On the first contention, the

counsel from the appellant side

drew attention of the court to a
notification dated 12 February
1958 as per which it was
specifically mentioned that the
services of Mohan Lal and
Respondents 4 to 14 were
provisionally at the disposal of
the Board. The appellant side
contended that Counsel for
Board contended that Mohan Lal
was placed provisionally and that
he never became permanent
servant of the Board as he was
made permanent with PWD. In
the petition, Mohan Lal
contended that he had no lien
with the Govt. on abolition of
Govt Dept and his services were
permanently transferred to the
Board. Thus, Respondent I
contended that similar to other
respondent 4 to 14 the same
conditions are applicable in his
case,
The Supreme Court held that
there was no proof to show that
the provisional transfers were
made permanent. The court
further found out that all the
services which were placed at
the disposal of the PWD
including Respondent 1. worked
in identical way. Hence, the High
Court did not commit any error in
holding that Mohan Lal was in
the service of the Board in the
same way as the Respondents 4
to 14. Since, no new grades or
new service conditions were
framed by the Board, it is clear
that Mohan Lal and Respondent
4 to 14 continued to be governed
by the old service and grade
conditions applicable to them
when they were servants of the
state of State Government in the
Electrical and Mechanical
Department where they were all
serving as Foremen. Since all of
them (Respondent 1 and
Respondents 4 to 14) are
governed by the identical rules, it
is clear that Mohan Lal was
entitled for
promotion on the basis of
equality with the Respondents 4
to 14.

2 Issue or Contention:-

The Counsel for Board

contended that it is prima facie
that Board cannot be held to be
covered by these authorities the
Government and Parliament of
India and the Government and
the Legislature of each of the
States and local authorities. The
expression "other authorities" if
read ejusdem generis with those
named cannot cover the Board
because the Board is a corporate
body which has a separate
existence and it has been
constituted mainly for the
purpose of carrying on
commercial activities.

The counsel for the Board relied

on the decision in a case of
Madras High Court - The
University of Madras v. Shantha
Bai
and Another'. In this case a
question was raised before the
Madras High Court whether a
University can be held to be
other authority or local authority
as defined under Article 12. The
court held that as per the
Ejusdem Generis principle by
local or other authority' it meant
the authorities which exercise
governmental functions. These
authorities cannot include
persons who cannot be regarded
as instrumentalities of the
Government. The University
does not execute any
Government functions. The
function of the university is
mainly to promote education.
Therefore, it cannot be a 'State'.
There is a difference between
'State- aided' and 'State-
maintained institutions. The
university is state-aided and not
maintained, therefore it cannot
be brought under the definition
on that ground either.

The counsel for the Board also

relied upon
the case of B. W. Devadas v. The
Selection Committee for
Admission of Students to the
Karnataka Engineering College,
and Others.

In this case the High Court of

Mysore held that "the term
'authority' in the ordinary
dictionary sense may comprise
not merely a person or a group of
persons exercising governmental
power, but also any person or
group of persons who, by virtue
of their position in relation to
other person or persons, may be
able to impose their will upon
that other person or persons. But
there is an. essential difference
between a political association of
persons called 'the State' giving
rise to political power connoted
by the well-known expression
'imperative law' and a non-
political association of persons
for other purposes by contract,
consent or similar type of mutual
understanding related to the
common object of persons so
associating themselves together
giving rise to a power which
operates not in the manner in
which imperative law operates,
but by virtue of its acceptance by
such associating persons based
upon contract, consent or mutual
understanding." The Court
further held that "The term
'authorities' occurring in Art. 12
could only mean a person or a
group of persons who exercise
the legislative or executive
functions of a State or through
whom or through the
instrumentality of whom the State
exercises its legislative or
executive power."
On the basis of these decisions,
and the principles laid down
therein, it was urged that an
examination of the provisions of
the Electricity Supply Act will
show that the Board is an
autonomous body which cannot
be held to be functioning as an
agent of the Executive
Government and, consequently,
it should be held that it is
not "State" within the meaning of
Art. 12 of the Constitution.

