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TMI Blog2007 (8) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... r suitable writ, order or direction to the respondents to extend the benefits of pension, gratuity and general provident fund on retirement in favour of the writ petitioners, to provide facilities of loan, advances for betterment of career, status and life in terms of housing loan, car loan, computer loan etc. in favour of the writ petitioners and also to extend the benefits of the same pay and allowances in favour of the writ petitioners as are admissible to the academic staff of National Council of Educational, Research and Training ('NCERT' for short) at par or to pass any other order or direction as may be deemed fit and proper. It may be noticed that Regulation 67 of SCERT Rules and Regulations which provided that the terms and tenure of service of the academic staff at the Council shall remain the same as available for the academic staff of NCERT was amended by notification dated 7.12.1999 retrospectively to the effect that the terms and tenure of service of academic and other staff of the Council should remain the same as available for the academic and other staff of the Directorate of Education, G.N.C.T. of Delhi with such modifications that may be specifically adopted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the tests laid down, SCERT was a society registered under the Societies Registration Act, which was a master of its affairs and which was not subservient to the Government and that the Government did not have effective or pervasive control over the working of the society which was governed by a Committee constituted by its bye-laws and the mere fact that the Government was making available grants to SCERT and SCERT was entrusted with the looking after of a facet of education, which was part of the duty of the State and the existence of some ex officio members in the Committee are not sufficient to uphold the plea that SCERT was a State especially since in Pradeep Kumar Biswas case, the decision in Chander Mohan Khanna had not been overruled and only one aspect relied on in Chander Mohan Khanna decision had been found to be not sustainable. The respondents, on the other hand, contend that the larger bench in Pradeep Kumar Biswas's case had specifically overruled Sabhajit Tewary's case [(1975) 1 S.C.C. 485] and this meant that the decision in Chander Mohan Khanna was no more good law and the High Court was right in its conclusion on that basis. It is further submitted that going b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenging a direction subsequently issued by the High Court in another writ petition following the decision of the Division Bench giving rise to Civil Appeal No. 3272 of 2003. The fate of this Appeal depends upon the decision in Civil Appeal No. 3272 of 2003 and no separate discussion of the facts therein is needed. 9. As the decisions of this Court show, there is no simple litmus test, to determine whether an entity is a State or other authority within the meaning of Article 12 of the Constitution of India. What is clear from the decisions is that the various facets of the foundation and the working of the entity would be relevant in determining the question in the context of the duties entrusted to it or taken up by it for performance. It is in that context that in the latest larger Bench decision in Pradeep Kumar Biswas (supra), the majority summed up the position in paragraph 40 thus:- "The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utive Committee would enter into arrangements with Government, public or private organisations or individuals in furtherance of the objectives for implementation of programmes. The funds of the NCERT consist of: (i) grants made by the Government, (ii) contribution from other sources and (iii) income from its own assets. It is free to apply its income and property towards the promotion of its objectives and implementation of the programmes. The Government control is confined only to the proper utilisation of the grant. The NCERT is thus largely an autonomous body." Their Lordships concluded that in their Lordships' opinion having regard to the indications to which they had called attention earlier, NCERT did not qualify as a State under Article 12 of the Constitution of India. The provisions of the Memorandum of Association and the bye-laws of SCERT are more or less the same as that of NCERT. Whereas NCERT was to assist the National Government in the matter of coordinating education, SCERT was to assist the State Government in the matter of promoting education within the State of Delhi. It is also governed by an Executive Committee. The income and property of the Council however de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 12 of the Constitution of India. No doubt, in Chander Mohan Khanna (supra), the Bench noted that the fact that education was a State function could not make any difference. This part of the reasoning in Chander Mohan Khanna (supra) case has been specifically disapproved by the majority in Pradeep Kumar Biswas (supra). The majority noted that the objects of forming Indian Institute of Chemical Biology was with the view of entrusting it with a function that is fundamental to the governance of the country and quoted with approval the following passage in Rajasthan SEB Vs. Mohan Lal [(1967) 3 S.C.R. 377]: "The State, as defined in Article 12, is thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people." The majority then stated: "We are in respectful agreement with this statement of the law. The observations to the contrary in Chander Mohan Khanna V. NCERT relied on by the learned Attorney-General in this context, do not represent the correct legal position." 12. But, it may be noticed that in conclusion, the majority only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the liabilities and assets are to be taken over at book value by the Government of Delhi which had to appoint a liquidator for completing the dissolution of the Body. The creditors' loans and other liabilities of SCERT shall have preference and bear a first charge on the assets of the Council at the time of dissolution. This is not an unconditional vesting of the assets on dissolution with the Government. It is also provided that the provisions of the Societies Registration Act, 1860 had to be complied with in the matter of filing list of office-bearers every year with the Registrar and the carrying out of the amendments in accordance with the procedure laid down in the Act of 1860 and the dissolution being in terms of Sections 13 and 14 of the Societies Registration Act, 1860 and making all the provisions of the Societies Registration Act applicable to the Society. These provisions, in our view, indicate that SCERT is subservient to the provisions of the Societies Registration Act rather than to the State Government and that the intention was to keep SCERT as an independent body and the role of the State Government cannot be compared to that of the Central Government in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmission of the Government for incurring additional expenditure in terms of service benefits to its employees. 16. It appears to us that in the case of bodies like SCERT, the court cannot ignore the financial implications of implementing the directions that it is called upon to issue. The object of SCERT is laudable and it has to coordinate and promote education in the State. Its resources are limited and the main income is by way of grant from the State Government. When SCERT pleads that it cannot spend the whole of the grant or a major portion of the grant in paying salaries and emoluments to its employees and if it does so, that may tend to frustrate the very object with which the society was formed, it is an argument that has to be considered weighty by a court called upon to exercise jurisdiction under Article 226 of the Constitution of India. A court cannot issue a direction which would tend to frustrate the very object with which a society like SCERT is formed or a body like SCERT is created. After all, there may be a point of time in a welfare State where the right of the employees must be subservient to the right of the society. In the matter of education, surely, the int ..... X X X X Extracts X X X X X X X X Extracts X X X X
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