Y. K. Sabharwal, J. ( 1 ) THE petitioner joined National Institute of Health and Family Welfare (For short the Institute ) in the year 1962 as a Lower Division Clerk (L. D. C.) and was promoted to the post of Upper Division Clerk (U. P. C.) in the year 1965. The petitioner was appointed to officiate as an Assistant in 1960. In 1962, petitioner was appointed as an Accountant on ad hoc basis and continued to work on that post till 1988. With effect from 21st December, 1988, the petitioner was appointed as an Accountant on promotion on regular basis. ( 2 ) THE Institute, in the year 1981, took a decision to bifurcate the promotion channel to higher posts. Under the recruitment rules approved in 1981 all L. D. C. s with five years experience and on the basis of seniority were eligible to be promoted to the post of U. D. C. s. The rules of 1981 introduced bifurcation of service for further promotion from the post of U. D. . C. s could now be promoted either as Assistants or as Purchase Assistants. The post of Assistant and Purchase Assistant had, however, same pay. All U. D. C. s had to exercise options to either go into the channel of further promotion as Assistants or as Purchase Assistants. The UDC s having five years regular service in the grade were eligible to be considered for promotion as Assistant or Purchase Assistant. The Assistants with 8 years regular service in the grade were eligible for being considered for promotion to the post of Section Officer. Likewise, Purchase Assistants with 8 years regular service in the grade were eligible for being considered for promotion to the post of Store Officers. The post of Section Officer and Store Officers, The post of Section Officer and Store Officer has same pay scale, namely, Rs. 2,000-3500. The Assistants and Purchase Assistants had also a choice to opt for the accounts service. On exercise of option to go into Accounts Service, the official was not entitled to be promoted either in the channel of promotion arising out of Assistants or to the channel of promotion arising out of Purchase Assistants. The official opting for Accounts service could only be promoted as an Accountant Pay Scale Rs. 500-900 revised to Rs. 1640-2900 ). On exercise of option to go into Accounts Service, the official was not entitled to be promoted either in the channel of promotion arising out of Assistants or to the channel of promotion arising out of Purchase Assistants. The official opting for Accounts service could only be promoted as an Accountant Pay Scale Rs. 500-900 revised to Rs. 1640-2900 ). The Accountant could be considered for promotion only as Accounts Officer in the pay scale of Rs. 2375-3500 and could not be considered for promotion either as a Section Officer or Stores Officer. The Assistants/ Purchase Assistants opting to go into Accounts Service were-eligible for promotion to the post of Accountant with three years regular service in the grade of Assistant/purchase Assistant. The Accountant with five years of service in the grade of Accountant and having undergone some training was eligible to be considered for promotion to the post of Accounts Officer. ( 3 ) ON being called upon the petitioner exercised his option on 2nd November, 1982 and opted for Accounts Service in the Institute and accepted the post of Accountant. The offer of appointment dated 2nd November 1982 issued by the Institute offering to the petitioner ad hoc appointment of the post of Accountant, on the recommendation ofd. P. C. , provides the following two conditions:- 1. He has to undergo some training related to accounts work and also to qualify the examination prescribed for such training. After suc- cessful completion of training and passing of Exam, he will be considered for the regular appointment to the post of Accountant. 2. Since the post of Accountant now constitutes a separate cadre under the recruitment rules, he will not be eligible for promotion to any other post in the Institute except for the post of Accounts Officer. " ( 4 ) THUS, on 2nd November 1982 the petitioner was appointed as an Accountant on ad hoc basis. The petitioner as provided in the terms and conditions of the offer underwent special training in Accounts. The special training for a period of 8 weeks was conducted by. Ministry of Health and Family Welfare and after completion of the said special training the petitioner continued to work as an Accountant in the Institute. ( 5 ) THE petitioner has also placed on record the seniority lists of the post of LJD. The special training for a period of 8 weeks was conducted by. Ministry of Health and Family Welfare and after completion of the said special training the petitioner continued to work as an Accountant in the Institute. ( 5 ) THE petitioner has also placed on record the seniority lists of the post of LJD. C. and U. D. C. Some of the persons who were junior to the petitioner as L. D. C. and U. D. C. have become Store Officers/section Officers in their respective channel on the basis of the option exercised by them. On such person specifically mentioned by the petitioner is P. C. Gupta who was appointed L. D. C. about 8 years after the petitioner was so appointed. The petitioner was appointed U. D. C. in 1965 and P. C. Gupta was appointed as Store Officer on ad hoc basis on 1st November, 1990 and was regularised on that post on 11th June, 1991. The petitioner has given the facts about appointment of P. C. Gupta as Store Keeper not for challenging his appointment but to show the immense hardship and prejudice caused to him by the