The Supreme Court said that the

High Courts fell into an error in
applying the principle of ejusdem
generis when interpreting the
expression "other authorities in
Art. 12 of the Constitution, as
they overlooked the basic
principle of interpretation that, to
invoke the application of ejusdem
generis rule, there must be a
distinct genus or category
running through the bodies
already named...

The court further relied upon the

sayings of Craies on Statute
Law. Craies on Statute Law
summarises the principle as
follows:- "The ejusdem generis
rule is one to be applied with
caution and not pushed too far...
To invoke the application of the
ejusdem generis rule there must
be a
distinct genus or category. The
specific words must apply not to
different objects of a widely
differing character but to
something which can be called a
class or kind of objects. Where
this is lacking, the rule cannot
apply, but the mention of a single
species does not constitute a
genus."

The court quoted Maxwell.

Maxwell in his book on
'Interpretation of Statutes
explained the principle by saying:
"But the general word which
follows particular and specific
words of the same nature as
itself takes its meaning from
them, and is presumed to be
restricted to the same

genus as those words.... Unless

there is a genus or category,
there is no room for the
application of the ejusdem
generis doctrine"
The Supreme Court relied upon
the case of United Towns Electric
Co., Ltd, v. Attorney-General for
Newfoundland'. In this case the
Privy Council held that (in their
opinion) there is no room for the
application of the principle of
ejusdem generis in the absence
of any mention of a genus, since
the mention of a single species.
For example, water rats does not
constitute a genus.

The Supreme Court said that in

Art, 12 of the Constitution, the
bodies specifically named are the
Executive Governments of the
Union and the States, the
Legislature of the Union and the
States. and local authorities. The
court was unable to find any
common genus running through
these named bodies, nor can
these bodies be placed in case
single on any rational basis. The
doctrine of ejusdem generis
could not therefore, he applied to
the interpretation
of the expression "other

authorities" in this article.

The court relied upon meaning of

the word "authority" mentioned in
Webster's Third New
International Dictionary as per
which "authority" is "a public
administrative agency or
corporation having quasi-
govemmental powers and
authorised to administer a
revenue- producing public
enterprise." The court found out
that the dictionary meaning of the
word "authority" is clearly wide
enough to include all bodies
created by a statute on which
powers are conferred to carry out
governmental or quasi-
governmental functions. The
Supreme Court held that the
expression "other authorities" is
wide enough to include in it every
authority which is created by a
statute and is functioning within
the territory of India, or under the
control of the Government of
India. The Supreme Court did not
find any reason to narrow down
this meaning in the context in
which the words "other
authorities" are used in Art, 12 of
the Constitution.

The Supreme Court relied upon

the case of Smt. Ujjam Bai v.
State of Uttar Pradesh for
understanding the interpretation
of "other authorities" mentioned
in Article 12. In this case Justice
Ayyangar has held that 'other
authorities' mentioned in Article
12 includes the authorities within
the territory of India which cannot
obviously be read as ejusdem
generis with either the
Government and the Legislatures
or local authorities. He said that
the words are of wide amplitude
and they are capable of
comprehending each and every
authority which is created under
a statute and which functions
within the territory of India or
under the control of the
Government of India. He further
pointed out that there is
no characterisation of the nature
of the 'authority' in this residuary
clause and it must include every
type of authority which is set up
under a statute for the purpose of
administering laws which are
enacted by the State or the
Parliament including those
vested with the duty to make
decisions in order to implement
those laws.

The Supreme Court also cited

the case of K. S. Ramamurthi
Reddiar v. The Chief
Commissioner, Pondicherry and
Another. In this case the
Supreme Court while dealing
with Art. 12 has held that all other
authorities or local authorities
within the territory of India
include all authorities within the
territory of India whether they are
under the control of the
Government of India or under the
control of the Governments of
various States and even those
autonomous authorities which
may not be under the control of
the
Government at all.

Justice Bhargava in the present

ease (Rajasthan Electricity Board
case) said that the provisions are
present in the Electricity Supply
Act which clearly reflect that the
powers conferred on the Board
include power to give directions
and the disobedience of such
directions is punishable as a
criminal offence. Thus, he held
that the Board was clearly an
authority to which the provisions
of Part III of the Constitution
were applicable.

