ORDER
1. The intellectual clash between a research fellow and his guide lead to the filing of the writ petition.
2. The petitioner is seeking writ of mandamus declaring the action of the respondents in not permitting him to conduct research at the Centre for Cellular and Molecular Biology (for short C.C.M.B.) with 'Lipid Protein Interaction: In Gramicidin Cholestoral Lipid Vescicles and Serotonin 1A containing Lipo-somes' as illegal and arbitrary.
3. The facts in nut-shell are:
The petitioner is a Post Graduate in Science with Bio-Physics, a product of All India Institute of Medical Sciences, New Delhi. He was successful candidate in All India Competitive Examinations conducted by the University Grants Commission (for short U.G.C.) for grant of Junior Research Fellowship. Accordingly, U.G.C. registered the petitioner as Junior Research Fellow in June, 1992. The petitioner is required to take-up research with any of the Laboratories recognised by the U.G.C. The C.C.M.B., the 1st respondent herein is one such recognised institute for the purpose of research. A written test and viva-voce was conducted by the 1st respondent for selection of the candidates for conducting research. As per the research scheme of U.G.C., it should be completed within a period of five years and the successful candidates will be awardedPh.D. degree for research by the Jawaharlal-Nehru University. The petitioner after having been selected by the 1st respondent, underwent six months orientation programme. The 1st respondent has notified Dr. Amit Chattopadhyay, the 2nd respondent herein as a guide to assist the petitioner for conducting research work. The petitioner was allotted topic 'Lipid Protein Interaction : In Gramicidin Cholesterol Lipid Vescicles and Serotonin 1A containing Liposomes'. Accordingly, the petitioner commenced the research work with .the 2nd respondent guide. In the process of research, certain initial inferences are to be arrived at. It appears that some differences arose between the petitioner and the 2nd/ respondent with regard to initial inferences while according to the petitioner his experiments showed dramatically opposite inferences. But, however, the guide insisted that he should proceed with the research, which was not relished by the petitioner. The relations appears to have been strained between the petitioner and the 2nd respondent and therefore the petitioner addressed a letter on 25-5-1995 bringing to the notice of the 1st respondent the events that took place and requested the 1st respondent to change the guide. In the meanwhile, the petitioner was also promoted to the 'Senior Research Fellowship Cadre. The petitioner again followed his request by another letter dated 12-10-1995. He also informed the 1st respondent that one Dr. V. Thankamani, Reader and Head, Department of Biotechnotogy, University of Kerala has agreed to be the guide of the petitioner and that he would like to continue the research with the said Dr. V. Thankamani. The U.G.C. also expressed no objection. It is also the case of the petitioner that the 1st respondent has no objection to continue the research provided the petitioner changed his topic, but the petitioner was not agreeable for such an arrangement. Neither the petitioner was allowed to change the topic nor the guide was changed. However, by letter dated 14-10-1995, the 1st respondent informed that the petitioner would loose the registration with Jawaharlal Nehru University, if he proceeds with the research with Kerala University, which was again protestedby the petitioner. By another communication dated 30-11-1995 the petitioner was informed that he could undertake research work any-where else other than C.C.M.B. The grievance of the 'petitioner is that he was not being allowed to work in laboratory even though he made request. But, on the other hand, the 2nd respondent who was also guiding another candidate by name Mr. S.S. Rawat were attempting to publish the inferences drawn by the petitioner in International Seminar at Amsterdam and that the petitioner states that this is nothing but plagerism as the inferences drawn by the petitioner were taken aid of and they published paper with cosmetic changes. The 1st respondent having allotted the topic could not have allowed Mrs. S.S. Rawat and the 2nd respondent to publish a paper having bearing the subject allotted to the petitioner. If the 2nd respondent and Mr. S.S. Rawat were allowed to go ahead with the publication, it would cause injury to the career of the petitioner. Therefore, the petitioner submits that necessary directions be issued to the 1st.respondent to permit the petitioner to continue the research work.
