Gujarat High Court
Himanshu Dineshchandra Parekh vs Institute For Plasma Research on 4 April, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
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Reserved On : 20/03/2025
Pronounced On : 04/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1366 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 4530 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/LETTERS PATENT APPEAL NO. 1366 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE BIREN
VAISHNAV
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
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HIMANSHU DINESHCHANDRA PAREKH
Versus
INSTITUTE FOR PLASMA RESEARCH & ORS.
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Appearance:
MR. SHALIN MEHTA, SENIOR COUNSEL WITH ADITI S RAOL(8128) for
the Appellant(s) No. 1
DELETED for the Respondent(s) No. 2,3
MR DG SHUKLA, ADVOCATE WITH MS.MESHWA BHATT, ADVOCATE for
the Respondent(s) No. 1
MS VYOMA K JHAVERI(6386) for the Respondent(s) No. 4
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CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
CAV JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
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BIREN VAISHNAV)
1 This appeal under Clause 15 of the Letters Patent
has been filed by the appellant who was the original
petitioner before the learned Single Judge. The learned
Single Judge, by an oral judgement dated 08.08.2024,
held that the petition filed by the petitioner is not
maintainable against the respondent No.1-Institute as the
Institute is not a "State" within the meaning of Article 12
of the Constitution of India.
1.1 Before the learned Single Judge, the petition was
filed by the appellant challenging the order dated
29.09.2015 removing the appellant from services from
the post of Engineer (S.C) as well as the order dated
21.12.2015 passed by the Director i.e. the Appellate
Authority.
2 Mr.Shalin Mehta, learned Senior Counsel appearing
with Ms.Aditi Raol, learned counsel for the appellant,
made the following submissions:
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2.1 Taking us through the Bye-laws of the Institute
annexed to the memo of the appeal, Mr.Mehta, learned
Senior Counsel, would submit that the threshold question
to be decided in this appeal is whether the Institute of
Plasma Research (I.P.R) is a "State" within the meaning
of Article 12 of the Constitution of India. Taking us
through the Bye-laws, Mr.Mehta, learned Senior Counsel,
would submit that apparent it is from the Bye-laws that
the Institute is an aided institution under the Department
of Atomic Energy, Government of India, and therefore,
under the administrative control of the Department of
Atomic Energy. The Bye-laws of the Institute came into
force from the date of approval by the Central
Government. Though the Institute is registered under the
Societies Registration Act, reading the Bye-laws would
indicate that the property of the Institute, namely, all
buildings, land, machinery, equipment and instruments
belong to the Department of Atomic Energy, which
indicates that the financial control of the Institute is with
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the Central Government.
2.2 Mr.Mehta, learned Senior Counsel, would submit
that even the administrative control of the Institute, as is
evident from reading the Constitution of the Government
Council is with the Department of Atomic Energy. Taking
us through Clause 6 of Chapter 2 of the Bye-laws,
Mr.Mehta, learned Senior Counsel, would submit that it is
evident on reading the composition of Governing Council
that the administrative control of the Department of the
Central Government is all pervasive. Secretary of the
Department of Atomic Energy is a Chairperson,
representative of the State Government, Secretary of
Education, Science and Technology, Government of
Gujarat is on the governing council. The two scientists on
the council are nominated by the Government of India. All
these indicate that the administrative control of the
Institute completely vests with the Central Government.
2.3 Taking us through the powers of Governing Council,
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Mr.Mehta, learned Senior Counsel, would submit that
Clause 18 indicates that the governing council has
various powers, however, they are subject to various
orders issued by the Government of India and the
Management of the Institute shall be under the
supervision of the Council. Further, reading the general
powers with regard to adoption of pay-scales, allowances
and the revision thereof and creation of posts which
needs prior approval of the Government of India, in
Mr,Mehta's submission would indicate control of the
State. In Mr.Mehta's submission, the fact that rules of
reservation have to be implemented and necessary
provisions have to be made for reservation of post in
matters of appointment and promotion also indicates
State control on the administrative functions of the
Institute.
