Virendra Tripathi v. India Literacy Board — 1984 DIGILAW 885 (ALL)

JUDGMENT Brijesh Kumar, J. - This writ petition is directed against an order contained in Annexure-I to the writ petition dated 16-9-84 terminating the services of the petitioner on payment of three months' salary. The petitioner was initially appointed in the year 1966 as Deputy Head, Field Work Department in the Literacy House, Sarojini Nagar, Lucknow. It has been asserted in the writ petition that after the expiry of the period of probation the petitioner was confirmed with effect from 16-8-67. The petitioner was also promoted subsequently as Head of the Department and worked in different capacities. The petitioner was appointed as Head, Curriculum & Material Preparation Section on the recommendation of the Selection Committee with effect from 18-11-80 and was also confirmed on the said post. On the basis of the averments made in para 8 of the writ petition it has been argued that the opposite party No. 1 namely, India Literacy Board (hereinafter to be referred as Board) is State within the meaning of Article 12 of the Constitution of India and it is an Agency/instrumentality of the Government. 2. Before we enter into the merits of the case it is to be examined whether the opposite party No. 1 is `State' Agency/instrumentality of the Government and the writ petition under Article 226 of the Constitution of India would be maintainable against it or not. Memorandum of Association of India Literacy Board has been filed as Annexure-3 to the writ petition. It is a Society registered under the Societies. Registration Act, 1860. Article 5 of the Memorandum of Association lists the members constituting the first Board as on Aug. 14, 1974. The list given in Article 5 shows that out of 16 members of the Board only 2 are official members listed at serial Nos. 7 and 8 namely the Agriculture Production Commissioner, U. P. Government (or his nominee) Lucknow and Education Secretary, U.P. Government (or his nominee). All others are individuals, some of them having retired from high positions, some scientists and Social worker, except Member at Serial No. 16 who was ex officio Member, Secretary of the Board being Director of the Literacy House. Members listed at serial Nos. 14 and 15 were representatives of the staff of the Literacy House. All others are individuals, some of them having retired from high positions, some scientists and Social worker, except Member at Serial No. 16 who was ex officio Member, Secretary of the Board being Director of the Literacy House. Members listed at serial Nos. 14 and 15 were representatives of the staff of the Literacy House. The Board framed its rules and regulations which were adopted by the India Literacy Board in its special meeting held at Literacy House, Lucknow, on Aug. 14, 1976. Article 2 of the said rules and regulations pertains to the membership of the Board. There are five categories of members namely, Life Member, Nominated Members, Official Members, Ex Officio Members and Staff Members. So far life member is concerned Miss Welthy H. Fisher, founder of the institution, was the only life member. Article 4 provides that there shall be 9 nominated members nominated by the Committee constituted in accordance with Article 8. There shall be five official members out of whom three are to be nominated by , Government of India in the Ministry of Education and Social Welfare and two representatives of Government of Uttar Pradesh namely the Agriculture Production Commissioner and the Secretary, Education Department, Government of Uttar Pradesh or their nominee. According to Article 6 the Vice Chancellors of Lucknow University and G. B. Pant University of Agriculture and Technology are the Ex Officio Members of the Board and Article 7 provides for two members from the staff of the Board. From the above provisions it is clear that besides the life member there would be 18 members of the Board out of which only five are to be official members representing the Central and the State Governments. The remaining 13 members are neither nominated nor represent the Central or State Government. Nine nominated members are to be nominated by the Committee of five as constituted under Article 8 of the Regulations which consists of Chairman of the Board, the Vice-Chairman of the Board and a nominee of the Ministry of Education and Social Welfare, Government of India, the chairman, All India Adult Education Association, New Delhi and one person to be elected by the Board from amongst its members other than the Chairman & Vice Chairman. Out of 5 members of the Committee under Article 8 there is only one nominee of the Central Government. Out of 5 members of the Committee under Article 8 there is only one nominee of the Central Government. Nominated members of the Board constitute half the strength of the Board. The Vice-Chancellors of Lucknow University and G. B. Pant University of Agriculture & Technology are two Ex Officio Members who do not represent the State. Similarly two staff members only represent the employees of the Board and the Literacy House. The constitution of the Executive Committee is provided under Article 12 of the Regulations. Besides others the main function of the Executive Committee is to carry out the object of the Board and to give effect to the decision of the Board on policy matters. It has power to manage all properties owned or held by the Board, to appoint, confirm, dismiss or suspend any employee of the Board. The Executive Committee also has only two persons nominated by the Government of India. Ministry of Education & Social Welfare, from amongst the official members nominated by such Government and the Secretary to Government of U. P. Education Department, the rest of the members are not official members or members nominated by the State of U. P. or the Central Government. The remaining members are the Chairman of the Board. Vice-Chairman, three persons to be elected by the Board from amongst the nominated members, and nominee of the Chairman and one staff member and so on. The Chairman is to be nominated by the Committee of five as provided under Article 8 of the Regulations from the provisions of the Memorandum of Association and Regulations as indicated above, it becomes clear that there is only some representation of the State Government and the Central Government on the Board and in the Executive Committee but it cannot be said that there is control of the Central or State Governments muchless deep rooted or all pervading control. The Board or its main functioning body cannot be said to be dominated by the official members as their numbers is too small looking to the total strength of the Board and the