Madras High Court
K.R.Palanisamy vs The Director on 25 April, 2014
Author: M. Venugopal
Bench: M. Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.04.2014
CORAM
THE HONOURABLE Mr. JUSTICE M. VENUGOPAL
W.P.No. 19334 of 2004
and
WPMP No.875 of 2007
K.R.Palanisamy ... Petitioner
Vs
1. The Director,
Institute of Road Transport,
Taramani, Chennai 600 113.
2. The Principal,
Institute of Road Transport Technology,
Erode, Periyar District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a writ of Certiorarified Mandamus, to call for the entire records of the Respondent pertaining to the 2nd Respondent's Letter dt.26.09.2000 under his Reference: IRTT/ADI/EST4/TS/2000 and quash the same and directing the Respondents to refix the Scale of Pay of the Petitioner in accordance with the Scale of Pay as fixed by the AICTE time to time for the post of Physical Director with effect from 01.01.1986 and also pay the arrears of the Petitioner's Salary calculated on that basis from 01.01.1986 upto date.
For Petitioner : Mr.R.Kannan
For Respondents : Mrs.Kala Ramesh
ORDER
The Petitioner has preferred the instant Writ of Certiorarified Mandamus in calling for the entire records of the Respondent relating to Reference IRTT/ADI/EST4/TS/2000 and quash the impugned order dated 26.09.2000 passed by the 2nd Respondent. Further, the Petitioner has sought for passing of an order by this Court for directing the Respondents to fix the salary in the Scale of Pay of Rs.2200 4000 with effect from 16.10.1986 and to pay the arrears occurred on and from 16.10.1986.
2. The Writ facts:
According to the Petitioner, he is a Post Graduate in Physical Education. After his Post Graduation, he joined as the Director of Physical Education in the 1st Respondent's Institute in the pay scale of Rs.550-25-750-30-900 on 16.10.1986 with a basic of Rs.700/-. He had completed 26 years of service in the same position.
3. The Government of Tamil Nadu was pleased to pass a G.O.Ms.No.1513, Education (J1) Department, dated 23.10.1989 in and by which, the Scales of pay of the Physical Directors and Librarians in Engineering Colleges were directed to be revised from Rs.700-40 1100-50-1300 to Rs.700-40-1100-50-1300-E.B.50-1600 with effect from 01.04.1980 notionally and monetary benefit from 01.01.1986, on the basis of the recommendation of the All India Council for Technical Education (hereinafter referred to as AICTE). On the implementation of the AICTE Scales of pay, his salary was fixed as Rs.1,740-3000 from 01.01.1986. In terms of G.O.Ms.No.1352 Education (G2) Department, dated 25.09.1989, the Pay Scales of the Directors of Physical Education can be fixed only in Rs.2200-4000 with an usual bunching benefits and they may be allowed increments in the Scale from 01.01.1986 or the date of appointment whichever is later.
4. The Physical Directors who were appointed on or after 01.04.1980 should possess the following qualifications;
i. A Master's Degree in Physical Education (High Second Class); ii. The Qualification prescribed by the University concerned on or after 01.04.1980.
After receipt of several representations from the Physical Directors/Librarians and some of them through their Associations requesting to grant further annual increments in the revised Scales of pay, the Director of Technical Education, Guindy, Madras 25, in letter No.1278/A-3/90-91, dated 05.04.1991, classified the Physical Directors/Librarians into three groups which runs as follows;
i. Those who were in service as on 01.04.1980 with the qualification existed then.
ii. Those who were appointed on or after 01.04.1980 and who fulfill the qualifications prescribed in G.O.Ms.No.392, Education Department on 16.04.1985 and G.O.Ms.No.343, Education Department on 16.04.1985.
iii. Those who were appointed on or after 01.04.1989 and who do not fulfill the qualification prescribed in G.O.Ms.No.393, Education Department, on 16.04.1985 and G.O.Ms.No.393, Education Department on 16.04.1985.
5. The Physical Directors/Librarians coming under Group I & II may be placed in the Scale of Pay of Rs.700-1600 notionally on 01.04.1984 or the date of joining whichever is later (as the case may be) and their pay may be fixed correspondingly in the revised AICTE Scales of Pay Rs.2200- 4000 with effect from 01.01.1986 and their pay may be regulated further. Annual increments could also be given to them.
6. In terms of G.O.Ms.No.392, Education and G.O.Ms.No.393, Education, dated 16.04.1985, the Petitioner possess the required qualification on the date of his joining in the services on IRTT, Erode and as such, come under Group II of the classification. In accordance with G.O.Ms.No.1352, Education (G2), dated 25.09.1989 and as per the letter No.1278/A3-9091 dated 05.04.1991, his pay was to be fixed at Rs.2,200 in the Scales of Rs.2200 4000.
7. He submitted his representation to the IRTT, Erode in regard to the fixation of his pay in this revised scale of pay according to the Government Order and the letter of the Director of Technical Education. Subsequently, he made various oral representations and in spite of his repeated requests and representations to the Concerned Authorities, he was not given either proper reply or any suitable action was taken to revise his pay to enhance the same as per the G.Os.cited supra. As such, he was forced to file a W.P.No.13103 of 1993 for issuance of writ of Certiorarified Mandamus in directing the Respondent to fix his Salary in the Scale of Pay of Rs.2200-4000/- with effect from 16.10.1986 and for directing the Respondents to pay the arrears accrued on and from 16.10.1986. In the said writ petition, this Court was pleased to pass an order on 28.08.2000, directing the Respondents to consider the representation made by him on 24.01.1992 within a period of three months from the date of receipt of copy of the order.
8. The 2nd Respondent in pursuance of the aforesaid order, issued a letter dated 26.09.2000 under his reference No.IRTT/AD I/EST4/TS/2000 stating that the Institution of Road Transport Technology is not a Government Institute and as such, the rules formulated by the Education Department and the Director of Technical Education for the Government and the Government Aided Institutions are not applicable to the Institution and further stated that IRTT is totally dependant on its own funds for the payment of Salary and so his representation dated 24.01.1992 to fix his Salary in the scale of pay of Rs.2200-4000 was negatived and his representation dated 24.1.1992 was rejected.
9. The order dated 26.09.2000 passed by the 2nd Respondent is totally against the Provisions of Law. The Respondent's Institute was started as per G.O.Ms.No.479, Department of Education, Science and Technology dated 26.04.1984. The Director of Technical Education has got control over the institute. Almost all the members of the College Committee are the Deputy Secretaries of the Government and the monogram of Government is also being utilised for all official purposes of IRTT and therefore, the 1st Respondent is being a Government Institution, is amenable to Writ Jurisdiction as held by this Court in W.P.No.16236 of 1990.
10. When the IRTT called for the application for the Post of Physical Directors Vide Advertisement No.IRTT/FD/16/TS/86, dated 02.09.1986, it was specifically declared that the Scale of pay for the post of Physical Directors and other posts for which Applications were called for would be as applicable to the Government Engineering Colleges in Tamil Nadu. The Scale of pay for other post of Lecturers of other Departments was refixed from time to time but the Scale of Pay to the Physical Directors alone was not refixed so as to repeated requests made by him. His representation dated 24.01.1992 was also rejected by the Respondents. The Impugned Order dated 26.09.2000 passed by the 2nd Respondent is totally a biased, baseless and vexatious one. The said order was passed after 8 years from the date of his representation which is against the principles of natural justice.
11. The Counter Averments of the Respondents:
The Writ petition was filed with an inordinate delay of more than 4 years, the prayers in the Affidavit and the writ petition are not in consonance with each other and hence, the same should be rejected. The Respondents submit the following facts are;
The Respondent herein is a society registered under the Societies Registration Act, 1860 and was established in 1976. All the State Transport undertakings in the State of Tamil Nadu are members of the Society. The Institute itself is run from the annual contribution made by STUs. The affairs of the Institute are governed by a Governing Council consisting of eminent persons. One of the objects of the Society is To promote and provide for education in any discipline including Engineering, Medicine and to establish and run Hospitals, dispensaries, and other diagnostic and the crapeutic Centres Towards fulfilling this object, the Engineering College viz. The Institute of Road and Transport Technology was started in the year 1984 under the aegis of this Respondent Society. The Capital expenditure was borne by the State Transport undertakings. To meet the running expenditure an amount of Rs.600/- was collected from over 1 lakhs employees of the STUs and placed as a corpus fund. The interest from this corpus fund was utilised for running the Engineering College. As a benefit to the employees for contributing to the Scheme 50% of the sanctioned seats in the Engineering College was earmarked for the wards of the Employees of STUs. Out of the total intake of 360 students per year 50% is filled up by Anna University through single window system and the balance 50% is filled up by the Institute of Road Transport from among the wards of employees of STUs on merit basis. This Scheme has been working satisfactorily till date.
12. The aforesaid institute is neither a Government Institution nor does it get any aid from any Government, University Grants Commission or AICTE for running the Engineering College. As the said college is not a Government Institution, none of the Government notifications are directly applicable to it. Relevant Government notifications, orders etc are considered by the Governing Council and the Governing Council has got the power to adopt or suggest modifications. The said Governing council is Supreme in all aspects.
13. The said institute has its own service Rules and Conditions and is not therefore, bound by the pay structure applicable to the Government service. The pay structure applicable to the Respondent is not similar to that of Government Colleges, also submitted that in writ petition viz., W.P.No.2363 of 1993, it was held by this Court that the Respondents' College can fix higher qualification norms was upheld by this Court. The method of admission to the aforesaid college was also upheld by a Division Bench of this Court wherein it was held that merely because the self financing institution is a public undertaking the same does not ipso facto make it a Government Institution. Further, in Writ Appeal viz., W.A.No.271 of 1996 batch a Division Bench of this Hon'ble Court while dealing with Post Graduate Admissions in Perundurai Medical College, another college belonging to the Institute of Road Transport has held that although the doctors will be service candidates for purpose of admission its staff members cannot be treated on par with those of other Government owned Institute in the matter of service Rules and Regulations. Only the Rules as approved by the Governing Council have the primacy.