4. Counter affidavit was filed on behalf of the 1st and 2nd respondent. At the outset an objection was taken that the writ petition is not maintainable against the 1st respondent, which is a unit of Council of Scientific and Industrial Research. The said council was registered as a society under the Societies Registration Act and it is an autonomous institution. Therefore, it is neither a State nor an instrumentality of State within the meaning of Art. 12 of the Constitution of India and therefore the writ petition is liable to be dismissed at the threshold. Even on the merits also it was submitted by the respondents that as per usual practice, C.C.M.B. advertises and selects research feltows on All India basis. The selected candidates are given stipend. The Research Feltows are assigned Research Guide from among the Scientists of C.C.M.B. and the topics are offered by the guide. It is stated that the petitioner was awarded Junior Research Fellowship, but was not only enthusiastic but argumentative and he could not pull on well with the guide. In spite of several advices by the respondent organisa-tion to take scientific arguments in the right side, the petitioner rushed into the conclusions and accusations with the guide. When the petitioner requested for change of another Supervisor he was asked to move to another Research Supervisor to work on different related topic, but the petitioner refused to do so. As per the convention, it would be inappropriate to allot the petitioner to another guide with the same subject. Therefore, the petitioner requested for No Objection Certificate to leave the institution which was readily granted by the 1st respondent. The petitioner stopped coming to the organisation from 3-8-1995. He was also granted No Objection Certificate on 3-8-1995 to get his Research Fellowship to transfer to some other institution.
5. It is the case of the respondents that the petitioner was allotted the topic 'Lipid Protein Interactions' and not what is stated by him namely 'purification, Characterisa-'tion and Lipid Protein Interaction of Sero-tonin 1A Receptor'. The petitioner was advised on number of occasions to take scientific arguments in the right stride and not to rush to the conclusions and accusations. The 1st respondent tried to accommodate the petitioner on some other topic with another guide, but it was refused and on the other hand, No Objection Certificate was demanded. The respondents also deny that the conclusions inferences arrived at by the petitioner are correct. When the petitioner had obtained No Objection from Dr. V. Thankamani new guide he has to conduct research in Kerala University and that he could not do any research work in C.C.M.B. The topic was allotted by the 2nd respondent on the idea conceived by him and it would be inappropriate to take that idea elsewhere or for that matter to another guide. Therefore, the request of the petitioner to change the guide with the same topic was not acceeded to. With regard to the publication of the inferences drawn by him, the 2nd respondent and another student Mr. S.S. Rawat, it is stated that the publication was in no way connected with the work done by the petitioner. The experiments conducted by the petitioner were in the custody of the petitionerhimself and were not made available to the respondents. The paper prepared by the 1st respondent and the student Mr. S.S. Rawat were selected by the International Union for Pure and Applied Biophysics (for short IUPAB), Amsterdam, and finally it was exhibited at Amsterdam on 12-8-1996.
6. Additional Counter affidavits were also filed on the averments made by the petitioner with regard to the plgerism. It is stated that the petitioner with regard to the plagersim. It is stated that on 12-8-1996 this Court passed an order restraining the Respondents from publishing the paper at Amsterdam and the same was also informed by the learned counsel for the petitioner and in spite of that, the paper was published. It-is the case of the respondents that there was no message from their counsel with regard to the orders passed by this Court and the entire proceedings were completed at Amsterdam on 12-8-1996 and the poster 'presentation consisted of displaying the scientific information and data on a poster board.
7. As seen from the correspondence on the alleged plagerism, the paper submitted by Sri S.S. Rawat, with the assistance of 2nd respondent were accepted for poster presentation. When the protest was recorded by the petitioner with the President, I.U.P.A.B. the same was enquired into and it was referred to the independent scientist Dr. Vijayan, who opined that there was no plagerism and it was only after confirmation by the independent Scientists, the paper was published at Amsterdam. However, the grievance of the petitioner is that even though it was brought to the notice of the respondents and which was Faxed on 12-8-1996 itself about the orders of the High Court restraining the authorities from publishing the paper, yet it was published and those act of the respondents amounts to Contempt of the orders of the Court. The learned counsel for petitioner patiently took me to the minutous details of the correspondence exchanged between the I.U.P.A.B., C.C.M.B. and the petitioner to sustain the allegations of plagerism. I am not inclined to go into this aspect, in as much as the subject-matter in the writ petition is quitedifferent and the alleged plagersim done by the 2nd respondent and another candidate Mr. S.S. Rawat it is a question to be agitated by the petitioner in a different proceedings more especially the paper was also presented at Amsterdam on 12-8-1996.