2.4 As far as financial powers are concerned, reading
Bye-law 32, Mr.Mehta, learned Senior Counsel, would
submit that the fact that the provisions of the General
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Financial Rules of the Government of India are applicable
would also indicate financial control of the State. On the
aspect of financial control, Mr.Mehta, learned Senior
Counsel, would read Chapter 7 which deals with
conditions of service of it's employees and submit that the
fact that the conduct and disciplinary rules are made in
line with the Central Civil Services Rules warrants a
conclusion that even the financial control is with the
State.
2.5 Mr.Mehta, learned Senior Counsel, therefore in light
of the decision of the Hon'ble Supreme Court in the case
of Pradeep Kumar Biswas Vs. Indian Institute of
Chemical Biology & ors., reported in (2002) 5 SCC
111, would submit that there is no iota of doubt that in
light of the cumulative facts it is very well established
that the respondent body is functionally, financially and
administratively dominated by and under the control of
the Government. The control is pervasive. He would,
therefore, submit that in light of the decision in the case
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of Pradeep Kumar Biswas (supra), which was also
under the Societies Registration Act, the respondent-
Institute of Plasma Research is a State within the
meaning of Article 12 of the Constitution of India. Relying
on the decision of the Hon'ble Supreme Court in the case
of Board of Control for Cricket in India vs. Cricket
Assn. Of Bihar., reported in (2015) 3 SCC 251,
Mr.Mehta, learned Senior Counsel would submit that as
held by the Hon'ble Supreme Court in the case that it is
evident that even though the Institute is an autonomous
body but the same functions which are undertaken by the
institute, they may not be public functions, they remain in
the nature of public functions. Relying on the decision in
the case of M.P.State Cooperative Dairy Federation
Ltd vs. Rajneshkumar Jamindar., reported in (2009)
15 SCC 221, reading para 31 thereof, Mr.Mehta, learned
Senior Counsel, would submit that when the activity may
not be commercial activity, but if such an activity is
undertaken with a view to develop and achieve better
economic development, the body becomes State within
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the meaning of Article 12 of the Constitution of India.
2.6 Relying on a decision in the case of Virendra
Kumar Srivastava vs. U.P.Rajya Karmachari Kalyan
Nigam & Anr., reported in (2005) 1 SCC 149,
Mr.Mehta, learned Senior Counsel, would submit that as
held by the Hon'ble Supreme Court, when there is a
brooding presence of the government, the body would
become a State within the meaning of Article 12 of the
Constitution of India. On the submission of the counsel
for the I.P.R that the Bye-laws that are annexed to the
appeal, though of the year 2018 were not on record,
Mr.Mehta, learned Senior Counsel, would submit that
such Bye-laws can be considered as, when the petition
was decided, the Bye-laws of 2018 were in force and as
held by a decision of the Hon'ble Supreme Court in the
case of Mr.R.S.Madireddy (supra), the question of
issuing a writ would arise only when the writ petition is
being decided. He would, therefore, submit that on the
date when the learned Single Judge decided the petition,
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the Bye-laws annexed to the appeal memo were in force
which indicated that the respondent Institute is a State.
In support of his submissions, he would rely on
paragraphs 38 and 39 of the decision in the case of Mr.
R.S.Madireddy (supra).
3 Mr.D.G.Shukla, learned counsel appearing for the
Institute of Plasma Research, would submit that the
Institute is an autonomous body which is a grant-in-aid
Institute. It is a research Institute devoted to the
fundamental and applied studies in the area of plasma
physics. It is not a State within the meaning of Article 12
of the Constitution of India. Merely because Bye-laws of
2018 are read, it does not in any manner indicate
pervasive functional, financial and administrative control
of the government. In support of his submissions, he
would rely on the following decisions:
(I) Chander Mohan Khanna vs. National
Council of Educational Research & Training.,
reported in 1991 (4) SCC 578.
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(ii) Tekraj Vasandi alias, K.L. Basandhi vs.