14. The Petitioner joined as the Director of Physical Education in the Respondents' College on 07.11.1986 with a basic pay of Rs.700/- in the scale of pay Rs.550-25-E.B.30-900. Since he was given six additional increments with the approval of the Governing Council, his pay subsequently, was revised to Rs.1740-60-2700-EB75-3000 as per item No.13 of the 34th Governing Council meeting dated 27.11.1989. The Government passed certain orders in G.O.Ms.No.1352 dated 25.09.1989 wherein the pay scales of the Director of Physical Education in the Government Colleges was refixed. Further, in G.O.Ms.No.1513, dated 23.10.1989, the scale of pay of Physical Directors and Librarians in Government Engineering Colleges were revised from 1980 notionally and monetary benefits from 1986 on the recommendation of AICTE. These Government orders are applicable specifically to the Government and the Government Aided Engineering Colleges and for whom a major part of salary due to adoption of AICTE Scales is borne by Central Government. However, in Respondents' college all salary expenses are borne by themselves. As per G.O.Ms.No.393, dated 16.04.1985 certain increments were given for Physical Directors working in Government Institutions after grouping them into three different categories. The grouping and the revised pay scales were not implemented by the Respondent as they are not Government organisation. The Respondents' college is a self-financing non-minority Institution.
15. In W.P.No.13103/1993 filed by the petitioner, this Court on 28.08.2000 gave a direction to the Respondent to consider the petitioner's representation and pass orders. Accordingly, the 2nd Respondent passed an order dated 26.09.2000 explaining the status of the Institute and that Government orders are not directly applicable to them as it is not a Government College and that, the scale of pay was fixed at the appropriate level as approved by the Governing Council pursuant to its orders and the institute is bound only by the orders of the Governing Council. It was also pointed out that at the time of his joining, he was given six increments even though he had completed M.P.E.D only for the year 1983 and had no adequate experience, which was not as per any Government Rules and not payable in any Government College.
16. The Director of Technical Education has got control over all Engineering Colleges in Tamil Nadu including the Respondent College. However, this does not make IRTT a Government Institution. This Control is exercised by Director of Technical Education only to check violation of eligibility, conditions by students etc.,
17. The advertisement No.IRTT/FD/16/TY/86 dated 02.09.1986 was issued to fill up staff positions including physical Directors. In the advertisement, it was mentioned that scale of pay would be as applicable to the Government Engineering Colleges in Tamil Nadu. However, the Petitioner after getting his pay fixed with extra 6 increments, had given a go by to the said conditions. Even for lecturers, the applicable pay was approved and fixed by the Governing Council. The same Governing Council had granted lower scale to Physical Directors and it was adopted.
18. The Respondents' College is a self financing non-minority institution. It is run by the Institute of Road Transport and is neither a Government Institution nor a Government Aided Institution. The Government of Tamil Nadu vide G.O.(2d) No.7 Transport Department dated 23.06.2003 had specifically stated that the Institute of Road and Transport Technology, Erode was an unaided and self financing Institution. Also, the Special Commissioner and Secretary to Government of Tamil Nadu Transport Department in his letter dated 05.06.2004 had specifically stated that Educational Institutions run by institute of Road Transport were classified as unaided non-minority educational Institution and they do not come under the category of Government and Government Aided Educational Institution. No Government funds are given for these educational Institutions. All these go to prove that IRTT is not a Government/Government Aided Institution.
19. In a Government Institution, no extra increment could be given at the starting of career for a fresh entrant. Having accepted the extra increments, then, as a result of the self financing nature of the Respondent's college it is not correct on the part of the Petitioner now to claim that the said college is a Government Institution and therefore, his pay must be refixed.
20. Petitioner's Contentions;
The Learned Counsel for the Petitioner urges before this Court that the impugned order of the 2nd Respondent dated 26.09.2000 is baseless one and also, against the principles of natural justice. Further, it is represented on behalf of the Petitioner that 2nd Respondent rejected his representation dated 24.01.1992 without considering the facts and merits of the same. Also that, the Institute of Road Transport Technology is amenable to writ jurisdiction and the order of the 2nd Respondent dated 26.09.2000 in holding that the Institute is not Government Institute, is not a correct one in the eye of Law.
21. The Learned Counsel for the Petitioner refers to the order dated 28.08.2000 in W.P.No.13103 of 1993 (filed by the Petitioner), wherein, it is observed in paragraphs 2 and 3 as follows;
2. The Petitioner is aggrieved by the action of the respondents in not fixing the pay scale as per G.O.Ms.No.1352 Education dated 25.09.1989 in terms of G.O.Ms.No.1513, Education (JI) Department.
3. At the initial stage learned counsel for the respondents took objection as the writ petition is not maintainable since the respondent institute is not an 'authority' under Article 12 of the Constitution of India. But however both the counsel argued that the said objection may be left open as the same is not insisted upon for the present. From the facts and circumstances of the case, without going into the merits of the case, it is suffice if a direction is issued to the respondents Institute to consider the representation made by the petitioner on 24.01.1992 with respect to fixation of scale of pay as per G.O.Ms.No.1513, Education Department dated 23.10.1989, within a period of three months from date of receipt of this order.
22. However, the Petitioner's representation dated 24.01.1992 was rejected by the 2nd Respondent inter alia holding that this Institute is totally depended on its own funds for the payment of salary, they are unable to accede to his request dated 24.01.1992.
23. The Learned Counsel for the Petitioner relies on the order dated 16.06.2004 in W.P.No.3017 of 1993 (filed by the A.Chandrasekaran and three others V. The Director, Institute of Road Transport, Tharamani, Madras 600 113) passed by this Court whereby and whereunder in paragraphs 12 to 17, it is observed and held as follows;
12. The only ground on which the qualification of a degree is stated to be essential for the post of Junior Assistants is a resolution which is stated to have been adopted by the institute during the year 1986 itself and that for the post of Junior Assistants, the minimum educational qualification was a Degree from Universities recognised by the Tamil Nadu Government. Reference was also made to the proceedings in the context of appointment of the petitioners as Clerical Trainees while appointing the petitioners and that they having accepted such an appointment, the petitioners cannot now seek to agitate for being regularised as Junior Assistants.
13. It is not disputed that the petitioners though they have been classified as Clerical Trainees have been discharging the very same nature of duties discharged by the Junior Assistants, who have been regularly appointed being degree holders. Learned counsel for the petitioners had referred to the Circular issued by IRT on 14.9.1988 giving the details of allocation of duties and works relating to the Junior Assistants. The nature of the work assigned to each of the petitioners as assigned under the said Circular disclose that the petitioners were discharging the work of Junior Assistants only. This fact is not disputed by the respondents.
14. Therefore, having called the petitioners for interview for appointment to the post of Junior Assistant and after having selected them and appointed them to discharge the very same functions of a Junior Assistant, the stand of the respondents that they cannot be designated as Junior Assistants and that they will not also be entitled to wages, pay and allowances on par with Junior Assistants, cannot at all be sustained. The principle of equal pay for equal work will be applicable notwithstanding the nomenclature of the posts as held by the petitioners. It is also not disputed that as on date all the petitioners are now graduates.
15. Reliance is placed on the resolutions passed by the governing council of the institute prescribing a Degree Certificate as the minimum educational qualification for the post of Junior Assistant. Such a Resolution cannot override the statutory Government Order in G.O.Ms.No.479 dated 26.4.1994 in terms of which, the qualification for appointments to various posts shall be only in terms of rules and order applicable to the Government Engineering Colleges. Moreover, the service regulations of the IRT came to be formulated only in the year 1991. Chapter I of the General Rules also makes it specifically clear that the Rules shall come into force from 30.8.1991. Therefore, the said rules cannot be retrospectively made applicable to the staff who came to be appointed in 1987 itself. No reliance, therefore, can be placed on the Rules which came into effect only in the year 1991. As regards the staff who came to be appointed prior to the said date, the terms of qualifications as specified under G.O.Ms.No. 479 dated 26.4.1984 will govern such appointments. Consequently, as on the date when the petitioners came to be appointed, they were perfectly qualified and the refusal on the part of the respondents to give to the petitioners proper placement as Junior Assistants cannot be held to be valid. Reliance placed on the resolution of the society cannot be sustained as any such resolution would be contrary to G.O.Ms.No. 479 dated 26.4.1994. Resolution can be given effect to only for subsequent appointments. Moreover, as on date, it is not disputed that all the petitioners have acquired a degree and they are graduates. Therefore, there can be no difficulty in regularising the services of the petitioners by granting proper relaxation even if it is to be assumed that relaxation would be necessary. Power to relax has to be exercised where it is required in the interests of justice as they were appointed only pursuant to the calling for applications for the post of Junior Assistants. If they were not qualified then they ought not to have been appointed which had resulted in disabling them to seek for a job elsewhere. Therefore, apart from the fact that they were perfectly eligible and qualified to be appointed as Junior Assistants on the date when they were appointed in terms of G.O.Ms.No.479 dated 26.4.1984, on grounds of equity also, they have to be regularised by granting relaxation, if necessary.
16. Therefore, viewed from any angle, the stand of the respondents denying proper placement to the petitioners as Junior Assistants and the benefit of equal pay for equal work done by the petitioners cannot at all be sustained.
17. In the result, the petitioners are entitled to succeed and the Writ Petition is allowed as prayed for. No costs.
24. The learned Counsel for the Petitioner refers to the order of this Court dated 12.03.1992 in W.P.No.16236 of 1990 between P.Palanivel V. The Director Institute of Road Transport, Taramani, Madras 600 113 and another, whereby and whereunder in paragraphs 4 to 7, it is observed and held as follows;
4. Mr.S.Natanarajan, the learned counsel appearing for the petitioner contends that the respondent Institute, being a State under Article 12 of the Constitution of India, the Government Order in G.O.Ms.No.1080 Education (JI) Department dated 19.08.1989 is applicable to the case of the petitioner and that the petitioner is entitled to the scale of pay right from 11.09.1987 and not from 24.08.1989. The learned counsel for the petitioner points out that the services of the petitioner in the C.I.T. Coimbatore cannot be bisected by the respondents when the intention of the Government order inG.O.Ms.No.1080 Education (JI) Department dated 19.08.1989 is to benefit the staff in Engineering Colleges. He also contends that the petitioner cannot be singled out out on the ground that he has not served six years service. The learned counsel for the petitioner contends that the period of two years fixed by the respondents Managing Council is arbitrary.
5. Per contra, Mr.P.Arivudainambi, the learned counsel appearing for the respondents contends that the respondents is not a 'State' as defined under Article 12 of the Constitution of India and that the writ petition will not lie. That apart, the learned counsel contends that the petitioner is short of 15 days for six years, that according to the Managing Council of the respondents, which is a Supreme body decided that minimum of period of two years service is necessary before the petitioner can ask for the scale as per the provisions of the Government order cited supra.