8. The only issue that falls for consideration in the writ petition is whether the action of the respondent refusing to permit the petitioner to conduct research is arbitrary and unreasonable? But, however, the more crucial question which has to be cleared by this Court is as to whether the writ petition is maintinable against the 1st respondent organisation?
9. The learned counsel for the respondent vehemently submits that the writ petition is not maintainable against the respondents as the Apex Court considered this issue directly with reference to the C.S.I.R. and held that it is not a State or instrumentality of a State and therefore he submits that the writ petition has to be dismissed as not maintianable.
10. The learned counsel for the petitioner submits that the C.C.M.B. is a branch of Council of Scientific and Industrial Research (for short C.S.I.R.) The said Council is a Society registered under the Societies Registration Act and it is controlled and funded by the Government. Activities of the Councils are supervised by the Government and therefore the Government has pervasive control over the administration of the Council and hence he submits that even though it is a society registered under the Societies Registration Act, yet it is a State falling under Art. 12 of the Constitution of India and hence the writ petition is maintainable.
11. The learned counsel also submits that the 1st respondent is engaged in the activities anatogous to education and research. The students are being guided by the Scientists and hence the 1st respondent is undertaking the educational activity which is a sovereign function. Therefore, relyinlg on the judgment of the Supreme Court reported in Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 217S he submits that the institution falls in the category of State withinthe meaning of Act. 12 of the Constitution of India and hence on this ground also this writ petition is maintainable.
12. The learned counsel for the respondent Sri Desai, stranuously urges that the issue as to whether the C.S.I.R. is an authority within the meaning of Art. 12 of the Constitution of India was considered by the Supreme Court with reference to the functions performed by it and held that it is a State in Sabhajit Tewari v. Union of India, : (1975)ILLJ374SC . Therefore, he submits that the decision of the Supreme Court binding. The said decision has not been over-ruled by any larger Benches subsequent to the decision and hence the writ petition is liable to be dismissed.
13. It is not in dispute that the C.S.I.R. is a Society registered under the Societies Registration Act. It has now been settled by the Supreme Court in catena of decisions that merely because the organisation is registered under the Societies Registration Act, it cannot be said that the organisation is not a State falling under Art. 12 of the Constitution of India. The functions performed by the organisation and the powers possessed by the organisation, the control of the Government, the ftow of finances to such other organisation are some of the relevant crieteria which are required to be considered while rendering a decision as to whether a petitioner organisation is a State or instrumentality of a State within the meaning of Art. 12 of the Constitution of India. The C.C.M.B. is a off shoot of C.S.I.R. If the C.S.I.R. is held to be a State within the meaning of Art. 12 of the Constitution of India, then naturally the C.C.M.B. also falls within the same definition.
14. The crucial question is whether C.S.I.R. is a State amenable to writ jurisdiction under Art. 226 of the Constitution of India, The Supreme Court in Sabhajit Tewari's case : (1975)ILLJ374SC (2nd cited supra), after extracting the factual functions of the Council and its constitution held that the C.S.I.R. is not an authority within the meaning of Art. 12 of the Constitution of India. Paras3 and 4 which are relevant for the purpose of this case are extracted betow:
'3. The Council is a society registered under the Socities Registration Act. Reliance was placed by counsel for the petitioner on these features of the society. Under Rule 3, the Prime Minister of India is the ex-officio President of the Society. The Governing Body under Rule 30 consists of inter alia some persons a appointed by the Government of India representing the administrative Ministry under which the Council of Scientific and Industrial Research is included, and the Ministry of Finance and one of more members appointed by the Government of India. The Government of India may terminate the membership of any member or at any the same time of all members other than the ex-officio members of the Governing Body Rule 45 states that the Governing Body shall have the management of all the affairs and funds of the Society. Rule 46 states that the Governing Body shall have power, with the sanction of the Government of India to frame, amend, or repeal bye-laws not inconsistent with the rules for the administration and management of the affairs of the Society and in particular to provide for the terms and tenaure of appointments, emolouments, allowances, rules of discipline and other conditions of service of the officers and staff of the Society. Reference was also made to the Government of India (Allocation of Business) Rules, 1961 and in particular to page 76 where it is stated that all matters relating to the Council of Scientific and Industrial Research are under the department of Science and Technology.