stand taken by the Institute that on account of amendment of rules, now the Accountants are not eligible to be considered for promotion to the post of Accounts Officer. According to rules amended in 1992 the posts of Accounts Officer are to be filled by transfer on deputation from SAS qualified officers with 10 years service from Audit Accounts Offices and not by promotion of Accountants. ( 6 ) THE petitioner claims that he has already put in about 11 years service in the post of Accountant and has excellent service record and was entitled to be promoted as Accounts Officer but the Institute has advertised the posts of Accounts Officers, (one reserved and one general) to be filled in by Officers on transfer on deputation from SAS qualified officers with 10 years service from Audit Accounts Officer. The grievance of the petitioner is that right from 1986 the Institute has not taken any steps to fill the post of Accounts Officer by promotion as provided in the rules of 1981. According to the petitioenr the posts of Accounts Officer were required to be filled by promotion as per the rules of 1981 before the amendment of the rules in the year 1992. According to the petitioenr the posts of Accounts Officer were required to be filled by promotion as per the rules of 1981 before the amendment of the rules in the year 1992. The petitioner says that the Institute in order to circumvent the rights of the petitioner and to his great prejudice has illegally and wrongly invited applications from the outsiders for being appointed as Accounts Officers though the petitioner had altered his position to his disadvantage about 11 years back and had opted for Accounts service on the clear representation that the posts of Accounts Officers would be filled by selection from amongst accountants. The petitioner contends that the action of the Institute is wholly arbitrary, illegal and unsustainable for the reason that the petitioner was made to exercise his option way back in 1982 when petitioner was informed that he will not be eligible for promotion to any other post in the Institute except for the post of Accounts Officer. The contention is that now after lapse of II years, the Institute cannot be permitted to turn round and say that the petitioner is not eligible for promotion to the post of Accounts Officer. According to the petitioner the amended rules providing for filling up of the posts of Accounts Officers by promotion failing which by deputation from SAS qualiied officer with 10 years service from Audit and Accounts Offices. Counsel for the petitioner also argued for quashing the 1992 rules on the ground that the Institute has not given any justification or reason showing why it was considered necessary to amend the rules. ( 7 ) THE petitioner has sought quashing of the advertisement dated 11th April, 1992 and has prayed that respondents be prohibited from filling the post of Accounts Officer in the Institute on the basis of deputation without first exhausting the channel of promotion by selection. The petitioner prays that direction be issued to the respondents to consider him for appointment to the post of Accounts Officer. ( 8 ) ACCORDING to respondents the recruitment rules were amended on 26th March 1992 when the new recruitment rules were enforced providing for filling up of the post of Accounts Officer by appointment of Officer on transfer on deputation basis from SAS qualified officers with 10 years service from Audit and Accounts Offices. ( 8 ) ACCORDING to respondents the recruitment rules were amended on 26th March 1992 when the new recruitment rules were enforced providing for filling up of the post of Accounts Officer by appointment of Officer on transfer on deputation basis from SAS qualified officers with 10 years service from Audit and Accounts Offices. On the basis of the said rules advertisement was issued on 11th April, 1992, inviting applications. As per the said rules the petitioner is not eligible. The respondents say that there used to be two Institutes known as National Institute of Health Administration and Education and National Institute of Family Planning. Both these Institutes were merged in the year 1977 and the merged Institute came to be known as the Institute. Prior to merger the post of Accounts Officer used to be filled on transfer on deputation basis by SAS qualified incumbent. After merger it was felt by the authorities of the Institute that the post of Accounts Officers should be filled from the employees of the Institute so that additional chances of promotion became avail able to the employees of the Institute. The rules were accordingly amended in 1981 and the post of Accounts Officer became to be filled by promotion from the feeder post of Accountant. As per 1981 Recruitment Rules, the post of Accounts Officer was required to be filled by promotion of Accountants with five years service in the grade and having undergone some training failing with by deputation from SAS qualified officer with 10 years service from Audit and Accounts Offices. The post of Section Officer, as per 1981 Rules, is required to be filled by promotion of Assistants with 8 years service in the grade-1 or promotion of Steno Grade-1 with three years service in the grade, failing which by deputation of Section Officer of the Government of India. The said recruitment rules provide that the post of Store Officer be filled by promotion from Purchase Assistant with 8 years service in the grade/by transfer of the person having the sa qualifications from other institutions and