6. Considering the arguments on both sides and on going the affidavit filed by both sides, I am of the view that the first question to be decided in this case is whether the first respondent is the State under Article 12 of the Constitution. As rightly contended by the learned counsel for the petitioner, the respondent institute has been started as per G.O.Ms.No.479 Department of Education, Science and Technology, dated 26.04.1984. A reading of the above mentioned Government Order Clears shows that the Director of Technical Education has got the control over the Institute. Almost all the members of the 'College Committee' are the Deputy Secretaries of the Government except one professor from Anna University, Madras. After considering the latest pronouncement of the Supreme Court in CHANDER MOHAN KHANNA V. NATIONAL COUNCIL (A.I.R. 1992 S.C. 76) with regard to the scope of Article 12 of the Constitution of India, I am of the view that the first respondent Institute is amenable to the writ jurisdiction as an authority under Article 12 of the Constitution. In the above mentioned case, the Supreme Court observed as follows;
. . . . . even in general principles, there is no cut and dried formula which would provide correct division of bodies into those which are instrumentalities or agencies of the Government and those which are not . . As such, on the facts of this case, I have no hesitation to hold that the first respondent is a 'state' under Article 12 of the Constitution of India.
7. With regard to the applications of the Government order in G.O.Ms.No.1080 Education Department dated 19.8.1989, on which the learned counsel for the petitioner relies upon that the petitioner is entitled to the benefit of the above mentioned Government order, even in the counter-affidavit it is stated that the Committee on humanitarian considerations also stated that past service in Government and Government Aided Institutions will be considered. I do not understand why the services of the petitioner in C.I.T.Coimbatore should not have been taken for that purpose. If that past service has been taken into account, which according to the learned counsel for the respondents falls short of 15 days for 6 years, Priya facie I am of the view that the petitioner is entitled to the benefit as per the provisions of the Government order, cited supra. At any rate, the decision of the Council giving benefit with effect from 24.8.1989 is arbitrarily passed without any basis. I do not see when the respondents are prepared to give benefits to the persons working in Government and Government Aided Institutions I do not see why the petitioner alone can be singled out and asked for to work two years in the respondent Institute to get the benefit. In my view, there is no basis for fixing such a period of two years. I am not able to accept the argument of Mr.P.Arivudainambi, that the Government of order in G.O.Ms.No.1080 Education (KI) Department dated 19.8.1989 will not apply to the case of the petitioner. A reading of the above mentioned Government Order clearly shows that the services of the petitioner have also to be taken into account in the revised scale of pay. That apart, even under the principle of equal for equal work the petitioner herein is entitled to get the scale of pay fixed in accordance with the Government order, mentioned above. As rightly pointed out by the learned counsel for the Petitioner, even though the services of the petitioner have been taken into account, the council of the respondent has arbitrarily has fixed the date as two years of service in the respondent Institute. I am of the view that the contention of the learned counsel for the petitioner has to be accepted on this ground. In view of that a direction is to issue to the respondents to re-fix the scale of the petitioner, taking into account the petitioners' services in the Institution in which he previously worked, and without insisting upon the services of two years in the first respondent Institute. The writ petition is allowed to the extent stated above. No costs.
25. The Learned Counsel for the Petitioner cites the Division Bench Judgment of this Court dated 04.07.2006 in W.A.No.3896 of 2004 between the Director, Institute of Road Transport, Tharamani, Madras 600 113 and another Appellant (Respondent in W.P.No.3017 of 1993) V. A.Chandrasekaran and three others - Respondents (Petitioner in W.P.No.3017 of 1993) wherein in paragraphs 6 and 7, it is observed and held as under;
6. We have gone through the entire materials placed on record and we are satisfied ourselves that when the Government sanctioned the Engineering College run by the appellants through G.O.Ms.No.479, Education, Science and Technology department, dated 26.4.1984, at column No.11, it prescribes that the staff recruitment should confirm to the rules and orders issued by Government for Government Aided Engineering Colleges. Therefore, the prescription of qualification of degree for the post of Junior Assistant through the minutes of the Engineering College by the appellants is contrary to the Government Order and Rules. Subsequently, the appellants have amended the Rules, which were approved by the Government, prescribing the minimum qualification as degree.
7. As seen from the facts and circumstances of the case, the respondents herein were appointed way back in the year 1987 and therefore, their service conditions are governed by the Rules existed as on that date. Therefore, we have no reason to entertain the writ appeal. Accordingly, the writ appeal is dismissed. No costs.
26. The Learned Counsel for the Petitioner refers to the order of the Hon'ble Supreme Court dated 27.02.2013 in Petition for Special Leave to Appeal (Civil Appeal) from the date of order between Director, Institute of Road Transport and another V. A.Chandrasekaran & others (With appln (s) for c/delay in filing process fee and with prayer for interim relief and office report) (For Final Disposal) With SLP (C) No.8487 of 2007 (with office report) (For final Disposal), SLP (C) No.5348 of 2007 (With prayer for interim relief and office report) (For Final Disposal), SLP (C) No.9171 of 2007 (With office report) (For Final Disposal), SLP (C) No.9173 of 2007 (With office report ) (For Final Disposal), SLP (C) No.9172 of 2007 (With office report) (For Final Disposal), SLP (C) No.24067 of 2007 (With prayer for interim relief and office report) (For Final Disposal), SLP (C) No.13600 of 2009 (With appln.(s) for c/delay in filing SLP and office report) (For Final Disposal) and whereby, it was ordered as follows;
A request is made on behalf of the petitioners for an adjournment on the ground that the arguing counsel has gone to appear in the Madras High Court. When we enquired from the counsel making the request as to whether he has any instructions from the petitioners, he submits that he is making the request on instructions from the Advocate-on-record who is also not present in Court.
27. The Learned Counsel for the Petitioner invites the attention of this Court to the order dated 08.12.2010 in W.P.No.7489 of 2007 (O.A.No.165 of 2003) between Salai Martrum Pokkuvarathu Poriyeal Kalloori Anna Paniyalargal Sangam, Rep.By its President IRT, Erode 638316 V. State of Tamil Nadu, Rep. By its Secretary to Government, Transport Department, Fort St.George, Chennai 600 009 and another, wherein in paragraphs 3 to 6, it is observed and held as follows;
3. On the other hand, Mr.Subramaniam, the learned Additional Government Pleader submitted that the Second Respondent Institute is not a Government Institute and therefore, no writ will lie against the same.
4. However, it is seen from paragraph 2 of the Counter Affidavit filed by the Second Respondent that the Second Respondent Institute is under the control of the Government of Tamil Nadu. Therefore, the plea of maintainability of the writ petition against the second respondent is liable to be rejected.
5. The Learned Counsel for the second respondent submitted that the representation dated 22.04.2002 given by the petitioner was addressed to the first respondent and the same was not given to the second respondent. In view of that, the petitioner is directed to submit a representation to the second respondent within a period of four weeks from the date of receipt of a copy of this order and the same is directed to be disposed of within six weeks thereafter.
6. With the above, the writ petition is disposed of. No costs.
28. The Learned Counsel for the Petitioner seeks in aid of the decision of the Division Bench of this Court in The Director of Medical Education, Chepauk, Madras-5 and another V. Dr.M.Ilango and five others, 2007-3-L.W.804 and at special pages 810 and 811, in paragraphs 9 to 13, it is observed as follows;
9. The only point for consideration in these Appeals and Writ Petition is as to whether Perundurai Medical College is one which is to be considered for the purpose of admission as a college coming under the control of the Government of Tamil Nadu.
10. In order to reckon a society/corporation/body as an agency or instrumentality or undertaking of the State, the test to be applied is as to whether it falls in the category of 'other authorities under the control of Government' within the meaning of Article 12 of the Constitution.
11. In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002 (5) SCC 111), the Supreme Court, after examining various Case Laws including Ajay Hasia's case, which we are discussing in the course of this Judgment, relating to 'authority under the control of the Government' in Article 12, in para 40 laid down multiple test as follows:-
40. 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 Article 12. The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State. The multiple tests propounded by the Supreme Court in the above case law is the criterion to find out as to whether a particular registered society is an undertaking or instrumentality of the State.
12. In that background, the question to be answered is whether the Registered society in question, ie., IRT PMC, is functionally, financially and administratively under the control of Government.
13. In Ajay Hasia vs. Khalid Mujib Sehravardi (1981 (1) SCC 722), a society registered under the Registration of Societies Act running the Regional Engineering College, which is sponsored, supervised and financially supported by the Government was held to be 'an authority under the control of Government' within the meaning of Article 12. In the said case, the funds to run the college was provided by State and Central Government. To adjudge whether a body is an instrumentality of the Government or not, the Apex Court laid down the following tests:-
1. If the entire share capital of the body is held by Government.
2. Where the financial assistance given by the Government is so large as to meet almost entire expenditure of the body.
3. It is a relevant factor if the body enjoys monopoly status which is conferred or protected by the State.
4. Existence of deep and pervasive control by the Government.
5. If the functions performed by the body are of public importance and closely related to governmental functions.
6. Specifically if a Department of Government is transferred to a corporation it would be a strong factor supportive of this inference of corporation being instrumentality or agency.
29. Also, in the aforesaid decision at pages 811 to 815 in paragraphs 17 to 21, it is observed and held as follows;
17. In the background of the rival contentions projected on either side, we carefully perused the materials placed before us particularly in respect of the character of the Institution. IRT Perundurai Medical College & Research Centre is one of the Medical Colleges in Tamil Nadu.
A. The details available in the Website medindia.com relating to PMC are as follows:-
IRT Perundurai Medical College & Research Centre, Perundurai Sanatorium University: Tamilnadu DR.M.G.R. Medical University Established in 1992 Address: Erode Dist., Perundurai, Sanatorium, Tamil Nadu,638053 Management : Government Website Email: [email protected] Contact Person Dr.(Mrs.)P.Kanmani UG Courses Available: MBBS - 60 Seats, BDS, B Pharm Bsc (Nursing) BPT/BOT PG Courses Available (emphasis supplied) B. In the Policy Note 2005-2006 of Health and Family Welfare Department relating to Medical Education, Medical Institutions etc., it is noted, Colleges Seats IRT Medical College, Perundurai (Quasi Government College) M.B.B.S. 1 60 (emphasis supplied) C. There is no dispute that PMC & Hospital was formed by IRT, which is under control of the Transport Department, Government of Tamil Nadu. The document, viz., a letter from Director, IRT, to the Dean, PMC & Hospital, specifically mentions that IRT is under the control of Transport Dept. Govt. of Tamil Nadu, vide page No.8 of the typed set of papers filed under the caption 'List of Documents' by R-1 in WA No.924 of 2006.
