Rajbir Surajbhan Singh vs The Chairman, Institute of Banking Personnel Selection, Mumbai

Civil Appeal No. 4455 of 2019 (Arising out of SLP (C) No.18201 of 2015)

RAJBIR SURAJBHAN SINGH .... Appellant(s) Versus

THE CHAIRMAN, INSTITUTE OF BANKING PERSONNEL SELECTION, MUMBAI …. Respondent (s)

JUDGMENT

L. NAGESWARA RAO, J.

Leave granted.

1. On 12.08.2013 an advertisement was issued by the

Respondent inviting applications for appointment to posts

of clerical cadre (Clerk-III) in Public Sector Banks. The

Appellant participated in a Common Written Examination

(CWE) conducted on 01.10.2013 and secured 110 marks

out of 200. He was called for an interview by the

Respondent on 14.02.2014. During the interview, he Signature Not Verified Digitally signed by VISHAL ANAND Date: 2019.04.30 11:47:49 IST

submitted a caste certificate dated 28.10.2010, issued by Reason:

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the Naib Tehsildar, Nangal Chowdhary, Haryana which

shows that he belongs to Ahir community, which is

recognized as Other Backward Class (hereinafter referred

to as the ‘OBC’) as per the Resolutions of the Ministry of

Welfare, Government of India. Another caste certificate

was issued in the prescribed format to the Appellant by the

Naib Tehsildar, Nangal Chowdhary, Haryana on

29.01.2014, declaring him as an OBC candidate belonging

to Ahir community and that he does not belong to the

‘creamy layer’. The results were announced on

01.04.2014 and the Appellant was informed that his

candidature for the examination has been cancelled as he

could not produce the required certificate at the time of

the interview. As per the advertisement, the candidates

belonging to OBC category were required to produce a

certificate issued during the period 01.04.2013 and

31.03.2015. The Appellant could not produce the

certificate issued during the said period for which reason

he was disqualified from participating further in the

selection process.

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2. The Appellant filed a Writ Petition challenging the

proceeding dated 01.04.2014 by which he was disqualified

from the selection process, for appointment to the post of

Clerk, which was dismissed by the High Court as not

maintainable. Hence, this appeal.

3. The High Court relied upon a judgment in Writ Petition

(L) No.1042 of 2014 and others to dismiss the Writ Petition

filed by the Appellant. The judgment in Writ Petition (L)

No.1042 of 2014 pertains to a Common Written

Examination conducted by the Respondent for recruitment

to the posts of Probationary Officers/Management Trainees

in participating organizations i.e. Public Sector Banks. The

High Court was of the view that the Respondent was not a

State within the meaning of Article 12 of the Constitution

of India and there was no public function that was

discharged by the Respondent. On said grounds, the High

Court opined that the Respondent is not amenable to writ

jurisdiction of the High Court under Article 226 of the

Constitution of India.

4. Mr. Gagan Gupta, learned counsel appearing for the

Appellant submitted that in the year 1975, Personnel

3 Selection Service (PSS), a unit of National Institute of Bank

Management (NIBM), was constituted with the objective of

developing an efficient system for recruitment, promotion,

and placement services to Public Sector Banks. Said PSS

unit became an independent entity in the year 1994 and

came to be known as the Institute of Banking Personnel

Selection i.e. the Respondent herein. The Respondent was

registered under the Societies Registration Act, 1860 and

as a public trust under the Bombay Public Trusts Act, 1950.

The Respondent was recognized as a Scientific and

Industrial Research Organisation in April, 1984 by the

Department of Scientific and Industrial Research, Ministry

of Science and Technology, Government of India. The

Respondent is also an associate member of the Indian

Banks Association. Mr. Gupta submitted that the

Respondent would fall under the expression “other

authorities” under Article 12 of the Constitution of India as

there is deep and pervasive control of the Government

over the Respondent. He stated that the governing body

of the Respondent-Institute consists of the Executive

Director of the Reserve Bank of India; Joint Secretary to the

Department of Financial Services, Ministry of Finance,

4 Government of India; Chairman – State Bank of India; the

Chairman and Managing Directors of UCO Bank, Bank of

India, Central Bank of India, Dena Bank; Chair Professor IIT

Mumbai; CEO Indian Institute of Banking and Finance;

Chief Executive, Indian Banks Association, Director –

National Institute of Bank Management amongst others.