Union of India., reported in 1988 (1) SCC 236.
(iii) Rambhai Ishwarbhai Patel vs. Gujarat State
Fertilizers & Chemicals Ltd., reported in (2011)
2 GLR 1197.
(iv) Kiritkumar K. Rawal vs. District Collector,
Mehsana & Ors., reported in 2006 (2) GLH 266.
(v) (Dr.) C.A.Shah vs. Gujarat Cancer &
Research Institute., reported in 1992 (2) GLH
(vi) Army Welfare Education Society, New
Delhi vs. Sunil Kumar Sharma., reported in 2024
(4) GLH 761.
4 Ms.Vyoma Jhaveri, learned advocate appearing for
respondent No.4, would support the submissions made by
Mr.D.G.Shukla, learned advocate for respondent No.1,
and submit that the Central Government does not
interfere in the day-to-day administration of the
management of the Institute, and therefore, it has a very
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limited role in such management, and therefore, it cannot
be said that the Central Government has functional,
financial and administrative control of the State.
5 Having heard the learned advocates appearing for
the respective parties, though the learned Single Judge
has, while holding that the respondent is not a State
within the meaning of Article 12 of the Constitution of
India, also ventured to decide the petition on merits,
during the course of submissions, it was requested by the
learned Senior Counsel Mr.Mehta, that in the event we
were to hold that the Institute is a "State" within the
meaning of Article 12 of the Constitution of India, then
even on merits, the Court should decide the matter rather
than remand the case to the learned Single Judge on the
issue of deciding on merits.
5.1 We note that the decision of the Hon'ble Supreme
Court in the case of Pradeep Kumar Biswas (supra), is
the foundation on which the edifice of the learned
Counsel for the appellant attempted to build his base in
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trying to convince us that the respondent Institute is a
"State" within the meaning of Article 12 of the
Constitution of India. Decisions subsequent thereto which
have been pressed into service, essentially are reiteration
of the position of law on the question of an institution
being a "State". But since the body before the Hon'ble
Supreme Court i.e. the Indian Institute of Chemical
Biology was also an educational institution and a
scientific and research organization, the judgement in the
case therefore was extensively pressed to assail the order
of the learned Single Judge, who held the respondent -
Institute in this case to be not a State.
5.2 Reading of the decision in the case of Pradeep
Kumar Biswas (supra), would indicate that the Hon'ble
Supreme Court found that the C.S.I.R i.e. the Council for
Scientific & Industrial Research was created by the
government to carry on in an organized manner what was
done earlier by the Department of Commerce of the
Central Government. It was setup in the national interest
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to further the economic welfare of the Society by
fostering with it industrial development in the country. In
the words of Hon'ble Supreme Court, such a function is
fundamental to the governance of the country.
5.3 On perusal of the rules and regulations of the
research institute, the Hon'ble Supreme Court found that
there was a dominant role played by the Government of
India in the governing body of the CSIR. The Prime
Minister of India was the Ex-Officio President of the
Society. The control of the government was ubiquitous.
As far as the financial position is concerned, the Hon'ble
Supreme Court found that at least 70% of the finance of
the CSIR were available from the grants of the
Government of India and the accounts were audited by
the Comptroller and Auditor General and placed before
the table of both the Houses of Parliament. Moreover, the
Hon'ble Supreme Court found that on 31.10.1986, the
Union of India had issued a Notification under Sec.14(2)
of the Administrative Tribunals Act, 1985, notifying the
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Institute as being a Society owned and controlled by the
government.
5.4 Based on these parameters as adopted by the
Hon'ble Supreme Court, the Apex Court found that the
control of the State was not merely regulatory but it was
established that the body was functionally, financially and
administratively dominated or be under the control of the
government. Paragraphs 40, 42, 44, 45 and 47 to 58 read
as under:
"40 The picture that ultimately emerges is that the
tests formulated in Ajay Hasia are not 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
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 Article 12. On
the other hand, it would not serve to make the body
a State.