D. The following details available from the Website of the Directorate of Medical Education (DME) are also relevant.
Out of 60 seats available in Perundurai Medical College run by the Road Transport of Govt. Selection Committee allots 40 candidates while the remaining seats are filled up by the management with the wards of the Transport Corporation employees.
At present 11 Govt. Medical Colleges, 2 Private Medical Colleges, 1 Govt. Dental College and 7 Private Dental Colleges are functioning in the State under the Director of Medical Education. In addition Institute of Road Transport of the Govt. Transport Department is also running a Medical College at Perundurai. Forty hospitals are under the control of this Directorate. Every year, more than a thousand medical graduates and more than nine hundred medical post graduates, diploma and higher specialties graduates come out from the Govt. Medical Institutions after completing the courses. E. Even while calling for tenders in respect of certain works to be performed in the said Medical College (tender published in 'Dinakaran', Coimbatore Edition, dated06.07.2006), it was issued under the caption jkpH; ehL muR rhiy nghf;Ftuj;J epWtdk; ie., Government of Tamil Nadu, Institute of Road Transport.... The document available at page 13 indicates the same. Another tender notice which was published in Business Standard Chennai Edition, dated 11.10.2005, at page 14 of the typed-set, reads as under:-
GOVERNMENT OF TMAIL NADU THE INSTITUTE OF ROAD TRANSPORT PERUNDURAI MEDICAL COLLEGE PERUNDURI, ERODE 638 053.
........... F. While calling for qualified persons for the posts of Dean, Professor, Associate Professor/Reader, Assistant Professor, etc., in the Medical College and Hospital, the Director, IRT, Taramani, Chennai-113, has stated that the scale of pay and Dearness Allowance will be similar to Tamil Nadu Government Scales.
G. It is settled position that any Company, whether private or Government, is to be decided on the basis of (a) Investment and share holdings and (b) Management. In PMC, all the Investments are made by the Government. Land and building for the college were provided by the Government. It is also relevant to note that in private colleges, admissions are done through their own system and not by open entrance examination. It is not in dispute that, in so far as PMC is concerned, admission is also done by the very same Selection Committee. 60% of the seats are filled by way of entrance and 40% reserved for Transport Employees.
H. The information available in the website 'indegene.com' under the caption 'Recognized Medical Colleges of Tamil Nadu' shows PMC as affiliated to Dr.M.G.R. Medical University; year of inception as 1985; under the management of 'Government'. (vide page 20 of the list of documents)
18. It is relevant to point out that when petitioner - Dr.M.Elango applied as a service candidate as against the five seats earmarked for service category, his application was routed though the Director, IRT, on 26.04.1995. The Director, in his letter dated 26.4.1995, indicated that the PMC run by the IRT is neither a Government Institution nor a private Institution, but has all the characteristics of a 'government controlled institution'. (emphasis supplied)
19. In the prospectus of the Tamil Nadu Professional Courses Medical/Dental/ Paramedical for the year 1995-96, Annexure II shows the names of the Government Medical Colleges, and Perundurai Medical College is one among the ten Government Medical Colleges mentioned therein. Notification of Dr.M.G.R. University issued in Newspaper also shows that PMC is one of the Colleges considered as Government Medical Colleges. It is brought to our notice that the Writ Petitioner was required to execute a bond to serve in the Institution ie, PMC, for a period of 10 years after completion of the course, which is similar to the conditions being imposed in government service. The particulars furnished also show that Doctors working in other Government Medical Colleges were deputed to work in PMC, indicating as to the control of the State Government over the said college.
20. We make it clear that what is to be considered and decided here is as to whether the Government has pervasive control over PMC or not? We emphasise and reiterate that, in that background, the case of the parties and discussion of the court relate only to the sole aspect, viz., consideration of the members of the petitioner association as service candidates for the purpose of selection to PG Diploma/Degree/MDS courses in Government Medical/Dental Colleges in Tamil Nadu. We enumerate the vital aspects here-under in a summarised form, which would answer the question in a vivid manner.
Clause 61 (3) (c) of the Prospectus (2006-2007 Session) for admission to 3 year Higher Speciality Courses in Tamil Nadu Government Medical Colleges, issued by the Selection Committee, D.M.E., Chennai-10, specifies as follows:-
61. The following categories of Medical Officers will be treated as Service Candidates for the purpose of allotment of Seats:-
.........
(3) Medical Officers serving in:-
(c) Public sector undertakings and organisations under the control of Government of Tamil Nadu / Government of India in Tamil Nadu. (emphasis supplied) We carefully examined the status of the PMC run by the IRT in the light of the multiple tests and tenets laid down by the Supreme Court in Ajay Hasia and Pradeep Kumar Biswas. In a given case, it would have to be decided on a consideration of the relevant factors whether the IRT is an instrumentality or agency of the Government so as to come within the meaning of the expression 'authority' in Article 12. The answer must obviously be affirmative if we have regard to the Memorandum of Association and Rules of the Society. First of all, the Society came into existence after proper announcement made by the Government at the Floor of the Assembly. It is not as if that some individuals took initiatives to get the society registered. The Governing Council of the society is dominated by high ranking officials of the State Government viz., Secretary to Government, Transport Department, Commissioner of Technical Education, Joint Director ((BPE) Finance Department) etc. The role played and being played by the officials can, at no stretch of imagination, be said that they act so in their personal capacity and not as government officials. As could be seen from the Rules of the Society, it is those officials (Council) who shall cause proper books of accounts to be kept in respect of all sums of money received and expended by the Society. They alone shall prescribe the manner in which Balance sheet shall be prepared. It is specifically provided that the accounts of the society shall have to be submitted to the Government. Clause-9(a) of the Rules stipulates that the Chairman is to be nominated by the Government. Thus, the admission and administration are conducted in the manner prescribed by the Government, which explicitly exposes the pervasive dominance and control of the Government over the Society. The most vital aspect is with regard to the powers of the Council as stated in clause-21 of the Rules, which prescribes that the Council shall have the powers and authority to do things which are conducive to and expedient to the fulfilment of the objectives of the Society in general among other affairs subject to the general controls and directions of the Government of Tamil Nadu (emphasis supplied). Rule-28 makes it clear that dissolution and adjustment of affairs could be done only with the approval of the Government by a Special Resolution. These aspects would efface a sticking doubt, if any, in one's mind regarding the control of the Government involved.
If we trace the history of the PMC, the same was created by the issuance of G.O. Ms. No.871, Transport Department, dated 28.08.1989. The Ramalingam Tuberculosis Sanatorium was taken over by the Government to house the Medical College and Hospital. When the Government itself caused budgetary allocation for about Rs.20 Crores and, even as on date, top ranking Government Officials remain to be the Governing Council of the Society which runs the PMC, is it not a travesty to say that PMC is purely a private college and that the Government have no iota of control over the affairs thereof? Further, when IRT is shown to be 'under the control of Transport Department of the Government of Tamil Nadu', the Government cannot come forward with an obscure version disowning the status of the State Transport Corporations and denying its control over them.
As pointed out earlier, Doctors working in other Government Hospitals, who have expertise on scarce disciplines, being sent to PMC on deputation basis. I.D. Cards issued to the staff members show PMC to be a public Sector Undertaking under the control of the Government of Tamil Nadu. Further, the staff members were directed not to perform foreign tours without obtaining prior sanction of the Government. Thus, once it is established that the Government has/having control over the PMC and IRT, then, it is automatic that the Doctors serving therein should be considered for selection under Service quota for PG Diploma/Degree courses. We agree with the stand of the Government/DME/Selection Committee that PMC is not a pure Government Medical College, hence, its staff members cannot be treated on par with those of other Government owned institutes in the matter of service rules and regulations, however, it can never be said that the Government has no control over it and thereby what is legitimately entitled to the service candidates, viz., quota in admission to Higher Speciality Courses, cannot be deprived of. We are also told that as far as PMC is concerned, no private share is involved and, all along, the government has been exercising its pervasive control over the Institution. When the society and the college & Hospital came into existence after proper announcement made by the Government in the Floor of the Assembly and the Government having been the patron for all the initiatives and for the complete formation of the Institution, to stray from the original stand and to state that the Government is in no way concerned with the PMC or IRT is a hard pill to swallow. Thus, it is crystal clear that the Institution is financially, functionally and administratively dominated by the control of the Government and such control is pervasive as could be seen from the various instances highlighted above. The tests propounded by the Apex Court in Pradeep Kumar Biswas and Ajay Hasia have been well satisfied in the present case.
21. Accordingly, WP No.4681 of 1997 is allowed. Direction is issued to the respondents to treat the members of the petitioner/association as service candidates for the purpose of selection and admission to PG Diploma/Degree/MDS courses. Writ Appeal Nos.271 of 1996, 924, 1009 and 1026 of 2006 stand dismissed. No costs. Connected Miscellaneous Petitions are closed.
30. Continuing further, the Learned Counsel for the Petitioner cites the order of this Court dated 21.03.2013 in W.P.Nos.5970 and 5971 of 2005 (S. Perumal and three others V. The Director, Institute of Road Transport, Taramani, Chennai 600 113 and another in W.P.No.5970 of 2005 and A.Chandrasekaran and three others V.The Director, Institute of Road Transport, Taramani, Chennai 600 113 in W.P.No.5971 of 2005), wherein, this Court in paragraphs 5 & 6 has observed and held thus;
5. The argument of the learned counsel for the respondents that the petitioners are not eligible for 5% personal pay cannot be espoused inasmuch as similar contentions raised were already rejected not only by the learned single judge in the order dated 16.6.2004 in W.P.No.3017 of 1993 but also by the learned Division Bench in the order dated 04.07.2006 in W.A.No.3836 of 2004. When this Court has already held that prescription of minimum educational qualification is contrary to the Government rules and the recruitment has to be made by the respondents as per the Government rules issued from time to time and particularly, when the Government has prescribed the minimum educational qualification of S.S.L.C. For the post of Junior Assistant, contrary to the said qualification prescribing the qualification of degree for the post of junior Assistant as per the resolution of the institute is contrary to the rules issued by the Government. On that basis, when it was found against the respondents that the entire aspect of the respondents prescribing the qualification of degree for the post of Junior Assistant is contrary to the G.O.Ms.No.479, Department of Education, Science and Technology, dated 26.04.1984 and also against the G.O. attached to the Tamil Nadu State and Subordinate Service Rules, this Court is bound by the said order, as the petitioners were appointed in the year 1987 their service conditions are governed by the rule existed as on that date. Therefore, the petitioners are also eligible to get the benefit of equal pay for equal work on par with similarly placed persons.
