Deemed Universities are state / public authority, within the meaning of Article 12 of Constitution of India: Supreme Court

The Supreme Court while deciding the issue of maintainability of a Writ Petition against a Deemed University has held that a Deemed University being created / established for imparting education, which is an important public function, therefore it comes within the ambit of Article 12 of Constitution of India and hence amenable to Writ Jurisdiction of High Court / Supreme Court.

The case relates to a Faculty of a Deemed University, who was terminated after disciplinary proceedings. She successfully challenged the termination before the Single Judge in Madras High Court and her termination was set aside. The University then challenged the order of the Single Judge in Appeal. The Division Bench set aside the order and held that a Deemed University is neither a State nor an authority within the meaning of Article 12 of the Constitution of India and hence it cannot be subjected to writ jurisdiction of the High Court under Article 226 of the Constitution to examine the legality and correctness of the dismissal order.

Aggrieved by the said judgment, the Faculty challenged the Judgement in Supreme Court.

As significant legal issue was involved in the matter and the aggrieved faculty had no legal assistance, the Court requested Mr. Harish Salve, Senior counsel, to assist the Court to enable us to properly appreciate and decide the issues arising in the case.

Shri Salve submitted to the Court the test as to whether any person/body/organization/authority, would be subjected to writ jurisdiction of the High Court under Article 226 of the Constitution, can be done asking as whether the concerned body has been formed for discharging any “Public function” or “Public duty” and if so, whether it is actually engaged in any public function or/and performing any such duty.

He also submitted that in the light of several judgements “imparting education to students at large” is a “public function” and, therefore, if any body or authority, as the case may be, is found to have been engaged in the activity of imparting education to the students at large then irrespective of the status of any such authority, it should be made amenable to writ jurisdiction.

The Supreme Court agreed with submission of Shri Harish Salve and ruled that Respondent Deemed University can be subjected to the writ jurisdiction of the High Court under Article 226 of the Constitution, for following reasons:

[A] Firstly, Respondent Deemed University is engaged in imparting education in higher studies to students at large.

[B] Secondly, it is discharging “public function” by way of imparting education.

[C] Thirdly, it is notified as a “Deemed University” by the Central Government under Section 3 of the UGC Act.

[D] Fourthly, being a “Deemed University”, all the provisions of the UGC Act are made applicable to Respondent University, which inter alia provides for effective discharge of the public function – namely education for the benefit of public.

[E] Fifthly, once Respondent University is declared as “Deemed University” whose all functions and activities are governed by the UGC Act, alike other universities then it is an “authority” within the meaning of Article 12 of the Constitution.

The Court thus observed that once a Deemed University is held to be an “authority” as provided in Article 12 then as a necessary consequence, it becomes amenable to writ jurisdiction of High Court under Article 226 of the Constitution.

The Supreme Court thus set aside the Judgement of Division Bench of High Court and remanded the matter to the Division of the High Court to decide the respondent’s appeal on merits on the question as to whether the Single Judge was justified in allowing the writ petition on merits.

EduLegaL View

There is a legal distinction between “authority” under Article 12 and Article 226. A Statute does not create a Deemed University; rather it is created under a Statute. There is a well-marked distinction between a body, which is created by the statute and a body, which is given a legal status under a Statute.

A Deemed University, only because it has been brought into existence by virtue of notification u/s 3 of UGC Act, 1956 and UGC Act, 1956 and its functions are regulated by  UGC, it does not become “authority” for the purpose of Article 12. The test under “Article 12” is much higher than “Article 226”.

When a law provides that something shall be deemed to exist, the court is bound to ascertain the purpose for which the fiction was created and the parties between whom the fiction was to operate, so that full effect may be given to the intention of the legislature and the purpose may be carried to its logical conclusion. The legal fiction of “Deemed University” was created for the purpose of making the provisions of the UGC Act, 1956 to the Institution enabling it to conduct courses and impart degrees and nothing beyond that.

Public function and Public Duty test may be adequate for bringing a Deemed University within the ambit of Article 226 but that cannot be true for Article 12 as well.

Now that SUPREME COURT has settled an issue, the Argument can continue!

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