organisations failing which the post may be filled by direct recruitment with educational and other qualifications prescribed for the post. The Rules of 1981 continue to apply for making appointments to the posts of Store Officers and Section Officers. The Rules of 1981 continue to apply for making appointments to the posts of Store Officers and Section Officers. ( 9 ) ACCORDING to the Institute, it has been feeling all throught the period of II years from 1981 to 1992, that due to non-availability of qualiied Accounts Officers in the Institute the accounts in the Institute had been the main casulty and the same were in very poor shape. Numerous audit paras were taken by the auditors. Till 1990-91 there have been about 89 audit paras. In view of the gradual deterioration and worsening of the state of accounts it was felt that the SAS Accounts qualified officers only should be appointed as Accounts Officer and that too on deputation. They say that the post of Accounts Officer used to be filled in by transfer on deputation prior to 1991 and the same system which existed before 1981 has been reverted to after the amendment of 1992. The respondents claim that it is within their competence to make suitable amendments in the recruitment rules. The revision of the recruitment rules was based on the exercise of the organisational study conducted by a senior officer of the Ministry of Health and Family Welfare. ( 10 ) THERE was also some controversy between the parties on the number of posts of Accounts Officers. Three officers are presently working as Accounts Officers. According to the respondents two posts of Accounts Officer are regular and one post of Accounts Officer was a project post which would terminate with the termination of the project, namely, "indian Population Project". According to the respondents, prior to the approval of the new recruitment rules, there was only one post of Accounts Officer. That post as per rules prior to amendment was required to be filled by promotion from the accountants. The post was filled up on ad hoc basis by appointment of the senior most accountant. It could not be filled on regular basis as the post was reserved for Scheduled Caste category and there was no Scheduled Caste candidate available in the feeder cadre. The ad hoc arrangement was made till the post was filled on the regular basis. . Meanwhile, on 3rd February, 1992, another post of Accounts Officer was created in the Institute and with the creation of this post there became two regular posts ofaccountsOfficers. The ad hoc arrangement was made till the post was filled on the regular basis. . Meanwhile, on 3rd February, 1992, another post of Accounts Officer was created in the Institute and with the creation of this post there became two regular posts ofaccountsOfficers. On 31st May, 1991, however, a project post ofaccounts Officer was created for the specific project named above. The project post was not a regular post in the Institute. The old regular post and the newly created post on 3rd February, 1992, were both required to be filled-in accordance with the amended recruit- ment rules for the post and thus the advertisement dated 11th April, 1992, was issued calling applications for one reserved post and one general category post of Accounts Officer. The respondents have explained that the first post of Accounts Officer became vacant on retirement of D. P. Chadha on 30th June, 1986, which was filled on officiating basis by appointment of senior most accountant K. S. Sethi as the said post, as noticed above, was reserved for Scheduled Caste and none was available in the feeder cadre. K. S. Sethi was initially appointed for a period of one year and was continued thereafter on ad hoc basis from time to time. The project post not being a regular post, according to respondents, cannot be filled by promotion but only by deputation. The said project post was advertised in "employment News" from 12th to 18th October, 1991. After processing the applications in due course and holding interviews, the Selection Committee recommended the name of S. K. Gupta. S. K. Gupta was appointed on the project post on 14th February, 1992. Regarding the two posts advertised, the case of the respondents, is that when the Selection Committee was constituted for making selection of officers for filling-up of two vacancies, it was noted that as per the instructions issued by the Government, no reservation was applicable to the post, which was to be filled on transfer on deputation basis. S. K. Gupta, according to respondents, who was already holding the post of Accounts Officer (Project) also applied for the post ofaccounts Officer in the Institute in, response to the advertisement. The Selection Committee recommended the names of S. K. Gupta and Shiv Singh (Scheduled Caste) on merit for appointment against the two vacancies ofaccounts Officers. S. K. Gupta, according to respondents, who was already holding the post of Accounts Officer (Project) also applied for the post ofaccounts Officer in the Institute in, response to the advertisement. The Selection Committee recommended the names of S. K. Gupta and Shiv Singh (Scheduled Caste) on merit for appointment against the two vacancies ofaccounts Officers. Shiv Singh, whose parent department was office of Controller General of Defence Accounts, refused the offer of appointment and in his place the name of V. K. Sharma another SAS qualified officer was sponsord by Controller General of Defence Accounts. After consideration by the Selection Committee