6. With the above observation, W.P.Nos.5970 and 5971 of 2005 stand allowed. No order as to costs. Connected pending WPMP.Nos.6554 and 6555 of 2005 are closed. In effect, the submission of the Learned Counsel for the Petitioner is that IRTT is a Government Institution and the Government orders are applicable to it.
31. Respondents' Submissions:
Per contra, it is the submission of the Learned Counsel for the Respondents that the IRTT is not a Government College and the Government orders are not directly applicable to it and only when approved by the Governing Council, have primacy and also that, the Respondents' college all salary expenses are borne by themselves and therefore, it is not a Government organisation. Further, the Respondents' college is a self financing non-minority Institution. In short, the contention of the Learned Counsel for the Respondents is that IRTT is not a Government Aided Institution.
32. The Learned Counsel for the Respondents informs this Court that the SLP (Civil) No.9172 of 2007 (Dean, Perunthurai Medical College Vs. S.Gopu & Ors.) which was dismissed for non prosecution on 27.02.2013 and subsequently, the office of the Advocate on record filed restoration application before the Registry to restore the said SLP and now, that the restoration application was numbered and prepared to be listed and these facts/details were ascertained from the advocate as on record through his letter dated 21.02.2014 addressed to the Secretary, Transport Department, Government of Tamil Nadu, Chennai.
33. Proceeding further, the Learned Counsel for the Respondents contends that the IRTT is a society registered under the Societies Registration Act, and it does not get any aid from any Government, UGC or AICTE for running the Engineering College. Furthermore, the Capital expenditure was borne by the State Transport undertakings and that, the institute was started in the year 1984 under the AEGIS of the Respondents' society.
34. Reply Contentions;
The Learned Counsel for the Petitioner by means of reply refers to the G.O.Ms.No.479, Department of Education, Science and Technology, dated 26.04.1984 (dealing with starting of an Automobile Research Oriented Engineering College, at Erode by Transport Corporations), whereby in serial No. 1 to 14, it is observed as follows;
1. The non-recurring and recurring expenditure in establishing and running of the college shall be met by the Institute of Road Transport, Madras which is a registered body under Societies Registration Act.
2. There shall be no financial commitment to Government both under recurring and non-recurring items.
3. The Institute of Road Transport should create an Endowment of Rs.30 lakhs in cash in the name of the Trust duly registered under the Societies Registration Act, from out of the amount of Rs.50 lakhs already deposited by the Transport Corporations in the Transport Development Finance Corporation through Institute of Road Transport. The Endowment can be created either in one lumpsum or in instalments as indicated below:-
First Year (before opening of the college Rs.12 lakhs Second year Rs. 6 lakhs Third year Rs. 6 lakhs Fourth year Rs. 6 lakhs ------------- Total Rs.30 lakhs
-------------
The interest accured from the Endowment should be utilised for establishing and running of the college.
4. The Institute of Road Transport should provide a minimum of 150 acres of land to establish the collee.
5. The College shall be affiliated to the Bharathiar University Coimbatore.
6. The following Degree courses shall be started with the intake of students indicated against each.
Name of the course No. of students a) Automobile Engineering Twenty b) Transportation Management Twenty c) Road Technology and Traffic Engineering Twenty d)Rural Transport and Communication Twenty
7. Starting of new courses and increase of intake in the existing courses shall be allowed by the Government after assessing the progress of the college.
8. As regards the proposal to reserve certain percentage of seats in favour of the children of the employees of the Transport corporations, the Director of Institute of Road Transport is requested to send detailed proposals separately to Government fully justifying the need for such reservation in public sector undertakings, the mode of selection and admission to such reserved seats, the percentage to be reserved etc. for issue of necessary orders separately.
9. Selection to the remaining seats will be made by the Director of Technical Education every year as per the existing rules.,
10. The candidates if any permitted to be admitted under any special reservation of seats should also fulfil the minimum educational qualifications as prescribed by Government from time to time.
11. The staff recruitment should confirm to the rules and orders issued by Government for Government aided Engineering Colleges.
12. The workshops and laboratories are to be equipped as per the required standards.
13. The syllabus should be got approved by the Bharathiar University before commencement of the courses.
14. The college so established should be under the control of the Director of Technical Education for purpose of periodical review and inspection.
35. That apart, the Learned Counsel for the Petitioner refers to the letter No.8765/B1/2003 1 dated 30.04.2003 of the Transport and Department, Chennai 9, issued by the Secretary to Government which refers to the steps to be taken for commencement of Post Graduate Structural Engineering Course at Engineering College, IRTT, Erode.
36. The Learned Counsel for the Petitioner makes a reference to the letter dated 23.07.2003 in reference IRTT/PG/Civil/2003 of the 2nd Respondent Principal addressed to Adviser (PG & R), AICTE, New Delhi in and by which, it is inter alia mentioned as follows;
As our institute is being supported by Government of Tami Nadu and we are following the Government of Tamil Nadu procedure for the recruitment of staff members, we have now called the candidates through employment exchange and we are also under the process of giving advertisement in news papers to recruit faculty for higher posts. This will fulfill the additional faculty members required in the Civil Engineering Department shortly. We are actively following this matter.
37. The principal of the 2nd Respondent addressed the communication in reference No. 940/IRTT/AD4/AU94/AFF/2004, dated 08.06.2004 to the Registrar, Anna University, Chennai 25, wherein, he prayed for another two months time to ratify the deficiency noted by the Inspection committee.
38. The Learned Counsel for the Petitioner refers to the letter of the 2nd Respondent Ref: /IRTT/AD4/NBA 96/2004, Dated 09.08.2004 addressed to Member Secretary NBA, AICTE, New Delhi, whereby and whereunder, it is mentioned as follows;
Our Institute, The Institute of Road and Transport Technology is run by all State Transport Corporations under the control of Transport Department of Government of Tamilnadu. Due to administrative reasons it will be convenient for us, if the Accreditation Committee will visit out Institute in the month of October 2004 instead of in the month of August 2004 for the accreditation of the above course.
39. Discussions:
A cursory perusal of the contents of representation of the Petitioner dated 24.01.1992 addressed to the 2nd Respondent indicates that he joined as Physcial Director in the scale of pay of Rs.550-25-750-30-900 on 16.10.1986 with the basic pay of Rs.700/- and he had now completed 26 years of service in the same position. Further, after the implementation of AICTE scales of pay, his scale of pay (interim) was fixed as Rs.1740 2000 from 01.01.1986. Moreover, in the said representation, the Petitioner stated that as per G.O.Ms.No.393, dated 16.04.1985 cited in reference No.1, Physical Directors appointed on or after 01.04.1980 should possess the following qualifications;
a. A Master's Degree in Physical Education (High Second Class) b. the qualifications prescribed by the University concerned on or after 01.04.1980.
40. Also, he had categorically stated that the qualifications prescribed by the Bharathiyar University for Physical Directors is Master's Degree in Physical Eduction (High Second Class) and also that, he is possessing the above qualification on the date of joining itself and as per G.O.Ms.No.1352, dated 25.09.1989 and the D.T.E's letters bearing No.1278/A3/90-1, dated 18.04.1990 and 05.04.1991, the Physical Director's having these qualifications may be fixed in the AITCE scale of pay Rs.2200-4000 with effect from 01.01.1986 or the date of appointment whichever is later and therefore, made a request to fix the salary in the scale of pay of Rs.2200-4000 from his date of joining and pay the arrears amount due to him. However, the said representation dated 24.01.1992 was rejected by the 2nd Respondent on 26.09.2000 among other things observed that this institute did not receive any funds from the Government for setting up the College nor does it receive any funds for running it or for paying salary for the teaching staff and the activities of institute are managed by the committee and under the overall supervision of a Registered Society viz. Institute of Road Transport and as such, the Rules formulated by the Education Department or the Director of Technical Eduction, for the Government and Government Aided Institutions are not applicable to this Institution. Furthermore, the Institute is under the overall control of the Governing Council of the Institute of Road Transport and the Rules and Regulations stipulated by the Governing Council are alone applicable to this Institute.
41. It is to be noted that in Article 12 of the Constitution of India, the term 'State' is not defined, at best, it is an inclusive definition in the considered opinion of this Court. Indeed, it includes all other authorities within the territory of India or under the control of the Government of India. It does not say that such other authority ought to be under the control of the Government of India. In the decision of the Hon'ble Supreme Court M/s. Zee Tele Flims Ltd and another V. Union of India and others, AIR 2005 SC at page 2677, it is observed and held that 'The Board of control for Cricket in India is not financially, functionally or administratively dominated by the Government nor it is under the control of the Government'. Further, the word 'Or' is disjunctive in character and the same is not conjunctive as per the aforesaid decision.
42. Admittedly, the definition of 'State' is not narrow. It includes all such entities that are constituted by the State as opined by this Court. For the purpose of Article 12 of the Constitution, one is to see through the corporate veil to ascertain where behind that veil is the face of an Instrumentality or Agency of the State as per decision of the Hon'ble Supreme Court Central Inland Water Transport Corporation Ltd. V. Brojo Nath Ganguly, AIR 1986 SC at page 1571 (1601).
43. Merely because 'Society' answers the definition of 'State' in terms of Article 12 of the Constitution of India, it would not make State Government responsible to bear and pay salaries and allowances of its employees by extending the financial assistance in the form of Grant-in-Aid forever as per decision of the Hon'ble Supreme Court State of Assam V. Barak Upatyaka D.U.Karmachari Sanstha, AIR 2009 SC 2249.
44. In the decision of the Hon'ble Supreme Court Mrs.Satimbla Sharma V. St. Paul's Senior Secondary School, AIR 2011 SC 2926, it is observed and held that private unaided minority schools are not the State, hence Government has no administrative control over such schools because of their autonomy under Article 30 (1) of the Constitution of India.
45. Further, where financial assistance is not so extensive, it may not by itself, without anything more, render the corporation an instrumentality or agency of Government, for there are many private institutions which are in receipt of financial assistance from the State and merely on that account they cannot be termed as State agencies. Similarly, a mere finding of some control by the State would not be determinative of the question 'since a State has considerable measure of control under its police power over all types of business operations'.
