against the respondent No. 1 in view of the penalties Imposed upon him by the petitioner No. 1 At this stage, Mr. Sharma, learned counsel for the petitioner has fairly indicated that no such action shall be taken against him as the entire matter involved in the Title Suit as noted above, has already become infructious."
16. It is seen that the directions as issued above were in a Civil Revision filed before the High Court under the provisions of the Code of Civil Procedure in proceedings arising out of an original suit. In the present case the petitioner has approached this court directly invoking the writ Jurisdiction of this court. It has been held above that this writ petition is not maintainable against the respondent Institute, therefore, no such direction can be issued by this court.
17. For the reasons as have been stated above, this writ petition is not maintainable against the respondent Institute and is, therefore, dismissed. However, there will be no order as to costs.