He referred to a letter dated 20.09.2010 filed in this Court

along with the rejoinder affidavit, written by the Under

Secretary to the Ministry of Finance, Government of India

to the Director of the Respondent-Institute conveying

approval of the Government to the proposal of the

Respondent for conducting a Common Recruitment

Programme for recruitment of both clerks and officers in

Public Sector Banks. He submitted that the document is

evidence of the fact of administrative control of the

Government of India over the Respondent-Institute.

Alternatively, Mr. Gupta advanced an argument that, in

any event, the Respondent-Institute discharges public

functions and duties and would be amenable to the writ

jurisdiction of the High Court. He argued that the

Respondent-Institute was set up to cater to the selections

made to Public

5 Sector Banks, apart from the selections made for

appointment of thousands of candidates to co-operative

banks, private banks, central and other financial

institutions, public and private enterprises, government

departments, Regional Rural Banks, universities,

institutions, Certificate and Scholarship Examinations, etc.

The Respondent-Institute also conducts training

programmes for Public Sector Organisations. In support of

his submissions, Mr. Gupta relied upon the judgments of

this Court in Ajay Hasia v. Khalid Mujib Sehravardi 1,

R.D. Shetty v. I.A.A.I.2, Pradeep Kumar Biswas v.

Indian Institute of Chemical Biology and Others. 3,

Zee Telefilms Ltd. v. Union of India 4, Janet Jeyapaul

v. SRM Universities and Others5, Andi Mukta

Sadguru S.M.V.S.S.J.M.S.T. and Ors. v. V.R. Rudani

and Ors.6 and K. K. Saksena v. International

Commission on Irrigation & Drainage7. The further

submission of the learned counsel for the Appellant is that

nationalized banks would fall within the expression “State” 1 1981 (1) SCC 722 2 1979 (3) SCC 489 3 2002 (5) SCC 111 4 2005 (4) SCC 649 5 2015 (16) SCC 530 6 1989 (2) SCC 691 7 2015 (4) SCC 670

6 under Article 12 of the Constitution of India and the

Respondent-Institute which conducts the selections for

appointment to Public Sector Banks should be amenable to

the writ jurisdiction of the High Court under Article 226 of

the Constitution of India. Referring to the facts of the

case, learned counsel for the Appellant submitted that he

produced the certificate issued in the year 2010

inadvertently. He submitted that non-production of the

certificate issued on 29.01.2014 was by mistake and he

should be given an opportunity to be considered for

appointment to the post of Clerk as he is fully eligible for

appointment on the basis of the marks obtained by him.

5. Mr. Adarsh B. Dial, learned Senior Counsel appearing

for the Respondent argued that the Respondent was only

an agency conducting the process of selections after being

engaged by various nationalized banks and other public

institutions/financial institutions. He stated that neither

was any aid received by the Respondent from the

Government nor was it administratively controlled by the

Government. Merely because there were a few members

in the governing body representing the Government and

7 the banks, it could not be said that the Government has

administrative control over the Respondent. According to

the learned Senior Counsel, conducting examinations for

appointment to various posts in banks and financial

institutions was not a public function. He asseverated

that there was no public duty discharged by the

Respondent and a Writ Petition under Article 226 of the

Constitution of India against the Respondent was not

maintainable. He further submitted that after the

selection process in which the Appellant participated was

completed in the year 2013, there were four selections

that were conducted subsequently. The Appellant did not

participate in any of those selections and he is not entitled

to any relief at this stage. He also relied upon the

following judgments; judgment dated 21.08.2014 of the

High Court of Manipur at Imphal, 13.11.2014 and

18.11.2014 of the Bombay High Court, 10.04.2015 of the

Punjab and Haryana High Court, 21.05.2015 and

31.08.2015 of the High Court of Jharkhand, and 31.03.2016

of the Delhi High Court, all by which various Writ Petitions

filed against the Respondent were dismissed as not

maintainable.