4. Extracting the features as aforesaid, it was contended that these would indicate that the Council of Scientific and Industrial Research was really an agency of the Government. This contention is unsound, The Society does not have a statutory character like the Oil and Natural Gas Commission, or the Life Insurance Corporation or Industrial Finance Corporation. It is a society incorporated in accordance with the provisions of the Societies Registration Act. The fact that the Prime Minister is the President or that the Government appoints nominees to the Governing Body or that the Government may terminate the membership will notestablish anything more than the fact that the Government takes special care that the promotion, guidance and co-operation of scientific and industrial research, the institution and financing of specific researches, establishment or development and assistance to special institutions or departments of the existing institutions for scientific study of problem affecting particular industry in a trade, the utilisation of the result of the researches conducted under the auspices of the Council towards the development of industries in the country arc carried out in a responsible manner.'
This issue was also considered by the Supreme Court again in Ramana Dayaram Shetty v. The International Airport Authority of India, : (1979)IILLJ217SC and it was held that the International Airport Authority is an instrumentality of the State. The Court has carved out certain characteristics of the Corporation acting as Instrumentality or Agency of the Government, and it observed as follows:
'A Corporation may be created in one of two ways. It may be either established by statute or incorporated under a law such as the Companies Act, 1956 or the Societies Registration Act, 1860. Where a Corporation is wholly controlled by Government not only in its policy making but also in carrying out the functions entrusted to it by the law establishing it or by the Character of its incorporation, there can be no doubt that it would be an instrumentality or agency of Government. But ordinarily where a Corporation is established by statute, it is autno-mous in its working, subject only to a provision, often times made, that it shall be bound by any directions that may be issue from time to time by Government in respect of policy matters. So also a corporation incorporated under law is managed by a board of directors or committee of management in accordance with the provisions of the statute under which it is incorporated. When does such a corporation become an instrumentality or agency of Government? Is the holding of the entire share capital of the Corporation by Government enough or is it necessary that in additionthere should be a certain amount of direct control exercised by Government and, if so,, what should be the nature of such control? Should the function which the corporation is charged to carry out possess any particular characteristic or feature, or is the nature of the functions immaterial? Now, one thing is clear that if the entire share capital of the corpo-ration is held by Government, it would go a tong way towards indicating that the corporation is an instrumentality or agency of Government. But, as is quite often the case a corporation established by statute may have no shares or sharesholders, in which case it would be a relevant factor to consider whether the administration is in the hands of a board of directors appointed by Government, they may be completely free froni governmental control in the discharge of their functions. What then are the tests to determine whether a corporation established by statute or incorporated under law is an instrumentality or agency of Government. It is not possible to formulate an inclusive or exhaustive test which would adequately answer this question. There is no cut and dried formula, which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not.' The Court then proceeded to indicate the different tests, apart from ownership of the entire share capital.
In Ajay Hasia v. Khalid Mujib, : (1981)ILLJ103SC the Supreme Court after considering the tests laid down in earlier cases summarised in para 9 which is extracted betow:
'The tests for determining as to when a corporation can be said to be an instrumentality or agency of Government may now be culled out from the judgment in the International Airport Authority's case, : (1979)IILLJ217SC . These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression 'other authorities', it must be realised that it should not be stretched so far as to bring in every autonomous body whichhas some nexus with the Government with the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the International Airport Authority's case as follows:.,
(1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a tong way towards indicating that the corporation is an instrumentality or agency of Government.
(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the Corporation, it would afford some indication of the corporation being impregnated with governmental character.
(3) It may also be a relevant factor .....whether the corporation enjoys monopoly status which is the State conferred or State protected.
(4) Existence of 'deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.
(5) If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.
(6) Specifically, if a department of Govt. is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of Government.
If on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of government, it would, as pointed out in the International Airport Authority's case, be an 'authority' and, therefore, 'State' within the meaning of the expression in Art. 12.