V. K. Sharma was appointed against one of the regular vacancies ofaccounts Officer in the Institute w. e. f. 14th August, 1992, and S. K. Gupta who was already working as Accounts Officer (Project) was posted against the other regular vacancy of Accounts Officer in the Institute w. e. f 17th August, 1992. K. S. Sethi who was functioning as an ad hoc Accounts Officer in the Institute was posted against the Project Post in the vacancy of S. K. Gupta with effect from 17th August, 1992, till a regular incumbent to the post ofaccounts Officer (Project) joined. A vacancy circular was issued to various Audit and Accounts Departments on 16th September, 1992, for filling up the vacancy ofaccounts Officer (Projects) by a qualified officer. In response there to nominations received from CGDA were for 1) P. N. Chaturvedi and 2) P. L. Bhatia. On recommendations of the Selection Committee the offer of appointment was issued to P. L. Bhatia who joined the post ofaccounts Officer (Projects) on 5th October, 1992. Consequently, K. S. Sethi was reverted to substantive post of Accountant with effect from the same date. According to the respondents the petitioner was not eligible for being considered for appointment to the post of Accounts Officer as per the recruitment rules made in 1992. ( 11 ) THE respondents have also objected to the maintainabiliy of the writ petition contending that the Institute is a Society registered under the Society Registration Act, 1860 and is not "state" or an instrumentally or other authority within the meaning of Article 12 of the Constitution and is thus not amenable to the jurisdiction of the Court under Article 226 of the Constitution of India. The Memorandum of Association and Rules and Regulations of the Institute have been placed on record of this petition. According to the Institute, it s governing body consists of persons mentioned in the Rules and Regulations, namely, Minister, Government Servants plus professionals from various fields including Health, Social Science, Education etc. They say that at present the majority of the members of the governing body comprise of professionals from non-governmental organisations such as Indian Council of Medical Research, All India Institute of Medical Science, International Institute for Population Sciences, Bombay, Indian Institute of Mass Communication, Centre for the Study of Social systems, School of Social Sciences, Jawaharlal Nehru University, New Delhi, Indian Institute of Management, Ahmedabad, Aligarh Muslim University, 431 Aligarh, Director National Institute of Health and Family Welfare, New Delhi etc. They further say that the management of society inter alia can associate representatives of Government, Universities and other Institutions and organisation. Indian or Foreign and prominent scientists in its programmes and it can co-operate with international agencies also in furtherance of its programmes. Further the funds of the society consists of: 1. Grant from Central Government and/state Government for the furtherance of the object of the Institute. 2. Contribution from other sources such as Oil and Natural Gas Commission, Indian Drugs and Pharmaceuticals Ltd. etc. for rendering Consultancy Services. 3. Income from Investment and 4. Receipts of the investment from other sources such as US AID, WHO, UNICEF, World Bank towards initial charges for conducting activities on their behalf. ( 12 ) THE society, according to the respondents, undertakes a large number of projects on behalf of various, non-governmental bodies including International Agencies such as WHO, World Bank, US AID, UNFPA, British Council etc. On the basis of the aforesaid facts the respondents contend that the Institute is not "state" and object to the maintainability of the writ petition. ( 13 ) THE fact that the Institute is a Society registered under Societies Registration Act, by itself, is of no consequence. It is well settled that even a Society can come within the category of State or Authority or other instrumentalities within the meaning of Article 12. The test is whether it is an instrumentality or agency of the Government and is not how it is created. It is well settled that even a Society can come within the category of State or Authority or other instrumentalities within the meaning of Article 12. The test is whether it is an instrumentality or agency of the Government and is not how it is created. The body maybe a statutory Corporation created by the statute or a company or it may be a society registered under the Societies Registration Act or any other similar statute. The inquiry has to be not as to how the body is created but why it has been created. In Ajay Hasia Vs. Khalid Muzibsehravardi (1988) 1 SCC 722 the Constitution Bench of Supreme Court held, the Regional Engineering College, Srinagar though established and its admini- stration and management being carried on by a society registered under the Jammu and Kashmir registered Society Act 1898, to be instrumentally or agency of the State and the Central Government and thus an "authority" within the definition of Article 12 of the Constitution. ( 14 ) IN support of the contention that the Institute is not "state", Mr. Vaidialingam, learned counsel for the Institute, has placed strong reliance upon decision of Supreme Court in Chander Mohan Khanna Vs. NCERT (1991) 4 SCC 578 , 1992 (24) DRJ SC 586 holding that National Council of Educational Research and Training (NCERT) is largely an automonous body and does not fall within the definition of "state" under Article 12 of