Executive Committee. Out of 18 Members of the India Literacy Board only three represent the Central and the State Governments. A perusal of the Memorandum of Association and Regulations also show that otherwise also there is no control of the State or the Central Government over the functioning of the Board. Out of 18 Members of the India Literacy Board only three represent the Central and the State Governments. A perusal of the Memorandum of Association and Regulations also show that otherwise also there is no control of the State or the Central Government over the functioning of the Board. There are no such provisions like framing of rules by the' Board subject to the approval of the Central Government or any power vesting in the Government to expel or remove any of the Members of the Board or to have any control over the properties for their disposal as owned or held by the Board. The constitution of the Board leaves no room for doubt that it is an autonomous body. Much stress has been laid by the counsel for the petitioner on the fact that the Board runs on the total grant given by the Central Government and the State Government in the proportion of 70 per cent and 30 per cent respectively. There is nothing to indicate in the petition that the Board has no other source of income. The facts asserted by the petitioner only show that out of the Governmental grant sanctioned for the Board 70 per cent is to be provided by the Central Government and 30 per cent by the State Government. In any case the fact that the financial assistance is provided by the Government to the Literacy Board will not by itself be conclusive of the fact that the Board is State or Agency/instrumentality of the State. It is onlyone of the factors relevant in arriving at a conclusion whether a body is State or instrumentality/Agency of the Government but in the absence of other ingredients it does not lead to any conclusive or irresistible conclusion for it is a factor to clinch the character of an institution as State, Agency/instrumentality of the State. From the discussion held above it is quite clear that the representation of the Central and State Governments on the Board is nominal looking to the total strength of the Board. As noted earlier too there is no other controlling power vested in the Central or the State Government regarding framing of the bye-laws, rules or regulations or in respect of holding or disposing. of immovable and movable properties or in the like or other matter. 3. As noted earlier too there is no other controlling power vested in the Central or the State Government regarding framing of the bye-laws, rules or regulations or in respect of holding or disposing. of immovable and movable properties or in the like or other matter. 3. The institution in question was established by Miss Welthy H. Fisher, a well known Social Worker which later on started to be managed by the Society registered under the Societies Registration Act. The institution was not sponsored by the Central or the State Government. The counsel for the petitioner contended that as provided under Article 41 of the Constitution of India the State has to make effective provision for education of the citizen and the respondent No. 1 is acting as an Agent or instrumentality of the Union of India or the State Governments to achieve the object of educating the adults. Article 41 of the Constitution reads as follows : - "Article 41- the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance, in cases of employment, old age, sickness and disablement, and in other cases of undeserved want." To us, the plea raised by the petitioner appears to be misconceived. There is nothing to indicate that the Central or the State Government has made any delegation of its functions to the Board in regard to provisions contained under Article 41 of the Constitution. It can also not be said that the function, which is being carried out by the opposite party No. 1, cannot be carried out by any organisation except the State. There are numerous private organizations and institutions making provision for imparting education and vocational education as well. The function, which is being discharged by the opposite party No. 1 is not monopolistic in character. The opening sentence of Article 41 "the State shall, within the limits of its economic capacity and development, make effective provision...." indicates that it shall be endeavour of the State to make provision for securing right to work, to education and to public assistance, in cases of employment, old age, sickness and disablement etc. It does not confer any exclusive right upon the State to carry out these functions nor does it exclude any private body or organisation or philanthropic society to carry out these functions. It does not confer any exclusive right upon the State to carry out these functions nor does it exclude any private body or organisation or philanthropic society to carry out these functions. A private body, society or institution may very well volunteer to work for imparting adult education or to make provision for people of old age or to help them out during sickness and disability etc. Government may provide financial assistance to such an organisation but that cannot mean that such organisation or philanthropic society is converted into State or Agency/instrumentality of the State. To provide for adult education is not the exclusive domain of the State. 4. To support his contention the counsel for the petitioner placed reliance on the case of Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487 . In that case a society registered under the Societies Registration Act was found and held to be instrumentality/Agency of the State and the Central Government and an authority within the meaning of Article 12 of the Constitution. The facts and circumstances which have been taken into consideration in holding the society as instrumentality of the State are quite different in that case. After discussing a number of decisions of the Supreme Court their Lordships have discussed the facts and circumstances relevant for the purpose in para 15 of the judgment at page 497. On examination of the memorandum of association and the rules of the society it was found that the composition of Society is dominated by representatives of Central and State Governments. The money required for running the college was provided by the Central and State Governments and if any other moneys are to be received by the society, it could be done only with the approval of the State and the Central Governments. The society could frame the rules but with the prior approval of the State and Central Governments. The society was to comply