The Supreme Court further pointed out in para 11 which is extracted below:
'We may point out that it is immaterial forthis purpose whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as a how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The corporation may be a statutory corporation created by a statute or it may be a Government company or a company formed under the Companies Act, 1956 or it may be a society registered under the Societies Registration Act, 1860 or any other similar statute. Whatever be its gene-tical origin, it would be an 'authority' within the meaning of Art. 12 if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression 'authority' in Art. 12.
A reference was also made to Sabhajit Tewari's case in Para 13 of the judgment on a contention raised that the C.S.I.R. was registered under the Societies Registration Act and this Court found that it is not an Authority under Art. 12 of the Constitution of India and therefore the same principles would also apply in the case of International Airports Authority case. But, however, the Supreme Court repelled the said contention in para 13 of the judgment, which is extracted below:
'The learned counsel appearing on behalf of the respondents Nos. 6 to 8, however, relied strongly on the decision in Sabhajit Tewary v. Union of India, : (1975)ILLJ374SC and contended that this decision laid down in no uncertain terms that a society registered under the Societies Registration Act, 1860 can never be regarded as an 'authority' within the meaning of Art. 12. This being a decision given by a Bench of fivejudges of this Court is undoubtedly binding upon us but we do not think it lays down any such proposition as is contended on behalf of the respondents. The question which arose in this case was as to whether the Council of Scientific and Industrial Research which was jurisdically a society registered under the Societies Registration Act, 1860 was an 'authority' within the meaning of Art. 12. The test which the Court applied for determining this question was the same as the one laid down in the International Airport Authority's case and approved by us, namely whether the Council was an instrumentality or agency of the Government. The Court implicitly assented to the proposition that if the Council were an agency of the Government, it would undoubtedly be an 'authority'. But, having regard to the various features enumerated in the judgment, the Court held that the Council was not an agency of the Government and hence could not be regarded as an 'authority'. The Court did not rest its conclusion on the ground that the Council was a society registered under the Societies Registration Act, 1860, but proceeded to consider various other features of the Council for arriving at the conclusion that it was not an agency of the Government and therefore not an 'authority'. This would have been totally unnecesssary if the view of the Court were that a society registered under the Societies Registration Act can never be an 'authority' within the meaning of Art. 12.'
15. Again the similar issue came up for consideration before the Supreme Court in P.K. Ramachandra lyer v. Union of India, : (1984)ILLJ314SC wherein the Supreme Court held that the Indian Council of Agricultural Research and its affiliated Indian Veterinary Research Institute would be comprahended in the expression 'other authority' in Art. 12 of the Constitution of India and consequently held that the writ petition is maintainable against I.C.A.R. and its constituent institutes. The Supreme Court after considering its genealogy and considering the criteria devised by the judicial dicta held and that the very birth and its continued existence over a half century and its present position would leave no one to doubt that I.C.A.R. is aninstrumentality of the State. The Supreme Court further held in para 11 as follows:
'ICAR started as a Department of the Government of India having an office in the Secretariat even though it was a Society registered under the Societies Registration Act. It was wholly financed by the Government of India. Its budget was voted upon as part of the expenses incurred in the Ministry of Agriculture. Even when its status underwent a change, it was declared as an attached office of the Government of India. The control of the Government of India permeates through all its activities and it is the body to which the Government of India transferred Research Institutes set up by it. In order to make it financially viable, a cess was levied meaning thereby that the taxation power of the State was invoked, and the proceeds of the tax were to be handed over to ICAR for its use. At no stage, the control of the Government of India ever flinched and and since its inception it was set up to carry out the recommendations of the Royal Commission on Agriculture. In our opinion, this by itself is sufficient to make it an instrumentality of the State.'