XXX XXXX XXXX
42 On 27-4-1940, the Board of Scientific and
Industrial Research and on 1-2-1941, the Industrial
Research Utilisation Committee were set up by the
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Department of Commerce, Government of India with
the broad objective of promoting industrial growth
in this country. On 14-1-1941, a Resolution was
passed by the Legislative Assembly and accepted by
the Government of India to the following effect:-
"This Assembly recommends to the Governor-
General-in-Council that a fund called the
Industrial Research Fund be constituted, for
the purpose of fostering industrial development
in this country and that provision be made in
the budget for an annual grant of rupees ten
lakhs to the fund for a period of five years."
XXX XXX XXX
44 The 26-9-1942 Resolution had provided that the
functions of CSIR would be:
(a) to implement and give effect to the following
resolution moved by the Hon'ble Dewan Bahadur Sir
A.R.Mudaliar and passed by the Legislative
Assembly on 14-11-1941 and accepted by the
Government of India;...
(b) the promotion, guidance and coordination of
scientific and industrial research in India including
the institution and the financing of specific
researches:
(c) the establishment or development and
assistance to special institutions or department of
existing institutions for scientific study of
fellowships;
(d) the establishment and award of research
studentships and fellowships:
(e) the utilisation of the results of the researches
conducted under the auspices of the Council towards
the development of industries in the country and the
payment of a share of royalties arising out of the
development of the results of researches to those
who are considered as having contributed towards
the pursuit of such researches;
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(f) the establishment, maintenance and
management of laboratories, workshops, institutes,
and organisation to further scientific and industrial
research and utilise and exploit for purposes of
experiment or otherwise any discovery or invention
likely to be of use to Indian industries;
(g) the collection and dissemination or information
in regard not only research but to industrial matters
generally;
(h) publication of scientific papers and a journal of
industrial resolution mentioned in (a) above.
45 These objects which have been incorporated in
the memorandum of association of CSIR manifestly
demonstrate that CSIR was set up in the national
interest to further the economic welfare of the
society by fostering planned industrial development
in the country. That such a function is fundamental
to the governance of the country has already been
held by a Constitution Bench of this Court as far
back as in 1967 in Rajasthan SEB v. Mohan Lal,
where it was said:
"The State, as defined in Article 12, is thus
comprehended to include bodies created for the
purpose of promoting the educational and
economic interests of the people."
XXX XXX XXX
47 Incidentally, CSIR was and continues to be a
non-profit-making organization and according to
clause 4 of CSIR's memorandum of association, all
its income and property, however derived shall be
applied only "towards the promotion of those objects
subject nevertheless in respect of the expenditure to
such limitations as the Government of India may
from time to time impose".
Management and control
48 When the Government of India resolved to set
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up CSIR on 26-2-1942, it also decided that the
Governing Body would consist of the following
members:
(1) The Honourable Member of the Council of
His Excellency the Governor-General in charge
of the portfolio of Commerce (ex officio).
(2) A representative of the Commerce
Department of the Government of India,
appointed by the Government of India.
(3) A representative of the Finance
Department of the Government of India,
appointed by the Government of India.
(4) Two members of the Board of Scientific
and Industrial Research elected by the said
Board.
(5) Two members of the Industrial Research
Utilisation Committee elected by the said
Committee.
(6) The Director of Scientific and Industrial
Research.
(7) One or more members to be nominated by
the Government of India to represent interests
not otherwise represented.
49 The present Rules and Regulations, 1999 of
CSIR provide that:
"(a) The Prime Minister of India shall be the ex
officio President of the Society.
(b) The Minister in charge of the ministry or
department, dealing with the Council of Scientific
and Industrial Research shall be the ex officio Vice-
President of the Society:
Provided that during any period when the
Prime Minister is also such Minister, any person
nominated in this behalf by the Prime Minister shall
be the Vice-President.
(c) Minister in charge of Finance and Industry (ex
officio).
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(d) The members of the Governing Body.