with the directions as may be issued by the Central Government. Their Lordships of the Supreme Court further observed that the control of the State and the Central Governments was so deep and pervasive that no immovable property of the society could be disposed of without the approval of the Governments. The State and the Central Governments had power to appoint other members of the society as well as could remove any member of the society. The State and the Central Governments had power to appoint other members of the society as well as could remove any member of the society. It was found that the Central Government had full control on the working of the society and the society concerned is merely a projection of the State and the Central Government. Quoting the words used by Hon'ble Ray, C.J. in Sukhdev Singh's Case, AIR 1975 SC 1331 : (1975 Lab IC 881) their Lordships observed that the voice is that of the State and the Central Governments and the hands are also of the State and Central Governments. From the discussion held in the earlier part of this judgment regarding the provision of the Memorandum of Association and Regulations of opposite party No. 1 and other relevant features it is clear that the present case stands entirely on different footing. Actually there is no provision under the memorandum of association or under any article or the rules and regulations framed by the Board indicating control of the Central or the State Government. The rules framed by the Board provide for some representation of the State and the Central Governments. In our opinion it is nothing beyond mere participation of the State and the Central Governments in the venture of opposite party No. 1. There is no control of the Central and State Governments over the Board muchless deep and pervasive. Since much stress was given on behalf of the petitioner to the fact that entire expenditure was borne by the Central and the State Government, therefore, the opposite party No. 1 partakes the character of Agency/instrumentality of the State. This circumstance is only one of the many factors which are to be taken into consideration to reach a conclusion whether a society is or is not an instrumentality of the State. In this connection it will be useful to again refer to the case of Ajay Hasia (supra). In para 9 their Lordships have taken into account the decision in the case of International Airport Authority's case ( AIR 1979 SC 1628 ). It has been observed that six tests for determining when a corporation can be said to be an instrumentality or agency of the Government may be culled out from the judgment in International Airport Authority's case. It has been observed that six tests for determining when a corporation can be said to be an instrumentality or agency of the Government may be culled out from the judgment in International Airport Authority's case. It has further been observed that the tests which emerged out from the International Airport Authority's case are not conclusive or clinching but they are merely indicative, Test No. 2 pertains to the case where the financial assistance is given by the State and it has been said "where the financial assistance of the State is so much as to meet almost the entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character" so in view of the Hon'ble Supreme Court "financial assistance" affords only some indication and does not go beyond it. In the present case there can be hardly any doubt that opposite party No. 1 is an autonomous body. Their Lordships of the Supreme Court have given a caution which is to be exercised in applying the tests to find out when a corporation can be said to be an instrumentality or Agency of the State and it has been observed in the following words " while stressing the necessity to a wide meaning to be place.d on the expression "other authorities", it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression." (emphasis supplied). In a recent judgment reported in Dr. Y.P. Gupta v. Union of India, AIR 1984 SC 541 : 1984 Lab IC 301 the Indian Council of Agricultural Research has been held to be other authority within the meaning of Article 12 of the Constitution but again the facts of that case are clearly distinguishable from the facts of the present case. Initially the Indian Council of Agricultural Research was a department of the Government itself. Subsequently it was kept attached to the Government department. The Society was sponsored by the Government. The relevant facts which led to the conclusion that the society was an instrumentality of the State are stated in paras 9 and 11 of that judgment. It has been observed that control of the Government of India permeates through all its activities and it is a body to which the Govt. The Society was sponsored by the Government. The relevant facts which led to the conclusion that the society was an instrumentality of the State are stated in paras 9 and 11 of that judgment. It has been observed that control of the Government of India permeates through all its activities and it is a body to which the Govt. of India transferred the Research Institute set up by it make it financially viable. The cess was also levied that is to say the taxing power of the State was invoked and the proceeds were handed over to the Indian Council of Agricultural Research. The Director General of Indian Council of Agricultural Research was concurrently designated as Secretary to the Government of India in D.A.R.E. And yet in another recent case is B.S. Minhas v. Indian Statistical Institute, AIR 1984 SC 363 . The Statistical Institute, a registered society, has been held to be the authority but the facts of that case are also different and distinguishing. The Statistical Institute is governed by the Statistical Institute Act and it was found by the Hon'ble Supreme Court that the composition of the Institute is dominated by the representatives appointed by the Central Government. The money required for running the Institute was provided by the Central Government and if any other money's were to be received by the Institute it could be done only with the approval of the Central Government. The society had to comply with all such directions as may be issued by the Central Government. The Control of the Central Government was found to be deep and pervasive and, therefore, it was held to be an authority. 5. In view of the discussion held above we find that the opposite party No. 1 is neither State within the meaning of Article 12 of the Constitution of India nor an Agency or instrumentality of the State, hence the writ petition under Article 226 of the Constitution of India is not maintainable. It thus fails and is dismissed in limine.