46. The terms 'Other Authorities' mentioned in Article 12 of the Constitution of India is not to be treated as ejusdem generis. The term 'Authority' in Concise Oxford English Dictionary, 10th Edition, is defined as follows;
1.The power or right to give orders and enforce obeduence.
2.A person or organisation exerting control in a particular political or administrative sphere.
3.The power to influence others based on recognised knowledge or expertise.
47. At this stage, this Court in furtherance of substantial cause of justice cites the following decisions;
i) In the decision of the Hon'ble Supreme Court Praga Tools Corporation, V. C.V.Imanual and others, AIR 1969 Supreme Court 1306 and at special page 1307 in paragraph 1, it is observed and held as follows;
1. The Praga Tools Corporation (hereinafter referred to as the Company) is a company incorporated under the Indian Companies Act, 1913. At the material time however, the Union Government and the Government of Andhra Pradesh between them held 56 per cent and 32 per cent of its shares respectively and the balance of 12 per cent shares were held by private individuals. Being the largest shareholder, the Union Government had the power to nominate the company's directors. Even so, being registered under the Companies Act and governed by the provisions of that Act, the company is a separate legal entity and cannot be said to be either a Government corporation or an industry run by or under the authority of the Union Government.
ii) In the decision of the Hon'ble Supreme Court Thote Bhaskara Rao V. The A.P.Public Service Commission and others, AIR 1988 Supreme Court 830 and at special page 831 in paragraph 4, it is observed and laid down as follows;
4. The Rules have laid down three modes for appointment, namely, by direct recruitment, by promotion and by transfer. Rule 12 requires inter alia as an essential qualification for a candidate for appointment as a District Munsif that he should be in actual practice and should have been so engaged for not less than 3 years in a court of civil or criminal jurisdiction. Since the appellant was not in actual law practice, reliance has been placed on his behalf on the Proviso to the aforementioned Rule, which is quoted below:
"Provided that in the case of a person who is already in Government service and who applied for appointment to the post of District Munsif by direct recruitment, he must have actually practised for a period of not less than 3 years immediately prior to the date of his entering the Government service."
It is contended that as the appellant had practised for a requisite period immediately prior to the date of his entering the service of Hindustan shipyard, he must be held to be qualified for appointment. The appellant's claim is being refuted by the respondents on the ground that he was not in Government service. The stand of the respondents appears to be well founded. The Hindustan Shipyard, although a fully owned undertaking of the Central Government, cannot be equated with the Government or State except for the purposes of Part-III of the Constitution. The undertaking has a separate legal entity. The expression "State" does not by reason of Article 12 of the Constitution include the undertaking except for the limited purpose which is not attracted in the present case.
iii) In the decision of the Hon'ble Supreme Court Tekraj Vasandi alias K.L.Basandhi V. Union of India and others, AIR 1988 Supreme Court 469 and at special page 481, in paragraph 20, it is observed as follows;
20. We have several cases of societies registered under Societies Registration Act which have been treated as 'State' but in each of those cases it would appear on analysis that either governmental business had been undertaken by the Society or what was expected to be the public obligation of the 'State' had been undertaken to be performed as a part of the Society's function. In a Welfare State, as has been pointed out on more than one occasion by this Court, Governmental control is very pervasive and in fact touches all aspects of social existence. ln the absence of a fair application of the tests to be made, there is possibility of turning every non-governmental society into an agency or instrumentality of the State. That obviously would not serve the purpose and may be far from reality. A broad picture of the matter has to be taken and a discerning mind has to be applied keeping the realities and human experiences in view so as to reach a reasonable conclusion. Having given our anxious consideration to the facts of this case, we are not in a position to hold that ICPS is either an agency or instrumentality of the State so as to come within the purview of 'other authorities' in Article 12 of the Constitution. We must say that ICPS is a case of its type- typical in many ways and the normal tests may perhaps not properly apply to test its character.
iv) In the decision of the Hon'ble Supreme Court Ajay Hasia etc, V. Khalid Mujib Sehravardi and others etc., AIR 1981 Supreme Court 487, it is observed and held as follows;
Where a Corporation is an instrumentality or agency of the government, it must be held to be an 'authority' within the meaning of Art.12 and hence subject to the same basic obligation to obey the Fundamental Rights as the government.
It is immaterial for determining whether a Corporation is an authority whether the Corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The Corporation may be a statutory corporation created by a statute or it may be a government company or a company formed under the Companies Act or it may be a scoeity registeree under the Socieites Registration Act or any other similar sttute. Whatever be its genetical origin, it would be an authority' within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression authority in Article 12. A juristic entity which may be State for the purpose of Parts III and IV would not be so for the purpose of Part XIV or any other provision of the Constitution.
v) In the decision of the Hon'ble Supreme Court Union of India and others V. R.C.Jain and others, AIR 1981 Supreme Court 951 and at special page 952, it is held as follows;
An authority, in order to be a local authority, must be of like nature and character as a Municipal Committee, District Board or Body of Port Commissioners, possessing, therefore, many, if not all, of the distinctive attributes and characteristics of a Municipal Committee, District Board, or Body of Port Commissioners, but, possessing one essential feature, namely, that it is legally entitled to or entrusted by the Government with, the control and management of a municipal or local fund. The authorities must have separate legal existence as Corporate bodies. They must not be mere Governmental agencies but must be legally independent entities. Next, they must function in a defined area and must ordinarily, wholly or partly, directly or indirectly, be elected by the inhabitants of the area. Next, they must enjoy a certain degree of autonomy, with freedom to decide for themselves questions of policy affecting the area administered by them. The autonomy may not be complete and the degree of the dependence may vary considerably but, an appreciable measure of autonomy there must be. Next, they must be entrusted by Statute with such Governmental functions and duties as are usually entrusted to municipal bodies. Broadly, they may be entrusted with the performance of civic duties and functions which would otherwise be Governmental duties and functions. Finally, they must have the power to raise funds for the furtherance of their activities and the fulfillment of their projects by levying taxes, rates, charges, or fees. This may be in addition to moneys provided by Government or obtained by borrowing or otherwise. What is essential is that control or management of the fund must vest in the authority.
vi) In the decision of the Hon'ble Supreme Court G.Bassi Reddy etc. etc., V. International Crops Research Instt. And another, AIR 2003 Supreme Court 1764 and at special page 1770 and 1771 in paragraphs 25 to 29, it is observed and held as follows;
25. A writ under Article 226 lies only when the petitioner establishes that his or her fundamental right or some other legal right has been infringed [Calcutta Gas Co. v.State of W.B., AIR 1962 SC 1044, 1047-1048]. The claim as made by the appellant in his writ petition is founded on Articles 14 and 16. The claim would not be maintainable against ICRISAT unless ICRISAT were a 'State' or authority within the meaning of Article 12. The tests for determining whether an organization is either, has been recently considered by a Constitution Bench of this Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology & ors. (2002) 5 SCC 111 at p. 134 in which we said:
" The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State".
26. The facts which have been narrated earlier clearly show that ICRISAT does not fulfil any of these tests. It was not set up by the Government and it gives its services voluntarily to a large number of countries besides India. It is not controlled by not is it accountable to the Government. The Indian Government's financial contribution to ICRISAT is minimal. Its participation in ICRISAT's administration is limited to 3 out of 15 members. It cannot therefore be said that ICRISAT is a State or other authority as defined in Article 12 of the Constitution.
27. It is true that a writ under Article 226 also lies against a 'person' for "any other purpose". The power of the High Court to issue such a writ to "any person" can only mean the power to issue such a writ to any person to whom, according to well- established principles, a writ lay. That a writ may issue to an appropriate person for the enforcement of any of the rights conferred by Part III is clear enough from the language used. But the words "and for any other purpose" must mean "for any other purpose for which any of the writs mentioned would, according to well established principles issue.
28. A writ under Article 226 can lie against a "person" if it is a statutory body or performs a public function or discharges a public or statutory duty [Praga Tools Corporation v. C.A. Imanual, (1969) 1 SCC 585; Andi Mukta Sadguru Trust v. V.R. Rudani, (1989) 2 SCC 691, 698; VST Ind. Ltd. v. VST Ind. Workers' Union & Another, (2001) 1 SCC 298]. ICRISAT has not been set up by a statute nor are its activities statutorily controlled. Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. The primary activity of ICRISAT is to conduct research and training programmes in the sphere of agriculture purely on a voluntary basis. A service voluntarily undertaken cannot be said to be a public duty. Besides ICRISAT has a role which extends beyond the territorial boundaries of India and its activities are designed to benefit people from all over the world. While the Indian public may be the beneficiary of the activities of the Institute, it certainly cannot be said that the ICRISAT owes a duty to the Indian public to provide research and training facilities. In Praga Tools Corporation V. C.V. Imanual AIR 1969 SC 1306, this Court construed Article 226 to hold that the High Court could issue a writ of mandamus "to secure the performance of the duty or statutory duty" in the performance of which the one who applies for it has a sufficient legal interest". The Court also held that:
".............. an application for mandamus will not lie for an order of reinstatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute.[See Sohan Lal V. Union of India, 1957 SCR 738]
29. We are therefore of the view that the High Court was right in its conclusion that the writ petition of the appellant was not maintainable against ICRISAT.
vii) In the decision of the Hon'ble Supreme Court in M/s.Zee Tele Films Ltd. And another V. Union of India and others, AIR 2005 Supreme Court 2677, wherein it is held as follows;
The Board of Control for Cricket in India is not financially, functionally or administratively dominated by the Govt. nor it is under the control of the Govt. The little control that Govt. may be said to have on the Board is not pervasive in nature. Such limited control is purely regulatory. Assuming that some of the functions do partake nature of public duties or State actions, they being in a very limited area of the activities of the Board would not fall within the parameters laid down by Supreme Court in (2002) 5 SCC 111 and that by itself would not suffice for bringing the board within the net of 'other authorities' for purpose of Art.12.
viii) In the decision of the Hon'ble Supreme Court Dr.S.L.Agarwal V. The General Manager, Hindustan Steel Ltd., AIR 1970 Supreme Court 1150, it is observed and laid down as follows;
Hindustan Steel Limited which is a corporation is not a department of the Government nor are the servants of it holders of civil posts under the State. It has its independent existence and by law relating to Corporations it is distinct even from its members. Therefore, its employees are not entitled to the protection of Article 311.
ix) In the decision of the Hon'ble Supreme Court Executive Committee of Vaish Degree College, Shamli and others V. Lakshmi Narain and others, AIR 1976 Supreme Court 888, it is observed and held as follows;
Before an institution can be a statutory body it must be created by or under the statute and owe its existence to a statute. This must be the primary thing which has got to be established. Here a distinction must be made between an institution which is not created by or under a statute but is governed by certain statutory provisions for the proper maintenance and administration of the institution. There have been a number of institutions which though not created by or under any statute have adopted certain statutory provisions, but that by itself is not sufficient to clothe the institution with a statutory character. The question in such cases to be asked is, if there is no statute would the institution have any legal existence. If the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body.
