TMI Blog2007 (8) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court are set aside - Appeal (civil) 3272 of 2003 and C.A. No. 8132 of 2003 - - - Dated:- 14-8-2007 - BALASUBRAMANYAN P.K.I. AND NAOLEKAR, P.P., JJ. JUDGMENT P.K. BALASUBRAMANYAN, J. 1. In this appeal, the challenge is to the decision of the Delhi High Court holding that the State Council of Education, Research and Training ('SCERT' for short) is a State within the meaning of Article 12 of the Constitution of India and the conclusion that the Lieutenant Governor of Delhi, SCERT and others are bound to implement the policy decision of SCERT as reflected in Regulation 67 framed by it as also the Advanced Career Promotion Scheme. But a caveat was entered that those who have not been absorbed, cannot be given the benefit of the decision unless they are absorbed permanently in SCERT. The writ petition was allowed on the above terms with costs. 2. We may notice that the writ petition was not allowed as prayed for nor was a mandamus as such issued to the respondents. The prayer in the writ petition was for the issue of a writ of mandamus or any other suitable writ, order or direction to the respondents to extend the benefits of pension, gratuity and general provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this Appeal has been filed. 4. We may notice here that the High Court held that the decision by this Court in Chander Mohan Khanna Vs. N.C.E.R.T. ors.[(1991) 4 S.C.C. 578] could not govern the case of SCERT in view of the decision in Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology ors. [(2002) 5 S.C.C. 111] and in that view, it was held that the Society was a State and that the amendment of the Regulation would not affect the employees who had joined SCERT prior to the date of the amendment. 5. It is argued on behalf of the appellants that the High Court was clearly in error in not properly examining the question whether SCERT was a State or other authority within the meaning of Article 12 of the Constitution of India even going by the principle laid down in Pradeep Kumar Biswas's case (supra). It was further submitted that the High Court has given no reasons for holding that the decision in Chander Mohan Khanna could not be applied to the case in view of the position emerging from the bye-laws of both the societies. It was submitted that going by the tests laid down, SCERT was a society registered under the Societies Registration Act, which was a master of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in challenge before the High Court and there was no justification in the High Court holding that the non existant Regulation 67 as it existed prior to the amendment, should be implemented in respect of the writ petitioners. 7. These submissions are sought to be met by the respondents by contending that the employees were entitled to benefit on the principle of 'equal pay for equal work', that the original Regulation 67 applied to employees who were in service prior to its amendment and that the High Court was right in holding that the retrospective amendment of Regulation 67 could not affect the employees who were in place before the date of the amendment. Learned counsel further submitted that the direction issued by the High Court was only to direct SCERT to implement its own resolutions without waiting for governmental clearance for their implementation and considering that SCERT was an autonomous body, the direction in that behalf was justified. It was thus submitted that the appeal was liable to be dismissed. 8. Civil Appeal No. 8132 of 2003 is filed by SCERT challenging a direction subsequently issued by the High Court in another writ petition following the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning of Article 12 of the Constitution of India. This Court after quoting from the decision of the High Court regarding the relevant Rules of NCERT stated: "The object of the NCERT as seen from the above analysis is to assist and advise the Ministry of Education and Social Welfare in the implementation of the Governmental policies and major programmes in the field of education particularly school education. The NCERT undertakes several kinds of programmes and activities connected with the coordination of research extension services and training, dissemination of improved educational techniques, collaboration in the educational programmes. It also undertakes preparation and publication of books, materials, periodicals and other literature. These activities are not wholly related to Government functions. The affairs of the NCERT are conducted by the Executive Committee comprising of Government servants and educationists. The Executive 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no role to play on the administration of the Council or in the working of the Council or over its finances, once the grant was made. 11. The two elements, one, of a function of the State, namely, the coordinating of education and the other, of the Council being dependant on the funding by the State, satisfied two of the tests indicated by the decisions of this Court. But, at the same time, from that alone it could not be assumed that SCERT is a State. It has to be noted that though finance is made available by the State, in the matter of administration of that finance, the Council is supreme. The administration is also completely with the Council. There is no governmental interference or control either financially, functionally or administratively, in the working of the Council. These were the aspects taken note of in Chander Mohan Khanna (supra) to come to the conclusion that NCERT is not a State or other authority within the meaning of Article 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. Their Lordships in the majority also specifically overruled as a legal principle that a Society registered under the Societies Registration Act or a company incorporated under the Companies Act, is by that reason alone excluded from the concept of State under Article 12 of the Constitution. In the case of SCERT, in addition to the operational autonomy of the Executive Committee, it could also amend its bye-laws subject to the provisions of the Delhi Societies Registration Act though with the previous concurrence of the Government of Delhi and that the proceedings of the Council are to be made available by the Secretary for inspection of the Registrar of Societies as per the provisions of the Societies Registration Act. The records and proceedings of the Council have also to be made available for inspection by the Registrar of Societies. In the case of dissolution of SCERT, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution of India. After all, the very formation of an independent society under the Societies Registration Act would also suggest that the intention was not to make the body a mere appendage of the State. We reverse the finding of the High Court on this aspect. 15. Once we hold that SCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India, we do not find ourselves persuaded to issue any such direction as sought for by the writ petitioners (the respondents herein). In fact, it becomes unnecessary to go into the question of validity of the amendment of Regulation 67, the effect of the uniform non implementation of Regulation 67 as it stood earlier, and the effect of the absence of a challenge in the writ petition to the amendment to the Regulation itself. It is also not necessary to go into the question whether SCERT should seek the permission 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 SCER ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
