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2016 DIGILAW 2051 (GUJ)

Pathak Pratiksha Vishal v. State of Gujarat

2016-09-19

R.SUBHASH REDDY, VIPUL M.PANCHOLI

body2016
ORDER : VIPUL M. PANCHOLI, J. By way of this appeal, which is filed under Clause 15 of Letters Patent, appellant - original petitioner seeks to challenge common oral order dated 25.07.2016 passed by learned Single Judge by which learned Single Judge dismissed the petitions filed by the concerned petitioners including the present appellant. 2. In this appeal, the issue which is required to be considered is whether the respondent No. 3 - Gujarat Cancer & Research Institute is ‘State’ within the meaning of Article 12 of the Constitution of India or not? 3. The appellant - original petitioner filed a petition against the respondent No. 3 - Gujarat Cancer & Research Institute and others wherein the petitioner prayed for the following relief/s: “(A) YOUR LORDSHIPS may be pleased to admit and allow this petition. (B) YOUR LORDSHIPS may be pleased to issue writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and set aside order dated 21.06.2016 passed by the respondent No. 3. (C) Pending admission, hearing and final disposal of the petition, YOUR LORDSHIPS may be pleased to stay and suspend implementation, execution and operation of order dated 21.06.2016 passed by the respondent No. 3, and further be pleased to direct the respondent No. 3 not to reduce the pay scale and pay band and not to recover any kind of amount as stated in the impugned order.” 4. It is the case of the petitioner that the petitioner was initially appointed as Junior Nurse, Grade-B on fixed pay by an order dated 22.05.2006 Thereafter, by an order dated 27.07.2011 petitioner was temporarily promoted and appointed as Staff Nurse w.e.f 01.08.2011 It is the grievance of the petitioner that by impugned order dated 21.06.2016, the respondent institute sought recovery of Rs. 2,70,814/- as the said amount alleged to have been wrongly paid by way of salary during the period between 01.12.2010 to 31.05.2016 It was informed to the petitioner that Rs. 3,500/- would be deducted per month from the salary of the petitioner. Petitioner, therefore, filed the aforesaid petition. The learned Single Judge dismissed the said petition along with other petitions on the ground that respondent No. 3 - Gujarat Cancer & Research Institute is not a ‘State’ within the meaning of Article 12 of the Constitution of India and therefore the petition is not maintainable. Petitioner, therefore, filed the aforesaid petition. The learned Single Judge dismissed the said petition along with other petitions on the ground that respondent No. 3 - Gujarat Cancer & Research Institute is not a ‘State’ within the meaning of Article 12 of the Constitution of India and therefore the petition is not maintainable. The appellant - petitioner has therefore preferred this appeal. 5. Heard learned Advocate Mr. R.C Jani appearing for the appellant and learned Advocate Mr. Saurin Mehta for Ms. Anuja Nanavati for respondent No. 3 - Gujarat Cancer & Research Institute. 6. Learned Advocate Mr. R.C Jani mainly contended that respondent No. 3 is a ‘State’ within the meaning of Article 12 of the Constitution of India and therefore learned Single Judge has wrongly relied upon the decision rendered by the Division Bench of this Court in the case of Dr. C.A Shah v. Gujarat Cancer & Research Institute, reported in 1992 (2) G.L.H 38 . Learned Advocate referred the said decision rendered by the Division Bench and thereafter submitted that the said decision was rendered in the year 1992. However, thereafter, the respondent State has implemented the recommendations of 5th Pay Commission as well as 6th Pay Commission and the benefits of the same were given to the employees of the respondent No. 3 - Institute. Learned Advocate referred the documents which are produced at page 15 of the compilation in support of his submission. It is submitted that when the Gujarat Civil Services (Revision of Pay) Rules, 2009 are made applicable to the respondent No. 3 - Institute, it is not proper on the part of the learned Single Judge to follow the decision rendered by the Division bench of this Court in the case of Dr. C.A Shah (supra). 7. Learned Advocate Mr. Jani thereafter referred to the Government Resolution dated 23.06.2016 issued by the respondent State Government by which action of the respondent No. 3 - Institute to give the benefit of recommendations of 4th Pay Commission to its employees has been regularized by giving sanction with retrospective effect on certain terms and conditions. The said G.R is annexed with the Civil Application No. 8255 of 2016 in the present appeal. The said G.R is annexed with the Civil Application No. 8255 of 2016 in the present appeal. Relying on the said resolution, it is contended that the respondent No. 3 - Institute is under the control of the State Government and therefore respondent No. 3 is a ‘State’ within the meaning of Article 12 of the Constitution of India. Hence, the impugned order passed by the learned Single Judge be set aside and the petition be heard on its own merits. 