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2007 DIGILAW 694 (KER)

Sathyavan Kottarakkara v. State of Kerala

2007-10-16

H.L.DATTU, K.T.SANKARAN

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Judgment :- H.L. Dattu, C.J. The petitioner is a retired school teacher. He also calls himself a public spirited citizen. (2). In this petition filed under Article 226 of the Constitution, the petitioner primarily seeks for a declaration to declare that Sree Chitra Thirunal College of Engineering, Thiruvananthapuram is a State Government institution for all purposes including in the matter of selection, appointment of lecturers, professors, clerical staff, peon, watchman, driver etc. and admission of students etc. The consequential prayer sought in the writ petition is to direct the third respondent in the petition not to appoint, select, approve or give salary to any person in the Sree Chitra Thirunal College of Engineering, Thiruvananthapuram without following the rules applicable to the Government servants and lastly to direct respondents 1 and 2 to review all the appointments made in the Sree Chitra Thirunal College of Engineering, Thiruvananthapuram. (3). Along with the writ petition, the petitioner has produced the memorandum of association for the establishment of the college and also the Rules framed by the college for the purpose of managing the affairs of the college. The other documents which are produced along with the petition are the letters of appointments issued by the college appointing certain non-teaching staff. (4). The respondents have filed a detailed statement of objection resisting the reliefs sought for by the petitioner in the writ petition. (5). The core issue that would arise for consideration and decision of this Court is whether the respondent society is covered by the definition of "State" within the meaning of Article 12 of the Constitution and amenable to the writ jurisdiction of this Court. (6). Sri.P.B.Sahasranaman, learned counsel appearing for the petitioner has taken us through all the clauses in the memorandum of association and also the rules framed by the society for running the college. (7). The learned counsel, Sri. Sahasranaman repeatedly would tell us that since the Minister for Transport, the Chairman of the Kerala State Road Transport Corporation (KSRTC), the Managing Director of KSRTC, the Financial Advisor and Chief Accounts Officer of the KSRTC and other ex-officio members of the society are all Government servants and therefore, the society has all the characteristics of a "State" and, therefore, the declaration sought for by the petitioner requires to be granted by this Court. (8). (8). The learned counsel, Sri.Sahasranaman in all fairness to the Court and to the other side has brought to our notice the law declared by the Apex Court in the case of Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology (2002) 5 SCC 111), M/s. Zee Tele Films Ltd. Vs. Union of India (AIR 2005 SC 2677) and Virendra Kumar Srivastava Vs. U.P.Rajya Karmachari Kalyan Nigam (2004 AIR SCW 6628). (9). The Supreme Court in the case of Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology (2002) 5 SCC 111) after referring to all the earlier decisions rendered by the Court on the issue whether a particular organisation would come within the meaning of ‘State' as envisaged under Article 12 of the Constitution has stated as under: "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 Article12. 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." (10). The observations made by the Constitution Bench in Pradeep Kumar's case are reiterated by the Apex Court in M/s. Zee Tele Films Ltd. Vs. Union of India (AIR 2005 SC 2677). In the said decision at para 21 and 22, the Court has observed as under: "Thereafter the larger Bench of this Court in Pradeep Kumar Biswas (supra) after discussing the various case laws laid down the following parameters for gauging whether a particular body could be termed as State for the purpose of Article "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 other wise, it would not serve to make the body a State (para 40). Above is the ratio decidendi laid down by a seven-Judge Bench of this Court which is binding on this Bench. The facts of the case in hand will have to be tested on the touchstone of the parameters laid down in Pradeep Kumar Biswas's case (supra). Before doing so it would be worthwhile once again to recapitulate what are the guidelines laid down in Pradeep Kumar Biswas's case (supra) for a body to be a State under Article 12. They are:-- (i). Principles laid down 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. (ii). The question in each case will have to be considered on the bases of facts available as to whether in the light of the cumulative facts as established, the body is financially, functionally, administratively dominated by or under the control of the Government. (iii). Such control must be particular to the body in question and must be pervasive. (iv). Mere regulatory control whether under statute or otherwise would not serve to make a body a State." (11). The Apex Court in the case of Virendra Kumar Srivastava Vs. U.P.Rajya Karmachari Kalyan Nigam (2004 AIR SCW 6628), once again has reiterated what was said in Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology (2002) 5 SCC 111). (12). A reading of the dicta laid down by the Apex Court would clearly indicate that to come within the meaning of 'State' as envisaged under Article 12 of the Constitution, three factors are most relevant. They are: The State should have functional, administrative and financial control over the affairs of the body in question. (12). A reading of the dicta laid down by the Apex Court would clearly indicate that to come within the meaning of 'State' as envisaged under Article 12 of the Constitution, three factors are most relevant. They are: The State should have functional, administrative and financial control over the affairs of the body in question. Secondly, it should have pervasive control over the affairs of the organistation or the body or the society. (13). Keeping in view the dicta laid down by the Apex Court, let us go through the clauses in the memorandum of association of the respondent society. The name of the Society is "KSRTC Sree Chitra Thirunal College of Engineering (Thiruvananthapuram) Society". The registered office