Justice Shah in the present case

said that the Board is an
authority invested by statute with
certain sovereign powers of the
State. He said that the Board had
the power to promote
coordinated development,
generation, supply and
distribution of electricity and for
that purpose it had power to
alter, amend and
carry out schemes under Ch. V
of the Electricity (Supply) Act,
1948, to engage in certain
incidental undertakings; to
organise and carry out power
and hydraulic surveys; to
conduct investigation for the
improvement of the methods of
transmission; to close down
generating stations; to
compulsorily purchase
generating stations,
undertakings, mains and
transmission lines; to place
wires, poles, brackets,
appliances, apparatus, etc; to fix
grid tariff; to issue directions for
securing the maximum economy
and efficiency in the operation of
electricity undertakings; to make
rules and regulations for carrying
out the purposes of the Act; and
to issue directions under certain
provisions of the Act and to
enforce compliance with those
directions. He further said that
the Statute also gave extensive
powers to the Board to control
over electricity undertakings. He
pointed
out that the power to make rules
and regulations and to administer
the Act is in substance the
sovereign power of the State
delegated to the Board. Thus, he
held that the Board is "other
authority" within the meaning of
Art. 12 of the Constitution.

The expression "State" is defined

in Art. 12 for the purpose of Part
III of the Constitution. Article 13
prohibits the State from making
any legislative or executive
direction which takes away or
abridges the rights conferred by
Part III and declares any law or
executive direction in
contravention of the injunction
void to the extent of such
contravention. In determining
what the expression "other
authority" in Art. 12 connotes,
regard must be had not only to
the sweep of fundamental rights
over the power of the authority,
but also to the restrictions which
may be imposed upon the
exercise of
certain fundamental rights (e.g.,
those declared by Art. 19) by the
authority. Fundamental rights
within their allotted fields
transcend the legislative and
executive power of the sovereign
authority. But some of the
important fundamental rights are
liable to be circumscribed by the
imposition of reasonable
restrictions by the State. The true
content of the expression "other
authority" in Art. 12 must be
determined in the light of this
dual phase of fundamental rights.
In considering whether a
statutory or constitutional body is
an authority within the meaning
of Art. 12, it would be necessary
to bear in mind not only whether
against the authority,
fundamental rights in terms
absolute are intended to be
enforced, but also whether it was
intended by the Constitution-
makers that the authority was
invested with the sovereign
power to impose restrictions on
very
important and basic fundamental
freedoms.

Thus, the appeal was dismissed

by the Supreme Court.

PRESENT SCENARIO

The decision in the present case

overruled the earlier decisions
which excluded the universities
from the definition of "State"
under the ambit of Article 12.
Thus, from this decision onwards
the universities have been held
to be state.
Later in the case of Sukihdev
Singh v. Bhagatram Sardar
Singh Raghuvansh? (Sukhdev
Singh), the question arose before
the court that whether statutory
corporations like ONGC, LIC and
IFC which are created
respectively by Oil and Natural
Gas Commission Act 1959, the
Life
Insurance Act, 1956 and the
Industrial Finance Act, 1948
come under the ambit of the
definition of "the State" as
mentioned in Article 12. The
court held that all the three
corporations were "State" as
defined under Article 12. This
judgement was given by a
majority of 4 to 1. The majority
led by CJ Ray gave this
judgement by following the
judgement of the Rajasthan
Electricity Board case. CJ Ray
held that all the statutory bodies
are state, combination of state
fund and furnishing important
public services will make them
state. Since, ONGC was
established under ONGC Act, it
is a state.

Justice KK Mathew in his

concurring judgement pointed
out that public corporations are
springing from the new social
and economic functions of
government. He pointed out that
instead of characterizing public
corporations in old
legal system, it should be
adapted to the changing needs.
He said that the State being an
abstract entity has to act through
an agency or instrumentality or a
juristic person. He referred to
Article 298 and pointed out that
the government has to do
business through agencies. He
pointed out that the criteria to
determine whether such agency
is a state or not should not only
be the binding orders nor it
should be solely on the baiss of
the extent of financial support by
the state. The combination of
state aid and furnishing an
important public service may
result in conclusion that the
appointment agency should be
classified as state agency.