8. On the other hand, learned Advocate Mr. Saurin Mehta appearing for respondent No. 3 Institute submitted that the issue raised in this appeal is already concluded by the decision rendered by the Division Bench of this Court in the case of Dr. C.A Shah (supra). It is submitted that recently in two other cases, Division Bench of this Court has followed the aforesaid decision. Learned Advocate Mr. Mehta has placed on record the orders passed by this Court in support of his submission. Learned Advocate therefore submitted that when the learned Single Judge has considered all the aforesaid aspects, this Court may not interfere with the order passed by the learned Single Judge. Therefore, the present appeal be dismissed. 9. We have considered the submissions canvased on behalf of learned advocates appearing for the parties. We have also gone through the material produced on record and the decisions on which reliance is placed by learned Advocate appearing for respondent No. 3. 10. In the case of Dr. C.A Shah (supra), the Division Bench of this Court considered the aforesaid issue in detail. The Division Bench recorded the arguments of the concerned parties in para 6 and 7 as under: “6. The learned Advocate General submitted that the order of termination of the petitioner is illegal and arbitrary. It is of penal nature and is passed without following the procedure prescribed under Section 51A of the Act. He further submitted that the respondent-Institute is State’ within the meaning of Article 12 of the Constitution as. The learned Advocate General submitted that the order of termination of the petitioner is illegal and arbitrary. It is of penal nature and is passed without following the procedure prescribed under Section 51A of the Act. He further submitted that the respondent-Institute is State’ within the meaning of Article 12 of the Constitution as. (i) previously M.P Shah Cancer Hospital was administered by the State Government; (ii) after formation of the respondent Institute the Society manages the affairs of the Institute wherein at least 3 Government nominees are required to be appointed by the Society; (iii) it is largely aided by the Government; (iv) Institute is discharging the functions of the State; (v) the teaching staff of the respondent-Institute is governed by the statutory provisions, i.e., Gujarat University Act, 1949. 7. As against this, the learned Advocate appearing on behalf of the respondent submitted that the respondent Institute is not a ‘State’ within the meaning of Ait. 12 and no writ petition is maintainable against it. The respondent is a Society registered under the Societies Registration Act, 1860, and also is a public trust registered under the Bombay Public Trust Act, 1949. The Trust receives large amount by way of donation from the public at large and that the Government institutions are not run by donations. He fervently submitted that let this Charitable Institution be permitted to discharge its functions by proper internal administration so that it can efficiently render proper service to needy persons affected by dreaded disease (Cancer) without any red-tapism and bureaucratic set up.” 10.1 Thereafter, the Division bench considered the constitution of the respondent - institute and observed in para 8 as under: “8. It is admitted that the respondent-Gujarat Cancer & Research Institute came into existence in 1971 and is a registered society under the Societies Registration Act, 1860. The learned Advocate for the respondent had produced on record the Certificate of Registration dated 16th October 1971. The Institution is also registered as a Public Trust and is having Registration No. F-451-AHD. By Articles of Agreement dated 25th January, 1972 an agreement was arrived at between the State of Gujarat, Gujarat Cancer Society (a Society registered under the Societies Registration Act 1860) and the Gujarat Cancer & Research Institute. It was decided to establish a Cancer complex. Under the said agreement the Gujarat Cancer Society, Ahmedabad, transferred the ownership, control and. By Articles of Agreement dated 25th January, 1972 an agreement was arrived at between the State of Gujarat, Gujarat Cancer Society (a Society registered under the Societies Registration Act 1860) and the Gujarat Cancer & Research Institute. It was decided to establish a Cancer complex. Under the said agreement the Gujarat Cancer Society, Ahmedabad, transferred the ownership, control and. management of the cancer complex with all immovable properties including buildings, radio Isotope, kitchen, Dharmashala on certain terms and conditions to the respondent Institute. The Institute had agreed to have at least 3 persons or persons not less than 50% of the total number of members of the governing body of the Institute nominated by the Government as members of the Governing Board of the Institute. In consideration of the said aspect the Government had agreed to pay to the Institute 100% recurring grant-in-aid annually towards running and maintenance of the Institute provided that the total amount shall not exceed the deficit (recurring expenditure of the Institute minus the income). The Government had also agreed to make available to the Institute non-recurring grant for its development and expansion from time to time. The respondent has also produced on record the Rules of the Gujarat Cancer & Research Institute which inter alia provides as under: “Interpretation:- In these rules unless the context otherwise requires: (7) ‘Institute’ means the Gujarat Cancer and Research Institute and includes (I) M.P Shah Cancer Hospital, (2) Gujarat Cancer Research Centre, (3) Jethalal Ambalal Diagnostic Centre, (4) Smt. Rukshmani Balabhai Nuclear Medicine Centre and (5) The Dharmasala-cum-Guest House to be named hereafter and (6) all other allied Units named after different donors. 3. Administration and Management: (1) Subject to the provisions of these rules, the Institute shall be under the control and direction of the Governing Board which shall consist of: (1) (a) three members to be nominated by the Society: (b) three members to he nominated by the Government, and (c) The Director. Provided that to represent other interests, not more thin two additional members may he co-opted by the Governing Board. (2) The members other than the Director shall hold office for a period of three years. Provided that to represent other interests, not more thin two additional members may he co-opted by the Governing Board. (2) The members other than the Director shall hold office for a period of three years. (3) An appointing authority shall have the right by notice in writing to the Governing Board to terminate the appointment of any member appointed by it.” Rule 4 further provides that the Governing Board shall select its own Chairman from amongst its members, other than the Director and the Co-opted members; the Director shall function as Secretary at the meetings of the Governing Board. The Institute is required to frame bye-laws for the general administration and management of the Institute. Rules 19 & 20 provide for funds of the Institute and acceptance of donations. Rules 19 and 20 are as under: “19. Properties and Funds Vested in the Governing Board:- All the existing immovable properties of the society shall vest in the Institute and more particularly the following: (a) Recurring and non-recurring grant made “by the Government, Union or State and/or by any local body including a sum of Rs. 10 lakhs given by the Government as Corpus Fund. (b) Other grants, Donations and Gifts (periodical or otherwise, other than those intended to form the Corpus of the property and funds of the Institute or held for benefit of the Institute. (c) The Income derived from immovable properties and income of the funds vested in the Governing Board and also fees, subscription and other annual receipts, and, (d) All plants and machineries, equipments and instruments (whether Medical, Surgical, Laboratory, Workshop or of any other kind), books and journals furniture, furnishings and fixtures belonging to the Institute. “20. Acceptance of Donations etc: The Institute may accept donations, gifts and subscriptions for specific purposes subject to such terms and conditions, if any, as may be laid down by the Governing Board.” Its accounts are to be audited as provided in Rules 21 & 22. The Institute is further required to submit Annual Report to the Government and to the Gujarat Cancer Society regarding the work of the Institute during the year accompanied by a duly audited balance-sheet.” 