of the society shall be at Thiruvananthapuram. (14). The objects of the society is to take over and carry on the administration and management of the Sree Chitra Thirunal College of Engineering, Thiruvananthapuram, established by the KSRTC. Apart from the above object, clause 3 of the memorandum of association gives out various other objects which the society intends to provide in the college run by the society. In so far as the funding of the society is concerned, it is made clear that a fund will be maintained to which shall be credited all moneys provided by the KSRTC; all fees and other charges received by the society; all moneys received by the society by way of grants, gifts, loans, donations, benefactions, bequests or transfer; all moneys received by the society in any other manner or from any other sources. Clause 27 of the memorandum of association would speak of appointment of teaching and non-teaching faculty in the college run by the society. Prior to deletion of obtaining prior sanction of the Government, the society was expected to have the sanction of the State Government for appointing teaching and non-teaching faculty in the college run by the society. The memorandum of association also provides constitution of Board of Governors to manage the affairs of the society. Prior to deletion of obtaining prior sanction of the Government, the society was expected to have the sanction of the State Government for appointing teaching and non-teaching faculty in the college run by the society. The memorandum of association also provides constitution of Board of Governors to manage the affairs of the society. It would consist of 14 members which includes the Transport Minister, Secretary to Transport Department, the Managing Director of KSRTC, the Financial Advisor and Chief Accounts Officer of KSRTC, two persons nominated by the State Government from among the Directors of the KSRTC Board, two prominent Educationalists nominated by the Chairman, the Principal, Sree Chitra Thirunal College of Engineering, the Principal Secretary to Government, Finance Department or his nominee not below the rank of Joint Secretary, Principal Secretary to Government, Higher Education Department or his nominee not below the rank of Joint Secretary, South Western Regional Officer of AICTE and lastly the nominee of AICTE. (15). The Society has framed its own Rules for the purpose of managing the affairs of the Society. The Rules are known as KSRTC Sree Chitra Thirunal College of Engineering (Thiruvananthapuram) Society Rules. Under the Rules, it is again the Board of Governors are authorised to manage the affairs of the Society. The members of the Society, the Board or of any committee appointed by the Society or the Board shall not be entitled to any remuneration from the Society or the Board. Under Rule 16 of the Rules, the State Government may take over the Society, if it is satisfied that the Society/College is not functioning properly. Clause 17 of the said memorandum would provide for a contingency, if for any reason, the Society is wound up or dissolved. It only says that on winding up of the society, the debts and liabilities and the other assets of the society shall not be paid or disbursed among the members of the society, but shall be dealt with in such manner as the State Government may determine. This particular clause is in consonance with Section 24 of the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. (16). This particular clause is in consonance with Section 24 of the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. (16). Having seen the clauses in the memorandum of association of the society and also the rules framed by the society, we are of the opinion that neither administratively, functionally nor financially the State Government has anything to do with the management of the affairs of the society. (17). Sri.Sahasranaman, learned counsel appearing for the petitioner would repeatedly contend before this Court that since the ex-officio members of the society are none other than the officers of the KSRTC and the State Government, it should be presumed by this Court that the affairs of the society is controlled by the State Government and, therefore, would fall within the meaning of the expression "State" under Article 12 of the Constitution. In our opinion, the said submission of the learned counsel cannot be accepted in view of what has been stated by the Apex Court in the case of Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology (2002) 5 SCC 111) and M/s. Zee Tele Films Ltd. Vs. Union of India (AIR 2005 SC 2677). (18). The Supreme Court in Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology (2002) 5 SCC 111) and M/s. Zee Tele Films Ltd. Vs. Union of India (AIR 2005 SC 2677) has observed that all the factors such as financial, functional and administrative control requires to be under the control of the State Government and such control must be particular to the body in question and must be pervasive, if a society has to come within the meaning of the expression "State" under Article 12 of the Constitution. If one of the factors is missing, then it will not come within the meaning of the expression "State" under Article 12 of the Constitution. (19). In the instant case, as we have already noticed no where in the memorandum of association of the society nor in the rules framed by the society, the State Government has any control over the affairs of the society, much less the administrative or the functioning of the affairs of the society. In that view of the matter, in our opinion, the declaration sought for by the petitioner to declare the respondent Society a "State" within the meaning of Article 12 of the Constitution cannot be granted. (20). In that view of the matter, in our opinion, the declaration sought for by the petitioner to declare the respondent Society a "State" within the meaning of Article 12 of the Constitution cannot be granted. (20). Since the respondent society is not amenable to the writ jurisdiction of this Court, the other reliefs sought for by the petitioner also cannot be granted by us. (21). In the result, the writ petition fails, and it requires to be rejected. Accordingly, the writ petition is rejected. (22). In view of the order passed in the writ petition, all pending interlocutory applications and R.P.No.523 of 2006 are dismissed. Ordered accordingly.