the Constitution and is thus not amenable to the writ jurisdiction of the High Court. ( 15 ) NCERT is a Society registered under the Societies registration Act. The object of NCERT is to assist and advise the Ministry of Education and Social Welfare in the implem- entation of the governmental policies and major programmes in the field of education par- ticularly school education. The NCERT undertakes several kinds of programmes and activities connected with the coordination of research extension services and training, dissimulation of improved educational programmes. It also undertakes preparation and publication of books materials, periodicals and other literature. After noticing these facts the Supreme Court came to the conclusion that these activities are not wholly related to governmental functions. It was also noticed by Supreme Court that the affairs of NCERT are conducted by the Executive Committee comprising of Government servants and educationists. It also undertakes preparation and publication of books materials, periodicals and other literature. After noticing these facts the Supreme Court came to the conclusion that these activities are not wholly related to governmental functions. It was also noticed by Supreme Court that the affairs of NCERT are conducted by the Executive Committee comprising of Government servants and educationists. It also noticed that the Executive Committee would enter into arrangments with Government, public or private organisations or individuals in furtherance of the objectives for implementation of programmes. Regarding the funds of NCERT, it has been noticed that the same consist of: 1) Grant made by the Government; 2) Contribution from other sources; and 3) Income from its own assets. ( 16 ) THE Supreme Court has also noticed that the NCERT is free to apply its income and property towards the promotion of its objectives and implementation of the programmes and that the Government control is confined only to the proper utilisation of the grant. In view of these facts the Supreme Court concluded that NCERT is largely an autonomous body and does not fall within the definition of State under Article 12 of the Constitution. ( 17 ) NOTICING earlier decisions of the Court in the cases of P. K. Ramechandran lyar Vs. U. O. I. (1984) 2 SCC 141 ; Central Inland Waters Transport Corporation Ltd. Vs. Brojo Nath Ganguly (1986) 3 SCC 156 ; and Tekraj Vasandi @ K. L. Basandhi Vs. U. O. I. (1988) I SCC 236, the Supreme Court in NCERT s case opined that "article 12 should not be stretched so as to bring in every autonomous body which as some nexus with the government within the sweep of the expression "state". A wide enlargement of the meaning must be tempered by a wise limitation. It must not be lost sight of that in the modern concept of Welfare State, independent institution, corporation and agency are generally subject to State control. The State control does not render such bodies as "state" under Article 12. The State control, however vast and pervasive is not determinative. The Financial contribution by the State is also not conclusive. It must not be lost sight of that in the modern concept of Welfare State, independent institution, corporation and agency are generally subject to State control. The State control does not render such bodies as "state" under Article 12. The State control, however vast and pervasive is not determinative. The Financial contribution by the State is also not conclusive. The combination of State and coupled with an unusual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the State may largely point out that the body is " -. State". If the government operates behind a corporate veil, carrying out governmental activity and governmental functions of vital public importance, there may be little difficulty in identifying the body as "state" within the meaning of Article 12 of the Constitution. " ( 18 ) THE Supreme Court has held that there are only general principle but there are no exhaustive tests to determine whether a body is an instrumentality or agency of the govern- ment. The earlier decisions of the Court in Sukhdev Singh Vs. Bhagatram Sardar Singh Radhuvanshi, 1975 Vol. 1 SCC 421; R. D. Shetty Vs. International Airport Authority of India 1979 Vol. 3 SCC 489, Ajay Hasia Vs. Khalid Muzibsehravardi, 1988 Vol. 1 S. C. C. 722; and Som Prakash Rekhi Vs. Union of India, 1981 Vol. 1 SCC 449; were noticed and it was held:- "there are only general principles but not exhaustive tests to determine whether a body is an instrumentality or agency of the government. 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. The powers, functions, finances and control of the government arc some of the indicating factors to answer the question whether a body is "state" or not. Each case should be handled with care and caution. Where the financial assistance from the State is so much as to meet almost entire expenditure of the Institution or the share capital of the corporation is completely held by the government, it would afford some indication of the body being impregnated with governmental character. It may be a relevant factor if the institution or the corporation enjoys monopoly status which is State conferred or State protected. It may be a relevant factor if the institution or the corporation enjoys monopoly status which is State conferred or State protected. Existence of deep and pervasive State control may afford an indication. If the functions of the institution are of public importance and related to governmental