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2014 DIGILAW 108 (MAN)

Rural Service Agency (RUSA) v. State of Manipur

2014-09-04

N.KOTISWAR SINGH

body2014
JUDGMENT N. Kotiswar Singh, J. 1. Heard Mr. N. Jotendro, learned counsel for the petitioners. Also heard Mr. S. Nepolean, learned G.A. for the respondent No. 1, Mr. K. Rabei for the respondents 2 & 5, Mr. Siddharth Bawa for the respondent No. 3 and Mr. Kh. Mani for respondent No. 4. 2. The present writ petition has been filed by 6 (six) non-governmental organisations which were earlier running Community Care Centers (CCCs) to provide service of various kinds to the people living with AIDS/HIV, seeking certain directions against the respondents, more particularly, respondent Nos. 3 and 4 for their purported arbitrariness in selecting the Community Care Centers now known as Community Service Centers without any public advertisement for selection of the said centers. 3. According to the petitioners, they were earlier selected as Community Care Centers by the Manipur AIDS Control Society (MACS in short) to provide care and support and treatment for the people living with AIDS/HIV, as per the funds provided by the National AIDS Control Organisation, which is under the Ministry of Health and Family Welfare, Government of India. However, there has been certain change in the funding pattern and implementation of the projects as per Notification dated 28.02.2013 issued by the Manipur State AIDS Control Society, by which it has been notified that the Government of India, Ministry of Health & Family Welfare Department of AIDS Control (Care, Support & Treatment Division) vide their Office Memorandum dated 28.02.2013 had decided to assign implementation of the Care and Support model under Global Fund R4 RCC Phase II to a new PR, namely, "India HIV/AIDS Alliance" (the Respondent No. 3) from 1st April, 2013 and the contracts of all the CCCs financially supported by the State AIDS Control Society would be terminated w.e.f. 31.3.2013. It was also clarified that the financial support given to the Community Care Centers by the Manipur AIDS Control Society will not be extended beyond 31.03.2013 (Annexure-A/1). 4. It was also clarified that the financial support given to the Community Care Centers by the Manipur AIDS Control Society will not be extended beyond 31.03.2013 (Annexure-A/1). 4. According to the petitioners, though the financing pattern and implementation process had been changed and the respondent No. 3 was given the responsibility for implementation of the care and support which was earlier implemented under the State AIDS Control Societies and National AIDS Control Organisation, the new agency i.e., the respondent No. 3 is supposed to implement the same by selecting the Community Care Centers now renamed as Community Service Centers in a transparent manner as had been done in the past. According to the petitioners, the petitioners had been earlier selected as a Community Care Centers on the basis of public advertisement in a transparent manner. However, the respondent No. 3 instead of selecting the new CCCs after public advertisement had arbitrarily selected the respondent No. 4 i.e., the Manipur Network for Positive People (MNP+) Plus as the sole implementing agency in the State of Manipur which in turn is going to select the Community Service Centers in Manipur. According to the petitioners, so far there has not been any such public advertisement on the part of the respondent No. 4 for the selection and appointment of CSC from amongst the various NGOs active in the field relating to HIV/AIDS. Thus, the main grievance of the petitioners is that upon the change in the agency for implementation of various projects relating to HIV/AIDS in favour of the respondent No. 3 and appointment of the respondent No. 4 by the respondent No. 3 for that purpose, these respondents without following any transparent method by way of inviting applications from the various NGOs, are resorting to pick and choose method of selection which is not permissible in law in as much as it violates Article 14 of the Constitution of India, and accordingly have approached this Court for passing appropriate direction to the respondents for ensuring that selection of the Community Service Centers be undertaken in a fair and transparent manner by issuing public advertisement. 5. The respondents 2, 3, 4 and 5 have filed their respective affidavits-in-opposition. 