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6. The objective of the Respondent-Institute as per the

Memorandum of Association are:

(1) “To establish and to carry on the administration and management of “Institute of Banking Personnel Selection.” (2) To plan, promote and provide for competent, well-

qualified and efficient cadres of personnel at various levels to the banks and financial institutions in the country on a scientific basis.

(3) To render assistance in organizations in the areas of personnel such as recruitment, selection, placement, by designing, developing and printing suitable measurement test/tools, assessment of answer papers and processing results of examinations, and conduct such examination related services, on request.

(4) To carry out theoretical and applied research in the subjects of psychology and education.”

7. One of the functions to achieve said objects of the

Respondent-Institute is to:

“Undertake to conduct on behalf of banks or financial institutions or other organization a total or partial selection project for recruitment or promotion involving all stages like designing and release of advertisement, receipt and screening of applications, conduct of examination, processing of results etc.”

8. It is true that the Governor of the Reserve Bank of

India and the Chairmen of certain Public Sector Banks

along with the Joint Secretary, Banking Division, Ministry of

Finance are members of the governing body of the

Respondent-Institute. There is no dispute that the

Respondent is not constituted under a statute. It is also

9 not disputed that the Respondent does not receive any

funds from the Government. The Respondent is not

controlled by the Government. The letter dated

20.09.2010 produced by the Appellant along with the

rejoinder affidavit does not show deep and pervasive

control by the Government of India. The question of

whether the Council of Scientific and Industrial Research

fell under ‘other authorities’ within the meaning of Article

12 was referred to a 7 Judge Bench of this Court. [See:

Pradeep Kumar Biswas v. Indian Institute of

Chemical Biology and Others. (supra)]. Resolving the

dispute, the 7 Judge Bench in Pradeep Kumar Biswas

(supra) held that the question as to whether a

corporation/society would fall within the meaning of Article

12 should be decided after examining whether the body is

financially, functionally and administratively dominated by

or under the control of the Government. This Court

observed that such control should be particular to the body

in question and must be pervasive. A control which is

merely regulatory under the statute or otherwise would not

make the body ‘State’ under Article 12. As there is no

control by the Government over the Respondent in the

10 manner mentioned above, we have no doubt in our mind

that the Respondent cannot be said to be falling within the

expression ‘State’ under Article 12 of the Constitution of

India.

9. The question that remains to be answered is whether

the Writ Petition is maintainable against the Respondent on

the ground that it discharges public duty. This Court in

Andi Mukta Sadguru S. M. V. S. S. J. M.S.T. and Ors.

v. V.R. Rudani and Ors. (supra) held “The term

‘authority’ used in Article 226 of the Constitution of India,

must receive a liberal meaning unlike the term “other

authorities” in Article 12. Article 12 is relevant only for

the purpose of enforcement of fundamental rights under

Article 32. Article 226 confers power on the High Courts to

issue Writs for enforcement of fundamental rights as well

as non-fundamental rights. The words “any person or

authority” used in Article 226 are, 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

11 the duty imposed on the body. The duty must be judged in

the light of positive obligation owed by the person or the

authority to the affected party. No matter by what means

the duty is imposed, if a positive obligation exists,

mandamus cannot be denied.”

10. This Court in the said judgment also referred to what

Professor S.A. de Smith stated in ‘Judicial Review of

Administrative Action’, which is as follows:

“To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.”