The Executive Committee of a Degree College which is registered under the Registration of Co-operative Societies Act and is affiliated to the Agra University (and subsequently to Meerut University) is not a statutory body merely because it is affiliated to the University or is regulated by the provisions of the University Act or the statutes made thereunder. By co-opting Principal of college and one representative of teachers as members the Managing Committee does not lose its independent status but continues to remain a non-statutory and autonomous body.
x) In the decision of the Hon'ble Supreme Court Sukhdev Singh V. Bhagatram, AIR 1975 Supreme Court 1331, wherein in paragraphs 1 to 5, it is observed as follows;
1. There are two questions for consideration in these appeals. First, whether an order for removal from service contrary to regulations framed under the Oil and Natural Gas Commission Act, 1959; the Industrial Finance Corporation Act, 1948; and the Life Insurance Corporation Act, 1956 would enable the employees to a declaration against the statutory corporation of continuance in service or would only give rise to a claim for damages. Second whether an employee of a statutory corporation is entitled to claim protection of Articles 14 and 16 against the Corporation. In short the question is whether these statutory corporations are authorities within the meaning of Article 12.
2. The statutes for consideration are the Oil and Natural Gas Commission Act, 1956; the Industrial Finance Corporation Act, 1948; and the Life Insurance Corporation Act, 1956. The question which really falls for decision is whether regulations framed under these statutes have the force of law.
3. The Oil and Natural Gas Commission Act, 1959 hereinafter referred to as the 1959 Act established the Commission as a body corporate having perpetual succession and a common seal. The composition of the Commission is the Chairman, and not less than two, and not more than eight, other members appointed by the Central Government. One of the members shall be a whole-time Finance Member in charge of the financial matters relating to the Commission. The Central Government may, if it thinks fit, appoint one of the members as Vice Chairman of the Commission. under Section 12 of the 1959 Act the Commission may, for the purpose of performing its functions or exercising its powers, appoint such number of employees as it may consider necessary. The functions and the terms and conditions of service of such employees shall be such as may be provided by regulations made under the 1959 Act. There was an existing organisation set up in, pursuance of a resolution of the Government of India No. 22/29/55-O & G dated 14th August, 1956. Every person employed by the said existing organisation before the establishment of the Commission became an employee of the Corporation in accordance with the provisions contained in Section 13 of the 1959 Act.
4. Sections 31 and 32 of the 1959 Act are important. Section 31 states that the Central Government may, by notification in the Official Gazette, make rules to give effect to the provisions of the Act. The rules provide inter alia for the term of office of, and the manner of filling casual vacancies among the members, and their conditions of service; the disqualifications for membership of the Commission and the procedure to be followed in removing a member who is or becomes subject to any disqualification; the procedure to be followed in the discharge of functions by members; the conditions subject to which and the mode in which contracts may be entered into by or on behalf of the Commission and some other matters. Every rule made under Section 31 of the 1959 Act shall be laid as soon as may be before each House of Parliament as mentioned in the section. Both Houses may agree to or annul the rule or modify it.
5. under Section 32 of the 1959 Act the Commission may, with the previous approval of the Central Government, by notification in the Official Gazette, make regulations not inconsistent with the Act and the rules made thereunder, for enabling it to discharge its functions under the Act. The regulations provide inter alia for the terms and conditions of appointment and service and the scales of pay of employees of the Commission: the time and place of meetings of the Commission, the procedure to be followed in regard to the transaction of business at such meetings; the maintenance of minutes of meetings of the Commission and the transmission of copies thereof to the Central Government; the persons by whom, and the manner in which payments, deposits and investments may be made on behalf of the Commission; the custody of moneys required and the maintenance of accounts. The Central Government may amend, very or rescind any regulation which it has approved, and thereupon the regulation shall have effect accordingly but without prejudice to the exercise of the powers of the Commission under Sub-section (1) of Section 32.
xi) In the decision of the Pritam Singh Gill V.State of Punjab and others, AIR 1982 Punjab and Haryana 228 (Full Bench),and at special page 229, it is observed and held thus;
The punjab State Co-operative Land Mortgage Bank is not an instrumentality or agency of the State. Consequently, it cannot be deemed to be an authority within the meaning of Art.12 and as such, is not amenable to a writ of certiorari under Article 226. In this connection, it cannot be urged that it is such an instrumentality on the ground that the 4th test of deep and pervasive state control laid down in AIR 1981 SC 487 for determining whether a corporation or society is an instrumentality of the State is satisfied in view of provisions of Punjab Co-operative Societies Act read with Punjab Co-operative Land Mortgage Banks Act.
Section 26 of the Co-operative Societies Act generally or sub-section (4) thereof, in particular, by themselves cannot in the context of the other factors be said to vest a deep and all pervasive control of the State on the Mortgage Bank so as to render it an instrumentality of the State Whilst conducting ordinary, fiscal, banking and business activities. In view of S.26(1), it is mandatory that the directors of the Bank would be elected in the manner prescribed and further have to be share-holders. Moreover, subsection (2) given only limited power to the Government to nominate at the highest, three members to the Board, on the express condition where the Government has subscribed to the share capital of a Co-operative Society or has guaranteed the repayment of the principal and the payment of interest on debentures issued for loans raised by a Co-operative Society. Now it would be plain that if the condition of subscription to the share capital or guarantee for payment is not satisfied, the State Government has not the least right to add to the elected members of the Board. Assuming, however, that in the case of a MortgageBank, the Government does subscribe to the share capital or guarantee the repayment of the principal and the interest of the debentures, then at the highest, it can nominate three persons only to the Board. It cannot possibly be said that the discretionary right of naming three persons on a Board of 18, gives an all pervasive total control to the State. Plainly, the nominees of the Government even where it does choose to nominate would be far out-numbered by the elected members. To label this limited right of nomination, as indicative of the Mortgage Bank, being an instrumentality of the State, by itself, is totally farcical. Under sub-sectikon (4) also, the pre-condition for its inter-play is only wherein a Co-operative Society in which shares have been subscribed for liability by way of guarantee for borrowing exceeding fifty percent of the capital of the society, which has been undertaken by the Government itself. Unless this condition is satisfied, the rest of the provisions of sub-section (4) would not be attracted. However, even here all that is prescribed is that in such a society, if there is a difference of opinion, in respect of any matters arising between the nominated members of the Committee and the other members thereof, the matter shall be referred to the Government. It bears repetition that the three nominated members invariably are in a minority, vis-a-vis the elected members of the Board. In the peculiar situation of sub-section (4), the added safeguard which is provided is that where in a particular case all the three nominated members differ on a specific matter from the others, then the same would not be resolved by majority, but would become the subject-matter of reference to the government for its decision. It is not in each and every matter that the nominated members must be presumed to differ from the elected ones. Sub-section (4), therefore, prescribes merely of an exceptional situation. Even here it does not lay down that in such a situation, the view of the three nominated members even though in a patent minority would override those of the elected ones. In the event of a difference of opinion between the elected members on one side and the three nominated members collectively on the other, the matter is merely passed on to the Government for decision. By judicial precedent , it is now well settled that the Government in such a situation does not and cannot act arbitrarily like private individuals and in such a reference, would be bound to decide the issue on merits after consideraing the viewpoints of the elected members and those who are nominated. It is not that the view of the nominated members must inevitably prevail and the balance is evenly held by the Government on merits to decide the issue of difference in favour of either the elected members or those of the nominated members. There can be no warrant for the assumption that in such a situation the nominated members can impose their will on the remaining members of the Board. Therefore, a mere method or device for resolving a difference of opinion where the nominated members are unanimous against those who are elected, cannot be held as indicative of total and all pervasive control. Xii) In the decision of Sri Konaseema Co-operative Central Bank Ltd., Amalapuram and another V. N.Seetharama Raju, AIR 1990 Andhra Pradesh 171, and at special page 188 in paragraph 31 to 33, it is observed and held as follows;
31. Be that as it may, we find from the bye-laws of the appellant-Bank that its dealings are confined to its members and its membership consists of member-societies, Government, or a few nominal members. In response to our specific and repeated queries, it has been stated by counsel for both the parties that the operations of the appellant-Bank are actually confined to its members only. The appellant would not advance loan to a non-member-whoever he is. The appellant-Bank's main object is to raise funds to finance its members. It has its own funds. It is entitled to raise loans from Scheduled Banks and other agencies. Its members also make deposits with it. It is this amount, coupled with the rural credit provided by the central agencies, that is provided to its members. The main function of this Bank we are told is to provide credit out of its funds to Agricultural Credit societies which, in turn, provide the same to their members. The State provides credits to agriculturists mainly with a view to save them from the exploitation and harassment by money-lenders, and also to promote agricultural production and, in that sense, it is a function of public importance. But so does every other financial institution and Bank which provides credits to Industry, Commerce, Communications, and other bodies providing various services to the society. More important, according to the fifth test evolved by the Supreme Court, not only the functions of a Corporation should be of public importance, but they must also be closely related to governmental functions. Inasmuch as the operation of the appellant- Bank is not confined to State funds, and also because it cannot be termed as an agency created by the State for distributing the rural credit provided by it, it cannot be said that it satisfies this test. As stated above, the appellant-Bank has its own funds, and the credit provided by central agencies is only a part of it. We may in this connection refer to what Bhagwati, J. said in Ramana v. I.A. Authority of India . After pointing out that the distinction between governmental and non-governmental functions is no longer valid in the present day social welfare State, the learned Judge observed (at p. 1641 of AIR):
"The contrast is rather between governmental activities which are private and private activities which are governmental. (Mathew, J. in Sukhdev v. Bhagatram at p. 1355 of ). But the public nature of the function, if impregnated with governmental character or 'tied or entwined with Government' or fortified by some other additional factors, may render the corporation an instrumentality or agency of Government. Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference..."