5. The respondents 2, 3, 4 and 5 have filed their respective affidavits-in-opposition. The common ground taken by all the respondents is that there has been a change of the implementing agency relating to various services provided for the benefit of the HIV/AIDS affected persons and other related activities and it is being presently implemented by Global Fund which had selected Alliance India, the respondent No. 3 as its principal agency in India for implementing the care and support strategy for the HIV affected people after 31-03-2013 and the Manipur State AIDS Control Society does not have any more role to play in the selection of the NGOs to manage the Community Service Centers as Sub-Sub-Recipients through which the revised care and support strategy are to be channelized. The respondent Nos. 3 and 4 have raised the additional plea that the present writ petition is not maintainable in as much as under the present revised scheme of funding and implementing various projects for the benefit of the AIDS/HIV affected persons, neither the State nor the Central Government has any role to play and all these activities to be performed by the newly created Community Service Centers are to be channelized through the respondent No. 3, a non-governmental organisation and the principal recipient and agency of the Global Fund in India. It has been stated that funds for all these HIV/AIDS related activities are being provided by Global Fund, a not-for-profit international channelizing agency based in Switzerland and it is not at all connected with either the State or Central Government. Accordingly, it has been submitted that no writ would lie against these non-governmental organisations. It has been also submitted that even though, in the present writ petition, the State Government as well as the Manipur State AIDS Control Society and National AIDS Control Organisation have been impleaded as respondents, since they do not have any role to play any longer in all these activities being conducted through the respondent Nos. 3 and 4, this present writ petition is not maintainable. Accordingly, the respondents No. 3 and 4 have urged this Court to decide on the maintainability of this writ petition before proceeding further. 6. The respondent No. 3 in its affidavit-in-opposition has elaborately laid down the modality of the present scheme relating to various services rendered for the benefit of the HIV/AIDS affected persons. Accordingly, the respondents No. 3 and 4 have urged this Court to decide on the maintainability of this writ petition before proceeding further. 6. The respondent No. 3 in its affidavit-in-opposition has elaborately laid down the modality of the present scheme relating to various services rendered for the benefit of the HIV/AIDS affected persons. It has been stated that the programme relating to providing care and support to persons affected with HIV/AIDS and to improve the survival and quality of life for all people living with HIV, which was earlier implemented through the National AIDS Control Organisation and respective State AIDS Control Societies by appointing various NGOs at the grass-root level like the present writ petitioners has came to and end w.e.f. 31-03-2013 as clearly mentioned in the order dated 28.02.2013 issued by the Manipur State AIDS Control Society (Annexure-A/1 to the writ petition). In place of the earlier programme, a new programme has commenced w.e.f. 1.04.2013 which will continue till 31-03-2014. Under the new programme funding will be provided by Global Fund and the various implementing agencies at the State and district level would be determined by the Global Fund as per the criteria prescribed by it in which there is no role for the State or Central Governments or the National AIDS Control Organisation or the State AIDS Control Societies. As mentioned above, it has been stated that Global Fund is a Switzerland based organisation which receives funds from various international funding organisations and countries and is not part of any Government. The respondent No. 3, also a nongovernmental organisation, which has been active in the field relating to HIV/AIDS since the year 1999 was selected by Global Fund as the principal recipient for 2 (two) rounds of Global Funds in India for implementing the programmes including the one which is the subject matter of the present writ petition. 7. It is has been stated that though the respondent No. 3 is not a Government agency, nevertheless, it followed a broad based policy to involve various NGOs and organisations engaged in providing health care support to HIV positive persons/persons affected with AIDS for appointment of Sub-Sub-Recipients for undertaking the various care and protection and other activities. 