16. Again the decision rendered in Sabhajit Tewari's case : (1975)ILLJ374SC (2nd cited supra) was sought to be taken assistance or to hold that the Society is not amenable to writ jurisdiction and the Supreme Court observed as follows:
'This Court accordingly concluded that CSIR is not an instrumentality of the Government comprehended in the expression 'other authority' within the meaning of Art. 12 of the Constitution, and the writ jurisdiction cannot be invoked against it. Much water has flown down the Jamuna since the dicta in Sabhajit Tewary's case and conceding that it is not specifically overruled in later decision, its ratio is consisderably watered down so as to be a decision confined to its own facts. The case is wholly distinguishable on the facts apart from the later indicia formulated by the Court for ascertaining whether a body is 'other authority' within the meaning of Art. 12. A mere comparison of the history of ICAR asextensively set out hereinbefore and the selling up of CSIR would clearly show that ICAR came into existence as a department of the Government, continued to be an attached office of the Government even though it was registered as a society and wholly financed by the Government and the taxing power of the State was invoked to make it financially viable and to which independent research institutes set up b the Government were transferred. None of these features was present in the case of CSIR, and therefore, the decision in Sabhajit Tewary's case would render no assistance and would be clearly distinguishable.'
The Supreme Court further held that having regard to various features enumerated in judgment of Sabhajit Tewary's case : (1975)ILLJ374SC (2nd cited supra), the conclusions were reached that the C.S.I.R. was not an Agency of the Government and court did not restrict its conclusions on the sole ground that the C.S.I.R. was a society registered under the Socities Registration Act and on the contrary various functions of the Council lead to the conclusion that it was not an Agency of the Government and therefore it was not an authority even though it was registered under the Societies Registration Act. For that reason it would not be comprehended in the expression other authority.
17. The learned counsel for the petitioner also relied on the decision of the single Judge of this Court in N. Sivarama Chandrasekhara Rao v. State of A.P., : AIR1996AP394 , wherein it was held that the educational institutions receiving the aid from the Government is amenable for writ jurisdiction of this Court. The learned counsel further relied on the judgment rendered by the Division Bench of this Court in Rakesh Gupta v. Hyderabad Stock Exchange Ltd., : AIR1996AP413 . The Division Bench held that the Stock Exchange falls within the definition of Authority and therefore the writ petition is maintainable. The Division Bench after referring to various dietas of the Supreme Court connected texts and also the Englishdecisions summarised the powers of the High Court to issue prerogative writs like mandamus summarised in the following manner:
'(1) The High Court's power under Art. 226 of the Constitution is as wide as the amplitude of the language used indicates and so can affect any person even a private individual and be available for any other purpose, even one for which another remedy may exists:
(2) Strictly speaking, the inhibitions recognised by the Courts in England upon the powers of the Courts to issue prerogative writs do not operate in India excepts as self-imposed restrictions by the Courts themselves;
(3) Wise and clear restrains on the use of extraordinary remedy have been indicated in various pronouncements of the Supreme Court and High Courts, and the High Courts will not go beyond those wholesome inhibitions. However, where the situations warrant or exceptional circumstances cry for timely judicial interdict or mandate, the Court shall have the power to issue any writ, order or direction. In the words of the Supreme Court -- 'the mentor of law is justice and apotent drug should, be judiciously administered. Speaking in critical retrospect and protentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to humanrights.'
(4) Mandamus, certiorari and prohibition are recognised as public law remedies. They are not available to enforce private law rights;
(5) The word 'authority' in Art. 226 of the Constitution of India is not restricted to the same meaning as the words 'other authorities' should receive in the definition of the State' in Art. 12 of the Constitution of India. The former must receive a liberal meaning. The letter is relevant only for the purpose of enforcement of fundamental rights. The High Court's power under Art. 226 of the Constitution, however, unlike the power of the Supreme Court under Art. 32 of the Constitution is more pervasive in the sense that it can issue writs for enforcement of fundamentalrights as well as non-fundamental rights. The . words 'any person or authority' used in Art. 226 arc, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on that body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party, ho matter by what means the duty is imposed, and
(6) The judicial control over 'the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartments. It should remain flexible to meet the requirements of various circumstances.'
18. The Division Bench after considering the Constitution of the Stock Exchange and the scheme of the Securities Contracts (Regulation), Act, 1956 and the incorporation of the Rules of the association of the Exchange which were framed with the approval of SEBI, it was held that, the public duty is imposed on the Exchange to act fairly and reasonably and within the Rules/Byelaws framed by it. If the Exchange transgresses limits fixed under the Rules and the Byelaws or in performance of the same it violated fundamental rights of the citizens, a writ petition can be maintained under Art. 226 of the Constitution of India.