(e) Chairman, Advisory Board.
(f) Any other person or persons appointed by the
President, CSIR."
The Governing Body of the Society is constituted by
the:
(a) Director General;
(b) Member Finance;
(c) Director of two national laboratories;
(d) Two eminent Scientists / Technologists,
one of whom shall be from academia;
(e) Heads of two scientific departments /
agencies of the Government of India.
50 The dominant role played by the Government of
India in the Governing Body of CSIR is evident. The
Director General who is ex officio Secretary of the
Society is appointed by the Government of India
[Rule2(iii)]. The submission of the learned Attorney-
General that the Governing members is, having
regard to the facts on record, unacceptable.
Furthermore, the members of the Governing Body
who are not there ex officio are nominated by the
President and their membership can also be
terminated by him and the Prime Minister is the ex
officio President of CSIR. It was then said that
although the Prime Minister was ex officio President
of the Society but the power being exercised by the
Prime Minister is as President of the Society. This is
also the reasoning in Sabhajit Tewary. With respect,
the reasoning was and the submission is erroneous.
An ex officio appointment means that the
appointment is by virtue of the office; without any
other warrant or appointment than that resulting
from the holding of a particular office. Powers may
be exercised by an officer, in this case the Prime
Minister, which are not specifically conferred upon
him, but are necessarily implied in his office (as
Prime Minister), these are ex officio.
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51 The control of the Government in CSIR is
ubiquitous. The Governing Body is required to
administer, direct and control the affairs and funds
of the Society and shall, under Rule 43, have
authority "to exercise all the powers of the Society
subject nevertheless in respect of expenditure to
such limitations as the Government of India may
from time to time impose." The aspect of financial
control by the Government is not limited to this and
is considered separately. The Governing Body also
has the power to frame, amend or repeal the bye-
laws of CSIR but only with the sanction of the
Government of India. Bye-law 44 of the 1942 Bye-
laws had provided "any alteration in the bye-laws
shall require the prior approval of the Governor-
General-in-Council".
52 Rule 41 of the present Rules provides that:
"The President may review/amend/vary any of
the decisions of the Governing Body and pass
such orders as considered necessary to be
communicated to the Chairman of the
Governing Body within a month of the decision
of the Governing Body and such order shall be
binding on the Governing Body. The Chairman
may also refer any question which in his
opinion is of sufficient importance to justify
such a reference for decision of the President,
which shall be binding on the Governing Body."
53 Given the fact that the President of CSIR is the
Prime Minister, under this Rule the subjugation of
the Governing Body to the will of the Central
Government is complete.
54 As far as the employees of CSIR are concerned
the Central Civil Services (Classification, Control
and Appeal) Rules and the Central Civil Services
(Conduct) Rules, for the time being in force, are
from the outset applicable to them subject to the
modification that references to the "President" and
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"government servant" in the Conduct Rules would
be construed as "President of the Society" and
"officer and establishments in the service of the
Society" respectively (Bye-law 12). The scales of pay
applicable to all the employees of CSIR are those
prescribed by the Government of India for similar
personnel, save in the case of specialists (Bye-law
14) and in regard to all matters concerning service
conditions of employees of CSIR, the Fundamental
and Supplementary Rules framed by the Government
of India from time to time are also, under Bye-law 15
applicable to the employees of CSIR. Apart from this,
the rules/orders issued by the Government of India
regarding reservation of posts for SC/ST apply in
regard to appointments to posts to be made in CSIR
(Bye-law 19). CSIR cannot lay down or change the
terms and conditions of service of its employees and
any alteration in the bye-laws can be carried out
only with the approval of the Government of India
(Bye-law 20).