7. It is has been stated that though the respondent No. 3 is not a Government agency, nevertheless, it followed a broad based policy to involve various NGOs and organisations engaged in providing health care support to HIV positive persons/persons affected with AIDS for appointment of Sub-Sub-Recipients for undertaking the various care and protection and other activities. It has been also stated that in that regard, the respondent No. 3 had during January to March, 2013 invited request for proposal from NGOs and organisations engaged in providing health care support to HIV positive affected with AIDS for appointment as Sub-Sub-Recipients (SSRs) by issuing advertisement through websites and also sending group e-mail on the bulletin board for AIDS Forum, and e-mail directories of NGO/organisations engaged in HIV/AIDS programme in India. It has been also stated that a general consultation programme with the regional stake holders was organised by the respondent No. 3 at Guwahati on 13.03.2013 which was widely circulated in the State of Manipur. It has been also stated that the respondent No. 4 which is one of the active NGOs working in the field of HIV/AIDS in Manipur was selected by the respondent No. 3 after inviting applications from various NGOs/stake holders. It has been stated by the respondent No. 3 that after issue of public offer inviting proposals for appointment of Sub-Recipients and Sub-Sub-Recipients (SSRs), over 650 proposals were received which were considered in a fair and impartial manner through an independent organisation "GFK Mode" in accordance with the policies of the funding agency, Global Fund and 225 SSRs were selected including 5 SSRs for the State of Manipur. The respondent No. 4 is one such SR which was selected after public advertisement. It had been stated by respondent No. 3 that in fact the petitioner No. 6 had also applied for selection as an SR but its application was rejected as it did not satisfy the eligibility criteria for selection. This fact however, had been concealed by the petitioner No. 6 at the time of filing the writ petition. It was also stated that the petitioner Nos. 2 and 5 had participated in the regional consultancy held at Guwahati on 13.03.2013 and were fully aware of the policies and programmes and activities of the respondent No. 3. Accordingly, the respondent No. 3 has taken the plea, inter alia, that the present writ petition is not maintainable. 8. It was also stated that the petitioner Nos. 2 and 5 had participated in the regional consultancy held at Guwahati on 13.03.2013 and were fully aware of the policies and programmes and activities of the respondent No. 3. Accordingly, the respondent No. 3 has taken the plea, inter alia, that the present writ petition is not maintainable. 8. Mr. N. Jotendro submitted, relying on the decision of the Supreme Court in Pramati Educational & Cultural Trust(r) & Ors. -vs-Union of India & Ors. reported in: 2014 Legal Eagle (SC) 288, has contended that the functions discharged by the respondent Nos. 3 and 4 are for the protection of the right to life in respect of persons affected with HIV/AIDS, guaranteed under Article 21 of the Constitution and as such, these entities can be said to be "other authority" to be within the purview of State as provided under Article 12 of the Constitution of India. It has been therefore, contended that, they would be amenable to writ jurisdiction. On the other hand, Mr. Siddharth Bawa relying on the decision of the Supreme Court in Shalini Shyam Shetty and Another -vs- Rajendra Shankar Path reported in : (2010) 8 SCC 329 has submitted that writ would not lie against respondent Nos. 3 and 4 in as much as they are neither Governmental agencies nor instrumentalities of the State within the meaning of Article 12 but are private individuals. 9. As to the scope and meaning of "State" as defined under Article 12 of the Constitution of India, this has been considered by the Supreme Court in a catena of cases. Without burdening this judgment with the numerous cases in this regard, it may be apposite to refer to the decision of the Constitution Bench of the Supreme Court rendered in Pradeep Kumar Biswas -vs- Indian Institute of Chemical Biology and Others reported in : (2002) 5 SCC 111 . The Supreme Court after elaborately discussing this issue with reference to earlier decisions observed that where in the light of the cumulative facts it is established that the body or entity is financially or functionally and administratively dominated by or is under the control of the Government and such control is peculiar to the body in question and is pervasive, it will come within the meaning of "other authority" and hence a "State" as provided under Article 12 of the Constitution. It was also held that on the other hand, if the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a "State". 