19. But, however, the most important and crucial question is whether the writ can be maintained against C.S.I.R.?
20. Even in the judgment of the Division Bench, a reference was not made to Sabhajit Tewary's case : (1975)ILLJ374SC (2nd cited supra), wherein it was held that C.S.I.R. did not fall under the definition of authority, quite presumably on the premises that finding of the Supreme Court on that particular issue became final and it is binding under Art. 141 of the Constitution of India. It cannot also be disputed that in various subsequent cases after Sabhajit Tewary's case : (1975)ILLJ374SC (2nd cited supra), the Supreme Courtdid not disturb the finding with regard to C.S.I.R. It was explained in subsequent cases saying that the derision was confined to the facts in that particular case. Even though at. one point it was observed by the Supreme Court that much water had flown after Sabhajit Tewary's case (2nd cited supra), yet, the decision of the Supreme Court in that case was kept intact finding that on the facts of that case C.S.T.R. was not an authority amenable to writ jurisdiction.
21. Admittedly, in the instant case, the C.C.M.B. is an affiliated institution of C.S.I.R. When once the Supreme Court held that the C.S.I.R. is not an authority falling under Art. 12 of the Constitution of India, it is naive to hold that the affiliate organisation of C.S.I.R. would fall within the definition of authority. Under Art. 141 of the Constitution of India, the law laid down by the Supreme Court is binding on all the courts in India. Until and unless varied or modified by a Larger Bench, it continues to have a binding effect. Therefore, we are bound by the decision of the Supreme Court to the effect that the C.S.I.R. is neither State nor instrumentality of State and that the writ petition is net maintainable. It is true that in subsequent cases various guidelines were evolved and society registered under the Societies Registration Act was held to be a Slate or instrumentality of a State falling under Art. 12 of the Construction of India. Even the private organisations discharge public duty were also brought within the fold of writ jurisdiction of the High Courts. But, so tong as the dicta laid down by the Supreme Court in respect of C.S.I.R. is not disturbed, it would not be open for this Court to take a different view. Under these circumstances, I have to necessarily hold that the writ petition. is not maintainable against the 1st respondent organisation.
22. However, the learned counsel for the petitioner made a strenuous effort to contend that the 1st respondent is an educational institution and importing education is a public duty and sovereign function of the State and therefore the writ petition is, maintainable against the 1st respondent. Healso submit that the right to education is a fundamental right and the petitioner cannot be denied his right to acquire higher education. The learned counsel submits that the petitioner is a Research Feltow prosecuting the research studies and the 1st respondent is an institution imparting education to the petitioner and therefore the writ lies against the 1st respondent as held by the Supreme Court in Unni Krishnan's case : [1993]1SCR594 (1st cited supra). The learned counsel for the 1st respondent relies on the very same judgment to say right to education up to the age of 14 years of age was held to be a fundamental right, but, however after 14 years of age, the right gets circumscribed by the economic capacity and devetopment of the Slate. In the instant case, the petitioner is a research fellow pursuing higher studies, the principles laid by the Apex Court are not applicable to this case. In Unni Krishnan's case : [1993]1SCR594 (1st cited supra) in paras 148 and 149 this issue was dealt with by the Supreme Court and held that right to life enshrined under Art. 21 of the Constitution embraces in itself the right to education and thus it is a fundamental right up to the age of 14 years. Paras 148 and 149 are extracted below:
'148. The right to education further means that a citizen has a right to call upon the State to provide educational facilities to him within the limits of its economic capacity and development. By saying so, we are not transferring Art. 41 from Part IV to Part III we are merely relying upon Art. 41 to illustrate the content of the right to education flowing from Art. 21. We cannot believe that any State would say that it need not provide education to its people even within the limits of its economic capacity and development. It goes without saying that the limits of economic capacity are, ordinarily speaking, matters within the subjective satisfaction of the State.