11. In Regina v. Panel on Take-Overs and Mergers,

Ex parte Datafin PLC and Another8, Lloyd L. J.

speaking for the Court of Appeal held that if the duty is a

public duty, then the body in question is subject to

public law. The distinction must lie in the nature of the

duty imposed, whether expressly or by implication. He

referred to an earlier judgment in Reg. v. Criminal

Injuries Compensation Board, Ex. Parte Lain9 where

Diplock L.J. held that in addition to looking at the source

of power for the purpose of deciding the question 8 [1987] 1 Q.B. 815 (C.A.) 9 [1967] 2 Q.B. 864, D.C.

12 pertaining to public law, nature of power is an important

facet to decide whether a dispute pertains to public law

or private law.

12. There is no manner of doubt that a Writ Petition under

Article 226 is maintainable even against a private body

provided it discharges public functions. While deciding the

question as to whether ICRISAT is amenable to the writ

jurisdiction under Article 226, this Court held that it is not

easy to define what a public function or public duty is. It

can reasonably be said that such functions as are similar to

or closely related to those performable by the State in its

sovereign capacity, are public functions. The primary

activity of ICRISAT is to conduct research and training

programmes in the sphere of agriculture, purely on a

voluntary basis which according to this Court, is not a

public duty10. A private company carrying on banking

business as a scheduled commercial bank cannot be

termed as an institution or a company carrying on any

statutory or public duty11.

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G. Bassi Reddy v. International Corps Research Institute (2003) 4 SCC 225 11 Federal Bank v. Sagar Thomas (2003) 10 SCC 733 13

13. In K.K. Saksena (supra), this Court observed that

the Respondent therein would not be amenable to Writ

jurisdiction under Article 226 of the Constitution of India,

as the activities were voluntarily undertaken by the

Respondents and there was no obligation to discharge

certain activities which were statutory or of public

character. Reference was made to the Federal Bank

case wherein it was held that the Writ Petition was not

maintainable under Article 226 of the Constitution of India

in spite of the regulatory regime of the Banking Regulation

Act and the other statutes being in operation. The relevant

questions, according to this Court in K. K. Saksena

(supra), to be answered for the purpose of deciding

whether a Writ Petition is maintainable under Article 226

are:

a) Whether a private body which is a non-

governmental organization partakes the nature of public duty or State action?

b) Whether there is any public element in the discharge of its functions?

c) Whether there is any positive obligation of a public nature in the discharge of its functions?

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d) Whether the activities undertaken by the body are voluntary, which many a non-governmental organization perform?

14. The Respondent-Institute has been set up for the

purpose of conducting recruitment for appointment to

various posts in Public Sector Banks and other financial

institutions. Applying the tests mentioned above, we are

of the opinion that the High Court is right in holding that

the Writ Petition is not maintainable against the

Respondent. Conducting recruitment tests for

appointment in banking and other financial institutions, is

not a public duty. The Respondent is not a creature of a

statute and there are no statutory duties or obligations

imposed on the Respondent.

15. This Court in Federal Bank case held that a Writ

Petition under Article 226 of the Constitution is not

maintainable against a scheduled bank on the ground that

the business of banking does not fall within the expression

“public duty”. As the activity of the Respondent of

conducting the selection process for appointment to the

banks is voluntary in nature, it cannot be said that there is

15 any public function discharged by the Respondent. There

is no positive obligation, either statutory or otherwise on

the Respondent to conduct the recruitment tests. For the

reasons above, we are of the considered opinion that the

Respondent is not amenable to the Writ Jurisdiction under

Article 32 or Article 226 of the Constitution of India.

16. We are informed by the learned Senior Counsel for

the Respondent that there were four recruitments that

were conducted after the year 2013 but that the Appellant

did not participate in any of these recruitments. As he did

not participate in any of said subsequent recruitments, the

Appellant is not entitled to any relief.

17. For the aforementioned reasons, the appeal is

dismissed.

..…................................J. [L. NAGESWARA RAO]

..…................................J. [M.R. SHAH] New Delhi, April 29, 2019.

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