10. Keeping the aforesaid principle in mind, we may examine the issue at hand. The respondents 3 in its affidavits-in-opposition has specifically pleaded that it is a non-governmental organisation based in Delhi involved in the field of HIV which had been working in India since 1999 for HIV prevention, care and support, sexual and reproduction, health and rights and HIV integration, HIV advocacies with communities infected and affected by HIV/AIDS and it was selected as the principal recipient by the Global Fund, another non-governmental voluntary organisation based in Switzerland. The respondent No. 3 has been registered under Section 25 of the Companies Act, 1956 as a limited company by guarantee. The respondent No. 3 has also annexed a copy of the Memorandum and Articles of Association. There is nothing in the aforesaid Memorandum and Articles of Association to show the involvement of either the State or Central Government or any Governmental agency, much less any pervasive control of the Government. The aforesaid pleadings and assertions of the respondent No. 3 have not been specifically denied by the petitioners by way of filing any rejoinder affidavit or otherwise. The affidavit filed on behalf of respondent No. 5 has also categorically stated that the care and support centers which are being managed through the implementing agency of the respondent No. 3 are not being supported by the department of the State AIDS Control Society nor the State AIDS Control Society has any role in the selection of the Sub-recipient and SSRs made by the respondent No. 3. There is nothing to indicate in the affidavits of the said respondents that the activities of the respondent No. 3 are being regulated by the State or any State agency. From the materials on record, it is thus seen that the respondent No. 3 is a non-governmental organisation based in New Delhi operating in partnership with civil societies and other communities to support resistance to HIV in India and it has been contributing supplementing the role of the National AIDS Control Programme but it is not an integral part of or functions under the control of the National AIDS Control Society or any governmental agency. Nothing has been placed before this Court by the petitioners to show that the respondent No. 3 is financially, functionally and administratively under the control of the Government so as to bring it within the ambit of Article 12 of the Constitution of India. Therefore, this Court, in view of the above materials on record, holds that the respondent No. 3 is a non-governmental organisation and hence, a private body. As such, no writ would lie against it. Hence, this Court accepts the contention of the respondent No. 3 that it is not a State within the meaning of Article 12 of the Constitution of India and hence is not amenable to writ jurisdiction. So far as respondent No. 4 is concerned, it is admittedly a non-governmental organisation operating in the State of Manipur which is also working in the field of HIV related issues, which had been selected by the respondent No. 3 for implementing the various programmes and projects as mentioned above and it is nobody's case that respondent No. 4 is funded by or controlled by the State or any State agency. The decision relied in Pramati (supra) relied upon by Mr. N. Jotendro, learned counsel for the petitioners is not applicable in the present case, as the issue involved in the said case was regarding the constitutional validity of Article 15(5) and Article 21-A relating to admission in private educational institutions more particularly with reference to the "private unaided" educational institutions and it was not so much concerned with the definition and scope of "the State" within the meaning of Article 12 of the Constitution of India. 11. It may be observed that the main relief claimed in the writ petition is for a direction to the respondents to hold public advertisement while making selection of the Community Service Centers and also to restrain these respondents from giving allotment in favour of any NGO without public advertisement/notification. In this connection, it may be noted that Government of India vide their order dated 28.02.2013 had already decided to assign the implementation of the Care and Support in respect of the HIV/AIDS related issues under the Global Fund to the respondent No. 3 and none of the Government agencies including the State AIDS Control Society will have any role to play. This order dated 28.02.2013 by which the State authorities have taken the decision to divest the State agencies including the State AIDS Control Society of any role in the Care and Support model for the AIDS/HIV related issues which is being implemented through the respondent No. 3 has not been challenged by the petitioners. Therefore, if the State or the Central Government or any of the State agencies are not involved in the new set up and arrangement which has been assigned to the respondent No. 3, a non-governmental organisation, no direction could be issued to the State agencies viz., the respondent Nos. 1, 2 or 5 as these respondents have no role in the present revised scheme. If no direction could be issued to any of the State Government/Government agencies, no writ could be issued exclusively to private parties like the respondent Nos. 3 and 4 independently of these State respondents. Accordingly, this Court is of the view that this writ petition is not maintainable as no writ would lie solely against private respondents, independent of State authorities. 12. For the reasons discussed above, the writ petition stands dismissed as not maintainable.