Justice Allagiriswamy gave his

dissenting opinion. He pointed
out that no distinction can be
drawn between the order made
by ordinary company and
statutory corporation because no
sovereign function
is performed by either of them.
He apprehended that if "other
authorities" is given a liberal
interpretation then corporation
employees will get more benefit
than public servant and courts
will be flooded by petition relating
to petty matters like seniority, pay
scale, punishments.

Justice Mathew's approach in the

Sukhdev Singh case found
favour in the Supreme Court and
the Supreme Court applied the
principle of
instrumentality/agency in the
case of Ramana Dayaram Shetty
v. International Airport Authority
of India (R.D. Shetty Case). In
R.D. Shetty case, Justice
Bhagwati pointed out that the
corporations acting as
instrumentalities or agencies of
the government would be subject
to the same limitations in the field
of constitutional or administrative
law as the government itself.
Ultimately, he laid
down certain principles to
determine the character of
corporation as a State. The
principles of the R.D. Shetty
Case were accepted and more
exhaustive principles were laid
down in the case of Ajay Hasia v.
Khalid Mujib Sehravardi", they
are:-

1. If the entire share capital of

the corporation is held by
Government, it would go a long
way toward indicating assistance
of the state is so much as to
meet almost entire expenditure
of 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 corporation
being impregnated with
governmental character.
3. 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
as an instrumentality or agency
of Government.
6. If a department of Government
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.

R.D. Shetty's principles were

further applied in the case of
Som Prakash Reddv.
Union of India" in which Bharat
Petroleum Corporation was
treated as state's agency. Later it
was transferred to Central
Government which took over it
under Burmah Shell Act, 1976. It
became statutory corporation.

The next very important case is

the case of "Pradeep Kumar
Biswas v. Indian Institute of
Chemical Biology" it essentially
overruled the Ajay Hasin case.
The court ruled that there is no
hard and fast rule that registered
societies having link with the
government are always state.

"Zee Telefilms Lid. V. Union of

India" "also followed the Pradeep
Kumar Biswas decision and ruled
that the BCCI is not a state. The
case was decided by a majority
of 3 to 2. In this case, the
question was whether the Board
of Control for Cricket in India was
"State" within the meaning of
Article 12. The Board argued that
its
autonomous nature took it out of
the ambit of Article 12, per
Pradeep Kumar Biswas. Zee
Telefilms, on the other hand,
pointed to the "governmental
functions exercised by the Board
in the area of cricket." The Court
held in favour of the Board.
Following Pradeep Kumar
Biswas, it noted that the Board
was not created by statute, the
Government held no share
capital, provided no financial
assistance, conferred no
monopoly, exercised no
pervasive control, and had not
transferred a government-owned
corporation. Consequently,
Article 12 was not applicable.
Responding to the petitioners'
contentions, the Court then
stated: "Even assuming that
there is some element of public
duty involved in the discharge of
the Board's functions even then
as per the judgment of this Court
in Pradeep Kumar Biswas that by
itself would not suffice for
bringing the Board within the net
of "other
authorities" for the purpose of
Article 12" 14

The petitioners also argued a

variant of the functional testie.,
the power of the Board, by virtue
of its near-exclusive control over
cricket in India, to impact an
important fundamental right on a
national scale: the Article 19(1)
(g) right to carry on a trade,
business or profession- brought it
within the ambit of Article 12.
Rejecting this contention, the
Court held that "the pre- requisite
for invoking the enforcement of a
fundamental right under Article
32 is that the violator of that right
should be a State first... [but] we
have already held that the
petitioner has failed to establish
that the Board is State within the
meaning of Article 12. Therefore,
assuming there is violation of any
fundamental right by the Board
that will not make the Board a
"State" for the purpose of Article
12,
The Supreme Court conceded
that the relief against the BCCI
could be available in High Courts
under Article 226 but not in the
Supreme Court under Article 32.
Workload with the court was one
of the reasons for such a
decision, but clearly Article 32 is
available against the violation of
any fundamental right including
the ones which are guaranteed
against the non-state bodies or
private individuals, Minority in
this case emphasized upon the
functions test and even pleased
for the rejection of agency or
instrumentality test. On the facts
of the case majority can be
justified in its conclusion, but in
line with the widening application
of fundamental rights and the
need to protect human dignity
from all invasions, functions and
other suitable tests must be
evolved and applied. Even
though exclusion of BCCI from
the definition of "the State" has
not
yet been disturbed by the court,
following the functional test laid
down in earlier cases starting
with Sukhdev Singh case the
court without overruling Zee
Telefilm case has emphasized on
the nature of duties and functions
on which the minority relied in
Zee Telefilm. Thus, any day in
future a larger Bench of the
Court may overrule Zee Telefilm
and bring BCCI within the
definition of "the State".
CONCLUSION AND
SUGGESTIONS