55 The initial capital of CSIR was Rs 10 lakhs,
made available pursuant to the Resolution of the
Legislative Assembly on 14-11-1941. Paragraph 5 of
the 26-9-1942 Resolution of the Government of India
pursuant to which CSIR was formed reads:
"The Government of India have decided that a
fund, viz., the Industrial Research Fund, should
be constituted by grants from the Central
revenues to which additions are to be made
from time to time as moneys flow in from other
sources. These 'other sources' will comprise
grants, if any, by Provincial Governments, by
industrialists for special or general purposes,
contributions from universities or local bodies,
donations or benefactions, royalties, etc.,
received from the development of the results of
industrial research, and miscellaneous receipts.
The Council of Scientific and Industrial
Research will exercise full powers in regard to
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the expenditure to be met out of the Industrial
Research Fund subject to its observing the bye-
laws framed by the Governing Body of the
Council, from time to time, with the approval of
the Governor General-in-Council, and to its
annual budget being approved by the Governor-
General-in-Council."
56 As already noted, the initial capital of Rs.10
lakhs was made available by the Central
Government. According to the statement handed up
to the Court on behalf of CSIR the present financial
position of CSIR is that at least 70% of the funds of
CSIR are available from grants made by the
Government of India. For example, out of the total
funds available to CSIR for the years 1998-99, 1999-
2000, 2000-01 of Rs.1023.68 crores, Rs.1136.69
crores and Rs.1219.04 crores respectively, the
Government of India has contributed Rs.713.32
crores, Rs.798.74 crores and Rs.877.88 crores. A
major portion of the balance of the funds available is
generated from charges for rendering research and
development woks by CSIR for projects such as the
Rajiv Gandhi Drinking Water Mission, Technology
Mission on oilseeds and pulses and maize or grant-
in-aid projects from other government departments.
Funds are also received by CSIR from sale proceeds
of its products, publications, royalties etc. Funds are
also received from investments but under Bye-law 6
of CSIR, funds of the Society may be invested only in
such manner as prescribed by the Government of
India. Some contributions are made by the State
Government and to a small extent by "individuals",
institutions and other agencies". The non-
governmental contributions are a pittance compared
to the massive governmental input.
57 As far as expenditure is concerned, under Bye-
law 1 as it stands at present, the budget estimates of
the Society are to be prepared by the Governing
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Body "keeping in view the instructions issued by the
Government of India from time to time in this
regard". Apart from an internal audit, the accounts
of CSIR are required to be audited by the
Comptroller and Auditor General and placed before
the table of both Houses of Parliament (Rule 69).
58 In the event of dissolution, unlike other
registered societies which are governed by Section
14 of the Societies Registration Act, 1860. the
members of CSIR have no say in the distribution of
its assets and under clause 5 of the memorandum of
association of CSIR, on the winding up or dissolution
of CSIR any property remaining after payment of all
debts shall have to be dealt with "in such manner as
the Government of India may determine". CSIR is
therefore both historically and in its present
operation subject to the financial control of the
Government of India. The assets and funds of CSIR
though nominally owned by the Society are in the
ultimate analysis owned by the Government."
5.5 Obviously therefore, deep and pervasive functional
administration and financial control vested in the Central
Government which made the Institute a "State" within
the meaning of Article 12 of the Constitution of India.
6 Considering these parameters as set out in the
decision in the case of Pradeep Kumar Biswas(supra),
when considered in the context of the respondent -
Institute, what we find from the affidavit-in-reply filed by
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the Institute as well as the Union of India, is that the
Institute of Plasma Research was initially a part of the
Physical Research Laboratory dealing in experimental
studies in plasma physics. It was an institute setup and
recognized for its contributions to fundamental and
applied research in plasma physics and associated
technologies. It was an experimental program supported
by the Department of Science & Technology. True it is
that the institute is a research and development
organization under the authority of Department of Atomic
Energy, but that itself would not make the institute a
State within the meaning of Article 12 of the Constitution
of India.