10.2 Thereafter the Division Bench considered various decisions rendered by the Hon'ble Supreme Court on the point of Article 12 and thereafter held in para 17 as under: “17. The conspectus of the aforesaid decisions and the facts narrated hereinbelow leave no doubt that the respondent-Institute is not a ‘State’ or ‘Other Authority’ as envisaged by Article 12 of the Constitution of India: (1) The Institute does not owe its existence to any statute. It is creation of contract between the Gujarat Cancer Society and the State Government, therefore it is not a statutory body. (2) It is registered under the Societies Registration Act, 1860, and under the Bombay Public Trusts Act, 1950; (3) Its funds consist oft properties belonging to Gujarat Cancer Society, gifts, donations and also grants by the Government. The Institutions owned by the State are normally not funded by gifts and donations. It is an admitted fact that donations to the Cancer Society are substantial. The Institute is entitled to receive contributions of gifts from any indigenous source without Government sanction; (4) It is administered by the Governing Board consisting of three members nominated by the Gujarat Cancer Society, three members nominated by the Government and by the Director appointed by the Governing Board; (5) It does not enjoy any monopoly status. Any private individual, any society or any public trust can open or start such type of cancer institution at any moment without any hindrance; (6) As per the rules framed by the Institute, the State Government has no power to give any general directions or to have supervision over the functioning of the Institute. Therefore, it is not subject to the directions which may be issued by the Government from time to time; (7) The respondent Institute is not an agency or instrumentality of the Government for carrying out governmental functions. Not only this, but it also should not be forgotten that it is part and parcel of the culture of this country particularly of this I State to maintain Charitable Institutions, piously for the benefit of the public at large. In most of the cases these institutions are autonomous bodies functioning effectively and efficiently mainly with charitable objectives. By making it part of the bureaucratic set-up these Institutions would be affected by cancer which may be a death-blow to this type of charitable activities which are meant for the society at large. It also should be borne in mind that it is easy to destroy any Institution on minor issues but is difficult and painful to establish and sustain it.” 11. It also should be borne in mind that it is easy to destroy any Institution on minor issues but is difficult and painful to establish and sustain it.” 11. Another Division Bench of this Court in the common oral judgment dated 21.09.2011 passed in Letters Patent Appeal No. 446 of 2003 and allied matters, after considering the decision rendered in the case of Dr. C.A Shah (supra), observed in paragraphs 5 and 6 as under: “5. In view of the above referred latest judgment, we are of the considered opinion that the view taken by the Division Bench of this Court in 1992 (1) GLR 687 is just and proper. Subsequently, directly or indirectly, this view is not diluted by this Court by the Apex Court. In that view of the matter, the view taken by the Learned Single Judge is just and proper and there is no substance in these Letters Patent Appeals and writ petition. 6. Learned counsel Mr. S.P Hasurkar appearing for the appellants has vehemently argued and tried to persuade us to make a reference. But in view of the aforesaid reasons and in view of the latest judgment of the Full Bench of this Court, we are not inclined to refer to the matter. We do not find any merit in these matters and all the Letters Patent Appeals las well as Special Civil Application as well as Civil Application are accordingly dismissed. There shall be no order as to costs.” 12. Yet another order is passed by the Division bench of this Court on 22.10.2013 in Letters Patent Appeal No. 1318 of 2012, wherein also the Division Bench, after considering the decision rendered by this Court in the case of Dr. C.A Shah (supra) dismissed the appeal by observing that: “It appears that the aforesaid question has already been decided by a Division Bench of this Court in the case of Dr. C.A Shah v. Gujarat Cancer Research Institute, Ahmedabad, reported in 1992 [1] GLR 687, holding that the above Institute is not a “State” within the meaning of Article 12 of the Constitution of India. It further appears that the above decision has also been followed even in a recent decision dated 21st September, 2011 rendered by a Division Bench of this Court in L.P.A No. 446 of 2003 in the case of Pravinchandra Patel v. Director of Gujarat Cancer Research Institute.” 13. It further appears that the above decision has also been followed even in a recent decision dated 21st September, 2011 rendered by a Division Bench of this Court in L.P.A No. 446 of 2003 in the case of Pravinchandra Patel v. Director of Gujarat Cancer Research Institute.” 