32. In the circumstances, it is not possible to say that the appellant-Bank/Society satisfies the fifth test enunciated by the Supreme Court.
33. For the above reasons, the appellant-Society cannot be characterized as a 'State' within the meaning of Article 12. Also, in the aforesaid decision at page 194 in paragraph 41, it is observed and held as follows;
41. Applying the above test, the appellant-Society herein cannot be called a public body. It has no duty towards public. Its duty is towards its members only. It has no power to take any action, or pass any order affecting the rights of the members of public. The binding nature of its orders and actions is confined to its members, and to its employees. It is neither a. statutory body nor are its relations with its employees governed by a statute. Its functions are also not akin to governmental functions. Nor is it a case where it can be said that the reality behind the Society is the executive power of the State. Moreover, even if for some distant reason it can be characterised as a public body, even so the contract of service between it and the writ petitioner cannot be treated as belonging to 'public law' field. It is a pure and simple contract of service, and there is no statutory provision regulating, circumscribing, and governing the said relationship excepting Section 47 of the A. P. Shops and Establishments Act, 1988, which imposes certain restrictions in the matter of termination of service of the employees of a co-operative society. This aspect we shall consider presently.
48. At this stage, this Court pertinently points out that whether the 1st Respondent is a State or other Authority is purely a question of fact to be decided based on the following factors;
1.Whether the State provides fund or substantial portion thereof.
2. Its character of discharging some of the functions of the State.
3.Control atleast at the initial stage on such organisation.
4. Whether the state itself was discharging the functions (or some of them) as are now being discharged by the concerned body.
5.Whether the concerned body enjoy some command as is done by the State.
49. As a matter of fact, the concept of instrumentality or agency of the Government, is not to be confined to entities created under or which owes its origin to any particular statute or order but would really depend upon a combination of one or more of relevant factors, depending upon the essentially and overwhelming nature of such factors in identifying the real source of governing power, if need be, piercing the corporate veil of the entity concerned.
50. The expression 'Instrumentality' or 'Agency' of the State is not to be seen in Article 12 of the Constitution of India. However, by means of Judicial interpretation nay, expansion bearing in mind the sweep of Article 12 of the Constitution that they have been included as falling within the purview of Article 12 of the constitution of India subject to satisfying certain tests.
51. A mere perusal of the 1st Respondent /Road Transport's Memorandum of Association and Rules of the Society, March, 1979 especially Rule 2 (e) defines 'Government means the Government of Tamil Nadu'. In this connection, this Court quotes Rule 21 of the 1st Respondent /Road Transport under the caption 'Powers of the Council' which runs as follows;
Subject to the general Controls and directions of the Government of Tamil Nadu, the council shall have the powers and authority to do things which are conducive to and expedient to the fulfilment of the objectives of the Society in general and more particularly.
(a) To manage and supervise the affairs of the Society and its properties and to incur expenditure required for the purpose.
(b) To make rules and regulations for the proper conduct and the functioning of the society.
(c) To invest the funds of the institute in a manner most beneficial to the interests of the Institute.
(d) To select and appoint such officers and staff as are necessary for the efficient management of the Society.
(e) To appoint Committee or Committees as and when necessary and with such powers as the Council may deem fit.
(f) To make and from time to time alter the bye-laws pertaining to the management of the Society and the conduct of the business of the Council or a committee appointed by the Council, provided that the same shall not be inconsistent with the memorandum of rules and regulations of the Society.
(g) To negotiate and enter into agreements and contracts on behalf of the Society and to vary and rescind such contracts.
(h) To delegate any of the powers of the Council to any officer or Committee or its members.
(i) To sue and defend all legal proceedings on behalf of the society.
(j) To lay down the terms and conditiions on which candidates are to be selected for undergoing training and conducting research and development activities.
(k) To hold from time to time such examinations (tests for the candidates undergoing training as may be deemed necessary and to award certificates or diplomas to the successful candidates;
(l) To prepare and execute detailed plans and programme for furtherence of the aims and objectives of the society.
(m) To receive, to have custody and to expend the funds of the society.
(n) To borrow loans for the purpose of the society on the security of the properties and / or assets of the Institute and for that purpose to execute mortgage or to create a charge.
(o) To enter into sale and purchase of Immovable property.
52. As far as the present case is concerned, the Educational Institutions run by the 1st Respondent /Institute of Road Transport were classified as 'unaided non-minority Educational Institution' as per letter dated 05.06.2004 of the Special Commissioner and Secretary to Government of Tamil Nadu Transport Department and further, no Government funds are given for these educational Institutions and this Court taking note of the fact that even though Director of Technical Education got control over all Engineering Colleges in Tamil Nadu including the Respondent College, the said control is exercised by Director of Technical Education only to oversee eligibility conditions of the Students etc., notwithstanding the fact, that the 1st Respondent Institute is following the Government of Tamil Nadu procedure for recruitment of staff members. Certainly, when the objects of the Society were not governmental business and in view of the fact that the scale of pay for the staff members of the 1st Respondent's Institute is fixed at the appropriate level as approved by the Governing Council pursuant to its orders and also being bound by the orders of the Governing Council, this Court comes to an inevitable and inescapable conclusion that the Respondents' College is a self financing non-minority institution run by the institution. Also that, in view of the fact that the college is run by the institution of Road Transport, the institute is neither a Government institution nor a Government Aided Institution. To put it precisely, the Government of Tamil Nadu by means of G.O.(2d) No.7, Transport Department dated 23.06.2003 has categorically stated that 'the Institute of Road and Transport Technology, Erode', is an unaided and self financing institution. Therefore, the employees of the institute do not become 'Holder of civil posts' so as to claim the protection under Article 311 of the Constitution of India. However, this Court opines that the employees of the 1st Respondent's Institute would be entitled to the benefits of Part III (Fundamental Rights) of the Constitution. Also that, the 1st Respondent cannot be held to be either as an agency or instrumentality of the State so as to come within the ambit of other authorities in Article 12 of the Constitution of India. In short, where the control of the 1st Respondent's Institute by the Government of Tamil Nadu is merely regulatory, whether under any statute or otherwise in the considered opinion of this Court, it would not serve to make the said Institute 'State' under Article 12 of the Constitution of India. Added further, just because of the Institute of Road and Transport Technology was started in the year 1984 under the aegis of this Respondent Society and when the capital expenditure was borne by the State Transport undertakings and also to meet the running expenditure an amount of Rs.600/- was collected from over 1 lakhs employees of the State Transport Undertakings and placed as a corpus fund, the interest from its fund was used for running the Engineering College and as a benefit to the employees in contributing to the scheme 50% of the sanctioned seats in the Engineering College was earmarked for the wards of the employees of the said undertakings and out of the total intake of 360 students per year 50% is filled up by Anna University through single window system and the balance 50% filled up by the Institute of Road Transport from among the wards of employees of State Transport undertakings on merit basis and also when the 1st Respondent's Institute does not receive any aid from any Government, UGC or All India Council for Technical Education for running the Engineering College, certainly, it is not an 'Agency' or 'Instrumentality of the State' or even it cannot be considered under the expression 'other authorities' in the considered opinion of this Court.
52. Viewed in that perspective and also when the Respondents' college is not a Government Institution, the claim of the Petitioner by filing the present writ of Mandamus in seeking to refix his pay in accordance with the Scale of pay as fixed by the AICTE time to time for the post of Physical Director with effect from 01.01.1986 and also to pay the arrears of his salary calculated on that basis from 01.01.1986 upto date is clearly unsustainable in the eye of law as held by this Court. Furthermore, the claim of the petitioner in the writ petition relating to his refixation of scale of pay is disputed by the Respondents and therefore, the said claim is a quasi civil dispute as opined by this Court. The governing council of the Respondents college follows its own rules and regulations from time to time in their own convenience and discipline. Merely because a government order is adapted by the Respondents' institute would not come under the category of Government Institution. At this juncture, this Court points out that on the side of the Respondents heavy reliance is placed in regard to judgment of Division Bench of this Court in W.A.No.271 of 1996 batch (while dealing with Post Graduate Admissions in Perundurai Medical College, another college belonging to the Institute of Road Transport) whereby and whereunder it is held that 'although the doctors will be 'service' candidates for purpose of admission its staff members cannot be treated on par with those of other government owned institute in the matter of service Rules and Regulations'.
53. In view of the qualitative and quantitative discussions has mentioned supra and in view of the fact that the 1st Respondent's employees do not become holders of civil posts so as to become entitled to the cover of Article 311 of the Constitution of India, yet, this Court is of the considered view that the said employees are entitled to the benefits of Part III of the Constitution of India as specified in Part-III (Fundamental Rights) of the Constitution of India. Continuing further, this Court, on the basis of the facts and circumstances of the present case, bears in mind a very vital fact that only the rules as approved by the governing council of the Respondents' institution will have primacy and that the scale of pay of the Physical Directors are determined by the same Governing council.
54. It is by now well settled that the existence of a legal right and obligation of a public authority to fullfil the same on the date of petition are the conditions precedent to pray for writ of mandamus being issued. That apart, a writ of mandamus can be issued only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on his part to perform the duty after all, the function of writ is to compel performance of public duty. To put it differently the object of mandamus is to compel performance of a legal duty on the part of some person or body who is entrusted by law with that duty, the court in a proceeding for mandamus will never sit as a 'Court of appeal' to examine facts or to substitute its own wisdom. No wonder, the writ of mandamus is a discretionary remedy and not of right. Also that, a Court of law cannot direct the Respondents to do something which they have no legal duty to do so.
Looking at from any angle, the present writ petition filed by the Petitioner is not maintainable in the eye of law. Consequently, the writ petition fails.
55. In the result, the writ petition is dismissed. It is made clear that dismissal of the writ petition will not preclude the petitioner to seek appropriate remedy (in regard to his claim refixation of scale of pay as fixed by AICTE for the post of Physical Director with effect from 01.01.1986) before the competent forum in the manner known to law and in accordance with law. No costs. Consequently, connected miscellaneous petition is closed.
25.04.2014 Index : Yes/No Internet: Yes/No sms To
1. The Director, Institute of Road Transport, Taramani, Chennai 600 113.
2. The Principal, Institute of Road Transport Technology, Erode, Periyar District.
M.VENUGOPAL.J, sms Pre-delivery order in W.P.No. 19334 of 2004 and WPMP No.875 of 2007 25.04.2014