"State" is defined in Article 12

which comes under Part III of the
Constitution of India. Hence,
fundamental rights are
enforceable against those bodies
which are covered under the
definition of Article 12. In the
present time, state cannot
perform all the functions so its
various functions are performed
through outsourcing by corporate
agencies or bodies.
In the case of The University of
Madras vs. Shanta Bai", the High
Court did not allow the petition
against university because the
court applied the rule of
"ejusdem generis" (of the same
kind). The High Court pointed out
that university is not of the same
kind of institution which are
enumerated in Article 12. This
view was reaffirmed in B.W.
Devdas v. Karnataka Regional
Engineering College" and again
it was reiterated by the Punjab
High Court in Krishna Gopal
Ramchandra Sharma v. Punjab
University".
In Rajasthan Electricity Board vs.
Mohan Laf, the Supreme Court
held that the term "other
authorities" under Article 12
should include all authorities
created by the Constitution and
other

statutes which are empowered

by law. The statutory authority
does not need to be
engaged in performing
governmental or sovereign
functions, the court also
observed that the Rajasthan
Electricity Board, in the instant
case had the power to give
directions, the disobedience of
which was punishable as an
offence. This case overruled the
judgment given in the University
of Madras vs. Shanta Bai which
excluded 'Universities from the
definition of state,

Later in the case of Sukihdev

Singh v. Bhagatram Sardar
Singh Raghuvanshi (Sukhdev
Singh), the question arose before
the court that whether statutory
corporations like ONGC, LIC and
IFC come under the ambit of the
definition of "the State" as
mentioned in Article 12. The
court held that all the three
corporations were "State" as
defined under Article 12. This
judgement was given by a
majority of 4 to 1. The majority
led by CJ Ray gave this
judgement by following the
judgement of the Rajasthan
Electricity Board case

After this the court in R.D. Shetty

Case the court has laid down the
test of instrumentality and a more
exhaustive test was laid down by
the court in Ajay Hasia case

The case of "Pradeep Kumar

Biswas v. Indian Institute of
Chemical Biology"" overruled the
Ajay Hasia case. The court held
that there is no hard and fast rule
that registered societies having
link with the government are
always state. In SRM university
case it was held that imparting
education in higher studies to
students at large was a public
function, and since it was a
deemed university and governed
by the University Grants
Commission Act, 1956 alike
other universities then it is an
authority as provided in Article 12
of the
Constitution. This seems to be a
good approach that the Court
should look into the kind of
function which is in question and
if the function can have an
influence over effective exercise
of fundamental right by an
individual then should be brought
within the ambit of Article 12.
This approach will also ensure
horizontal application of
fundamental right i.e., if a private
body is performing a function
which could hamper influence
individual's exercise of
fundamental right it could be
brought within the purview of
Article 12.
"Zee Telefilms Ltd. V. Union of
India" followed the Pradeep
Kumar Biswas decision and ruled
that the BCCI is not a state. Even
though exclusion of BCCI from
the definition of "the State" has
not yet been disturbed by the
court," following the functional
test laid down in earlier cases
starting with Sukhdev Singh case
the court
without overruling Zee Telefilm
case has emphasized on the
nature of duties and functions on
which the minority relied in Zee
Telefilm." Thus, any day in future
a larger Bench of the Court may
overrule Zee Telefilm and bring
BCCI within the definition of "the
State".

Therefore, the judiciary has

played a major role in the
development of Article 12 of the
Constitution.