functions, it would also be a relevant factor. These are merely indicative indicia and are by no means conclusive or clinching in any case. " ( 19 ) THE Supreme Court also noticed that High Court for reaching the conclusion that NCERT is not "state" had relied upon the Constitution Bench decision of Supreme Court in Sabajit Teweary Vs. Union of India, 1975 Vol. I SCC 485 in which it was held that Council of Scientific and Industrial Reserach (CSIR), which was sponsored and controlled by Central Government and registered under the Socties Registration Act, was not "state", had been distinguished and watered down in Ajay Hasia and Ramachandra lyar, ( 20 ) REFERENCE may be made to the decision of the Supreme Court in Som Prakash Rekhi Vs. Union of India and another, A. I. R. 1981 SC 212 wherein a Bench of the three Judges of Supreme Court held that preponderant considerations for pronouncing an entity as State Agency or instrumenlity are:- (1) Financial resources of the State being the chief funding source; (2) Functional character being governmental in essence: (3) Plenary control residing in Government: (4) Prior history of the same activity having been carried on by the Government and made over to the new body: and (5) some element of authority or command. ( 21 ) IN that case Bharat Petroleum Corporation was held to State within the meaning of Article 12. ( 22 ) IN B. S. Minhas Vs. Indian Statistical Institute and Others, AIR 1984 SC 363 the Statistical Institute, a Society registered under the Societies Registration Act, was held to be an "authority" within the meaning of Article 12. The control of the Central Government was held to be deep and pervasive and, therefore, it was said that for all intents and purposes the said Institute was an instrumentality of the Central Government and as such an "authority" within the meaning of Article 12. The control of the Central Government was held to be deep and pervasive and, therefore, it was said that for all intents and purposes the said Institute was an instrumentality of the Central Government and as such an "authority" within the meaning of Article 12. ( 23 ) THE object of NCERT is to assist and advise the Ministry of Health and Family Welfare in implementation of the governmental policies and programmes in the field of education particularly the school education. Unlike NCERT the object of the Institute is not only advisory and to assist the government but is to act as an apex technical institute for promoting Health and Family Welfare planning programmes in the country through education, training, services, research and evaluation. Under the Constitution of India (Seventh Schedule, List-11,6th Entry) it is the responsibility of the State Government to promote health and family welfare planning programmes in the country. ( 24 ) SOME of the relevant factors to be taken into consideration for determining whether the Institute is "state" as defined under Article 12 or not would be the extent of State aid and the extent of State control over the management and policies of the Institute and the nature of functions. If the Government operates behind corporate veil, carrying out Governmental activity and governmental functions of vital public importance, the corporate veil can be removed and the body can be held to be "state" within the meaning of Article 12 of the Constitution of India. ( 25 ) THE composition of the Standing Finance Committee of the Institute shows almost complete financial control of the Government. As per the Memorandum of Association and Rules and Regulations of the Institute, the following Members constitutes the Standing Finance Committee: (1) Secretary (Family Welfare) Ministry of Health and Family Welfare. . . . . Chairman. (2) Joint Secretary and Financial Adviser, Ministry of Health and Family Welfare. . . . Member. (3) A Member of the Governing Body to be nominated by the Chairman of the Governing Body. . . . Member. (4) Director General of Health Services. . . . Member. (5) Director, the National Institute of Health and Family Welfare. . . . Member Secretary. ( 26 ) FURTHER the composition of the governing body of the Institute shows that the main control for day to day affairs of the Institute is with the Government officials. . . . Member. (4) Director General of Health Services. . . . Member. (5) Director, the National Institute of Health and Family Welfare. . . . Member Secretary. ( 26 ) FURTHER the composition of the governing body of the Institute shows that the main control for day to day affairs of the Institute is with the Government officials. The Minister/ Minister of State/incharge Department of Family Welfare, Ministry of Health and Family Welfare is the Chairman of the governing body. The Secretary of the Ministry is the Vice-Chairman. The other Members are also mostly the high Government officers, namely. , Additional Secretary (Health) Joint Secretary, Director General of Health Services, Director General, Indian Council of Medical Reserach, Joint Secretary (Financial Adviser), Ministry of Health and Familywelfare, Director of Indian Institute of Medical Sciences, Director International Institute for Population Studies and Director of the Institute. It is correct that the Chairman can nominate six eminent persons from fields such as Social Science, Education, Mass Communication, Demography and Population Science, Medical Sciences and Economics and the nominated members may not be government officers but the possibility of nomination of non-Governmental persons in the category of eminent persons would not alter the position much and is not likely to substantially or otherwise reduce the control of the governing body is on the Government officers. The Chairman and the Vice-Chairman besides the Secretary are mainly responsible from running the day to day affairs of the Institute. ( 27 ) REGARDING financial aid Mr. Vaidialingam strongly relies upon the Clause 22 of the Memorandum providing for the funds of the Institute. According to the said Clause, the funds of the Institute will consist of the following:- 1. Grant made by Central Government and/or State Government for the furtherance of the objects of the Institute. 