149. In the light of the above enunciation, the apprehension expressed by the counsel for the petitioners that by reading the right to education into Art. 21, this Court would be enabling each and every citizen of this countryto approach the courts to compel the State to provide him such education as he chooses must be held to be unfounded. The right to free education is available only to children until they complete the age of 14 years. Thereafter, the obligation of the State to provide education is subject to the limits of its economic capacity and development. Indeed we are not stating anything new. This aspect has already been emphasised by this Court in Francis C. Mullin v. Administrator, Union Territory of Delhi : 1981CriLJ306 , While elaborating the scope of the right guaranteed under Art. 21 this court stated:
'But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes right to live with human dignity and all that goes along with it viz., the bare necessities of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about the mixing and comingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must in any view ot the matter include a right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self.' But, however, in the instant case, the question is whether C.C.M.B. is an educational institution and whether the petitioner is a student pursuing the education. In Unni Krishnan's case (AIR 1993 SC 217S) (1st cited supra), Hon'ble Mohan, J. while agreeing with the conclusions of Hon'ble B.P. Jeevan Reddy, J., answered three questions namely (1) whether the Constitution of India guarantees a fundamental right to education to its citizens, (2) whether there is fundamental right to establish educational institution under Art. 19(1)(g), (3), Thus recognition or affiliation make the educational institution as instrumentality. We are concerned with the question No. 3. The learned Judge held at para S3 as foltows:
'The emphasis in this case is as to the nature of duty imposed on the body. It requires to be observed that the meaning of authority under Art. 226 came to be laid down distinguishing the same term from Art. 12. In spite of it, if the emphasis is on the nature of duty on the same principle it has to be held that these educational institutions discharge public duties. Irrespective of the educational institutions receiving aid it should be held that it is a public duty. The absence of aid does not detract from the nature of duty.' In the instant case, admittedly the issue relates to prosecution of higher studies. The question is whether the 1st respondent organisation is imparting education. The petitioner being a Senior Research Fellow, undertaking research on certain subjects in science. To enable him to proceed with the research work the research facilities have been provided by the 1st respondent organisation which is one. of the recognised institution by the U.G.C. Whether it is an educational institution and whether it is a imparting education need not be gone into in this case, in as much as the petitioner does not have any fundamental rights for higher education. It is very much doubtful whether the 1st respondent institution is imparting education to the petitioner. Since the Supreme Court itself categorically held that there is no fundamental right to education for a professional degree, that flows from Art. 21, I have to necessarily hold that no fundamental right flows from Art. 21 of the Constitution of India enabling the petitioner to conduct research. In view of this I need not endeavour further as to whether the action of the respondents in not permitting the petitioner to conduct the research is arbitrary or otherwise.
23. For the reasons stated above, the writpetition fails. Accordingly, the writ petition isdismissed. No costs.
24. However, this is not the end of the matter by itself. Valient effort of the petitioner enured negative result to the petitioner and the writ petition was dismissed at thethreshold. In a bid to resolve the tangle in the interest of justice, the conscience of this Court impels to make certain observations. The scenerio that is placed before this Court is not quite satisfactory. The petitioner who is a research fellow has been insisting that he would do the research only on 'Lipid Protein Interaction; in Gramicidin Cholesterol Lipid Vescicles and Serotonin 1A Containing Lipo-somes' and that the Guide should be changed in view of difference of opinion among the petitioner and the Guide on certain inferences. The 1 st respondent though agreeable to change the Guide appears to have struck to its conventional obligations that it would be permissible to change the Guide. But the subject which was allotted by the earlier Guide cannot be allowed to be pursued by the another Guide. Though the petitioner had asked for change of the Guide and obtained the concurrence of another Professor in Kerala University, yet this court feels that the petitioner did so for various reasons. At the same time it has to be appreciated that young Senior Research Fellow should not be allowed to waste his precious time by immersing himself in an ocean of conflicts but should be sema-phored to proper destination. It is quite plausible that young minds do have unstable convictions like a creeper without assistance. But, at the same time, the organisation is obligated to make every honest attempt to steer and channelise the resources of the young scientist to get maximum research out-put for the benefit to the nation. Therefore, this Court, keeping the future of the student and also the image of the institution which attained national importance, hopes that the 1st respondent gives a rethinking on the issue uninhibited by the impressions gained on account of certain strained relations between the petitioner and his Guide.
25. Petition dismissed.