6.1 In light of the decision in the case of
Mr.R.S.Madireddy (supra), even if we were to consider
the Bye-laws, it is evident that the institute is an audited
institute under the Department of Atomic Energy. Though
the property of the institute vests in the Department of
Atomic Energy and the governing council in his position
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as Chairperson as the Secretary of Department of Atomic
Energy and Scientists nominated by the government, the
governing council being a permanent body, no
comparisons can be drawn with the one before the
Hon'ble Supreme Court in the case of Pradeep Kumar
Biswas(supra). The administrative control of the CSIR
before the Hon'ble Supreme Court was evident in light of
the fact that the Prime Minister was the President of the
Institute, which was not the case on hand in the facts
where we are dealing with the Institute of Plasma
Research before us.
6.2 Merely because the composition is of the
Government of India is mainly dominated by officers of
the Department of Atomic Energy, that itself will not
make it a body over which it cannot be said to be the
State's pervasive functional control, much less,
administrative control. Unlike what was brought before
the Hon'ble Supreme Court in the case of CSIR where
70% of the funding was by the State agency, nothing is on
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record before us as to what extent the Central
Government funds the institute. We may, further, fall
back upon the Memorandum of Association placed on
record which indicates that the institute shall maintain a
fund to which shall be credited: (I) all moneys provided by
Department of Atomic Energy, Government of India, (ii)
all fees and other charges received by the Institute and
(iii) all moneys received by the Institute by way of grant,
gifts, donations or other contributions. The accounts are
to be audited by the Chartered Accountant and unlike the
accounts that needed to be tabled on the House of the
Parliament after it being audited by the Comptroller &
Auditor General, in the case of Pradeep Kumar Biswas
(supra), the only administrative control is that the
Comptroller & Auditor General can have a right to
demand production of books of the institute.
6.3 The rules and regulations, as far as disciplinary
control is concerned, are framed by the institute and
merely because they are so done in line with the Central
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Rules or Central Civil Services Rules, that itself is not an
indication of the State's control. The line of decisions
which have been extensively referred to by the Apex
Court in the case of Pradeep Kumar Biswas (supra),
suggests that when it is pointed out to the Court that the
functional, financial and administrative control of an
institute is not pervasive but mere regulatory, merely
because of clauses like the one where it is shown that the
property vests with the Government of India or such
indicia which indicate only regulatory control of the State
would not make the institute "State" within the meaning
of Article 12 of the Constitution of India.
6.4 On having extensively gone through the Bye-laws so
projected by the learned Counsel for the appellant, these
do not persuade us to come to the conclusion that
functional, financial and administrative control of the
Central Government is all pervasive. At best it can be said
to be regulatory in nature, particularly when it has come
on record through the affidavit of the Union that the
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government does not interfere in the day-to-day
management of the institute. Merely regulatory
provisions which ensure that the activities are carried out
in consensus with the guidelines provided by the State,
would not make an agency a State within the meaning of
Article 12 of the Constitution of India.
6.5 As far as CSIR is concerned, in the case of Pradeep
Kumar Biswas (supra), the Council for Scientific &
Industrial Research was held to be such as it was
carrying out functions fundamental to the economic
welfare of the country which the Hon'ble Supreme Court
held to be a function fundamental to the governance of
the country. In addition thereto, there is no notification
under Sec.14 of the Administrative Tribunals' Act
notifying I.P.R to be "a Society governed and controlled
by the government so as to bring it within the purview of
the Central Administrative Tribunal".
7 In the facts of the present case, we find that the
institute is purely an academic and research institute
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setup as an autonomous research and development
organization and it can never be said that merely because
it is under the authority of Department of Atomic Energy
it becomes a State. The institute is largely involved in
theoretical and experimental studies in plasma science
including basic plasma physics which is a scientific and
research activity which cannot be termed to be
fundamental to the governance of the country and
certainly therefore, the Institute cannot be a "State"
within the meaning of Article 12 of the Constitution of
India. We are, therefore of the opinion that the learned
Single Judge committed no error in dismissing the
petition.
8 Accordingly, the appeal is dismissed. In view of
disposal of the main appeal, the civil application will not
survive and stands disposed of, accordingly.
(BIREN VAISHNAV,ACJ)
(HEMANT M. PRACHCHHAK,J)
BIMAL