2. Contribution from other sources; 3. Income from investment; and 4. Receipts of the Institute from other sources. ( 28 ) THE contention of Mr. Vaidialingam is that apart from receipt of Government grant, the Institute can and has been in fact arranging funds under aforesaid categories 2 to 4. This may be so but it is only one of the factors to be kept in mind and is not conclusive for determining the issue. The substantial funds with which the Institute is run are, however, provided by the Government. This may be so but it is only one of the factors to be kept in mind and is not conclusive for determining the issue. The substantial funds with which the Institute is run are, however, provided by the Government. In the year 1991-92, the grant in aid from the Government was about Rs. 5 crores 4 lacs and the funds stated to have been received from other agencies was about I crore. Further the accounts of the Institute are required to be audited annually by the Comptroller and Auditor General of India or by any other person appointed by him in this behalf. The auditor is also required to submit a copy of the Audit report to the Ministry. The annual balance sheet and revenue account when accepted paid passed at the general meeting of the governing body is required to be sent to Government of India. Further, upto the dissolution of the Institute, if there remains, after the satisfaction of all debts and liabilities, any property whatever, the same is required to be disposed of in accordance with the approval of Government of India. ( 29 ) THE Bye-laws of the Institute, inter alia, provide that the Central Civil Services (Conduct) Rules, 1964 as amended from time to time shall apply mutatis-mutandis to the employees o the Institute and so also the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The Bye-laws also provide that in respect of matters not provided for the rules as applicable to Central Government servants regarding the general conditions of service) pay etc shall apply mutatis-mutandis to the employees of the Institute. Any alteration of the Bye-laws requires the prior approval of Government of India. ( 30 ) COUNSEL for the Institute referred to the Memorandum of Association and Rules and Regultions of the Institute and urged that the government has not delegated to the Institute any of its powers and functions and the Institute is required to mainly advise the Ministry on question of health and family welfare and conduct research. The said functions do not, however, show that the Institute has primariy to advise and assist the Ministry. It shows that functions of vital public importance are required to be undertaken by the Institute. ( 31 ) IN NCERT s case the Supreme Court did not lay down any different law but reiterated law laid in earlier decisions. The said functions do not, however, show that the Institute has primariy to advise and assist the Ministry. It shows that functions of vital public importance are required to be undertaken by the Institute. ( 31 ) IN NCERT s case the Supreme Court did not lay down any different law but reiterated law laid in earlier decisions. After adding a note of caution, that Article 12 should not be stretched so as to bring in every autonomous body which has somenexus with the government within the sweep of the expression "state" and that each case should be handled with care and caution, the Supreme Court, in view of aims, objects and other relevant factors upheld the decision of the High Court that NCERT was not "state". Applying the ratio of the decisions of Supreme Court including that of NCERT s case, and having regard to the deep and pervasive control of the government evident from the facts noticed hereinbefore, it has to be held that the Institute is "state" within the meaning of Article 12 of the Constitution. The financial and the day to day administrative control of the Institute vests in Government and its officers and it is discharging the functions of the State which are of public importance. The funds also mainly come from Government of India. Accounts are audited by Government. To the employees of the Institute Government conduct and classification and appeals rules are applicable. The control of the Central government is deep and pervasive. The contention of the respondent that neither financial nor administrative nor functional control is exercised by the Government on the affairs of the Institute is without any substance. The Institute is thus held to be an "authority" within the meaning of Article 12 of the Constitution and amenable to the writ jurisdiction of this Court. ( 32 ) MR. Swatantar Kumar, learned counsel for the petitioner, in alternative, made another submission. The submission was that this court should not apply the ratio of the decision ofn. C. E. R. T s case as that case was decided by two Hon ble Judges of Supreme Court whereas the case of Som Prakash Rekhi