13. At this stage, it is required to be noted that Misc. Civil Application (For Review) No. 2880 of 2013 was thereafter filed in Letters Patent Appeal No. 1318 of 2012. The said MCA was also dismissed by the Division Bench by an order dated 28.02.2014, wherein the Division Bench has observed as under: “By this application, it is contended that at the time of hearing of the aforesaid LPA, our attention was not drawn to the fact that subsequent to the passing of the above two Division Bench decisions, the respondent authority has adopted the 6th Pay Commission Report, and, thus, it has become a ‘State’ within the meaning of the Article 12 of the Constitution of India. We are afraid, we are not impressed by such submission. Although an institution can be a ‘State’ within the meaning of Article 12 of the Constitution of India in the matter of discharge of its duty under any statutory provisions, for the purpose of resolving any dispute arising out of the relationship of employer and employee of such an institution, an aggrieved person cannot move the High Court in Article 226 of the Constitution of India on the ground that the employer is a ‘State’ for other purposes. Thus, simply because the respondent Gujarat Cancer & Research Institute adopted the 6th Pay Commission report, such fact will not make the said respondent a ‘State’ for the purpose of resolving the dispute between the employer and the employee. Our attention has also been drawn to the fact that even in the earlier decisions referred to us in our impugned order, the report of the 5th Pay Commission was the subject matter and notwithstanding such fact, the above view was taken by the Division Bench. We, thus, find that there is no error, not to speak of any error apparent on the face of the records, justifying review of our earlier order.” 14. We, thus, find that there is no error, not to speak of any error apparent on the face of the records, justifying review of our earlier order.” 14. The aforesaid order dated 28.02.2014 passed in MCA No. 2880 of 2013 as well as order dated 22.10.2013 passed in Letters Patent Appeal No. 1318 of 2012 were challenged before the Hon'ble Supreme Court by filing Special Leave to Appeal (C) No. 11548 of 2014. However, the said Leave to Appeal was dismissed by the Hon'ble Supreme Court by an order dated 11.08.2014 15. At this stage, it is also relevant to note that while dismissing MCA No. 2880 of 2013, the Division Bench considered the submissions of the concerned applicant that respondent - institute had adopted 6th Pay Commission Report and thus it has become a ‘State’ within the meaning of Article 12 of the Constitution of India. The Division Bench thereafter observed that simply because the respondent - institute adopted 6th Pay Commission Report, such fact will not make the respondent - institute a ‘State’ for the purpose of resolving the dispute between the employer and the employee. The Division Bench further observed that in the earlier decision rendered by the said Division bench, the report of 5th Pay Commission was the subject matter and notwithstanding such fact, the above view was taken by the Division Bench. 16. In view of the aforesaid decisions rendered by this Court and in view of the aforesaid discussion, it is clear that decision rendered by Division Bench of this Court in the case of Dr. C.A Shahl (supra) has been followed in two other cases by the Division Bench of this Court wherein the aspect with regard to acceptance of 5th and 6th Pay Commission Report by the respondent institute has been considered. The appellant has failed to place any subsequent changes in the constitution of the respondent - institute from which it can be said that after the decision rendered by the Division Bench of this Court in the aforesaid three cases, now, the respondent institute can be considered as a ‘State’ within the meaning of Article 12 of the Constitution of India. In absence of any details or material placed before us, we are of the opinion that there is no substance in the submission canvassed on behalf of learned Advocate appearing for the appellant. In absence of any details or material placed before us, we are of the opinion that there is no substance in the submission canvassed on behalf of learned Advocate appearing for the appellant. We are also in agreement with the reasoning recorded by the learned Single Judge while dismissing the petition of the appellant on the ground that respondent No. 3 is not a ‘State’ within the meaning of Article 12 of the Constitution. Hence, present appeal being devoid of any merits, deserves dismissal. 17. In view of the aforesaid discussions, appeal is dismissed. 18. In view of dismissal of main appeal, civil application does not survive. Accordingly, civil application is disposed of.