was decided by three Judges of the Supreme Court and Ajay Hasia s case was decided by a Constitution Bench and in law two Judges could not overrule decision of even another coordinate Bench. C. E. R. T s case as that case was decided by two Hon ble Judges of Supreme Court whereas the case of Som Prakash Rekhi was decided by three Judges of the Supreme Court and Ajay Hasia s case was decided by a Constitution Bench and in law two Judges could not overrule decision of even another coordinate Bench. In view of my conclusions that decision in N. C. E. R. T s case does not lay down any different law, this alternative submission of the petitioner does not require adjudication. ( 33 ) NOW on merits the admitted position is that the petitioner was informed by the Institute that he will not be eligible for promotion to any other post except the post of Accounts Officer. On that representation the petitioner opted for the Accounts line and thus could not be considered for promotion as Section Officer or Store Officer both in scale of Rs. 2,000-3,500. After the petitioner has put in approximately II years service as Accountant, the Institute is estopped from contending that it has now amended the rules and the amended rules would be applicable to the petitioner and for that reason he cannot be considered for promotion to the post of Accounts Officer and that posts of Accounts Officers are to be filled now by appointment of officers on deputation. The petitioner has already suffered immense prejudice. The persons who had joined the Institute much later than the petitioner have admittedly become Section Officers or Store Officers. There is not much difference in the pay scales of the posts of Accounts Officer or of Section Officer or Store Officer. The petitioner cannot and is not making a grievance that he should have been considered for promotion to the post of Accounts Officer earlier when his juniors had been promoted as Section Officers or Store Officers. The petitioner had exercised the option for going to accounts line. Likewise his juniors had exercised different options and if on that account they were considered for promotion as Section Officer or Store Officer as these posts became available earlier, the petitioner cannot make any grievance. The petitioner had exercised the option for going to accounts line. Likewise his juniors had exercised different options and if on that account they were considered for promotion as Section Officer or Store Officer as these posts became available earlier, the petitioner cannot make any grievance. The facts about juniors having been promoted earlier than the petitioner have been given not with a view to challenge those appointments or to contend that the petitioner should have also been promoted before or along with them but to show the extent of prejudice which has been caused to the petitioner because of the stand of the Institute that he is not even eligible for being considered for promotion to the post of Accounts Officer on account of change of the rules and must stagnate as accountant. The changed rules, in the facts and circumstances of the case, are not applicable to the petitioner. The petitioner would continue to be governed by the unamended rules which provide that the post of Accounts Officer has to be filled by promotion from Accountant with 5 years service in the grade failing which by deputation from SAS qualified officer with 10 years service from Audit and Accounts Offices. ( 34 ) IN view of the aforesaid conclusion it is not necessary to go into the question Of validity of the rules. There is also no difficulty in accepting the contention of the respondents that they have power to amend the rules and that the respondents have to decide the question of amendment of rules keeping in view the interests of the Institute. The question in the present case is not about the power of the respondents to amend the rules but is about their applicability to the petitioner. It is also not necessary to decide whether there was any justification or not for amending the rules as in my view the amended rules are not applicable to the petitioner. ( 35 ) THERE cannot be any dispute that in so far as the post of Accounts Officer which was in existence in the year 1981 that has to be filled by method of recruitment provided in 1981 Rules. The post which was created on 3rd February, 1992, before approval of amended rules on 26th March 1992, was also required to be filled by the same method. The post which was created on 3rd February, 1992, before approval of amended rules on 26th March 1992, was also required to be filled by the same method. The project post of Accounts Officer which was created on 31st May 1991, in my view, was also required to be filled by same method. When this post was created in 1991 the amended rules were nowhere in picture and thus I cannot accept the submission that the said post being outside rules could be filled by appointment of an officer on deputation. On all these posts the petitioner had a right to be considered for appointment by promotion as Accounts Officer in accordance with 1981 Rules. The petitioner was wrongly not considered. ( 36 ) IN view of aforesaid discussion, the advertisement dated 11th April 1992 is quashed. The Institute is directed to consider the petitioner for appointment by promotion to the post of Accounts Officer in accordance with method of recruitment stipulated in 1981 Rules. The rule is, accordingly, made absolute and the writ petition is allowed with costs. Counsel fee Rs. 2500. 00.