C M SRIVASTAVA Vs. S C E R T
LAWS(DLH)-2007-9-40
HIGH COURT OF DELHI
Decided on September 06,2007

RAKSHA ARORA,C.M.SRIVASTAVA Appellant
VERSUS
S.C.E.R.T. Respondents

JUDGEMENT

HIMA KOHLI, J. - (1.) On 23rd August, 2007, the counsel for the respondent had placed on record a copy of the judgment dated 14th August, 2007 passed by the Supreme Court in the case of Lt. Governor of Delhi and Ors. v. V.K. Sodhi and Ors. in Civil Appeal No.3272/2003. In the aforesaid judgment, the Supreme Court held that the respondent No.1/SCERT is not a "State" or "other authority" within the meaning of Article 12 of the Constitution of India and for that reason concluded that normally it is not amenable to the jurisdiction of the High Court under Article 226 of the Constitution of India. While holding so, the Supreme Court set aside the order and judgment dated 19th May, 2002 passed by a Division Bench of this Court in CWP No.3693/1998 entitled V.K. Sodhi v. Lt. Governor of Delhi.
(2.) Counsel for the petitioner states that the aforementioned judgment does not come in the way of the petitioner in seeking the relief as prayed for in the present writ petition, namely, his entitlement to claim retirement at the age of 62 years as also for payment of all salary allowances and consequential benefits for the reason that the Supreme Court has not discussed the powers vested on this Court under Article 226 of the Constitution of India and has instead confined itself to the issue as to whether SCERT is "State" or "other authority" under Article 12 of the Constitution of India. He further submits that this Court is bound by the judgment rendered by a Division Bench of this Court in the case of Dr. T.C. Sharma v. Lt. Governor of Delhi in WP(C) No.48/1999 decided on 15th September, 1999, wherein the Court after holding that the SCERT is not an instrumentality of a State, observed that in the given facts and circumstances, the High Court could step in to protect a citizen who is wronged by a State, an instrumentality of a State, a company, or a cooperative society or an association or body of individuals, whether incorporated or not, or even an individual, as the powers of the High Court under Article 226 of the Constitution of India are vast. Counsel for the petitioner also states that the Supreme Court has not given any finding on the merits of the matter and has left all other issues open for consideration which this Court can decide. He further submits that the petitioners in Civil Appeal No.3272/2003 have preferred a review petition before the Supreme Court and this Court ought to await the outcome thereof.
(3.) On the other hand, counsel for the respondent has taken the Court through the aforesaid judgment passed by the Supreme Court on 14th August, 2007, and submits that the Supreme Court took into consideration as to whether in view of the functions entrusted to SCERT, the rules and by-laws that govern it and the financial position enjoyed by it, it could be said to be financially, functionally and administratively dominated by or under the control of the Government. After taking into consideration the judgments rendered in the cases of Chander Mohan Khanna v. NCERT and Ors. reported as (1991) 4 SCC 578 and Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. reported as (2002) 5 SCC 111, the Supreme Court held as below : "11. The two elements, one, of a function of the State, namely, the coordinating of education and the other, of the Council being dependent on the funding by the State, satisfied two of the tests indicated by the decisions of this Court. But, at the same time, from that alone it could not be assumed that SCERT is a State. It has to be noted that though finance is made available by the State, in the matter of administration of that finance, the Council is supreme. The administration is also completely with the Council. There is no governmental interference or control either financially, functionally or administratively, in the working of the Council. These were the aspects taken note of in Chander Mohan Khanna (supra) to come to the conclusion that NCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India. No doubt, in Chander Mohan Khanna (supra), the Bench noted that the fact that education was a State function could not make any difference. This part of the reasoning in Chander Mohan Khanna (supra) case has been specifically disapproved by the majority in Pradeep Kumar Biswas (supra). The majority noted that the objects of forming Indian Institute of Chemical Biology was with the view of entrusting it with a function that is fundamental to the governance of the country and quoted with approval the following passage in Rajasthan SEB v. Mohan Lal (1967) 3 S.C.R. 377) : "The State, as defined in Article 12, is thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people." The majority then stated: "We are in respectful agreement with this statement of the law. The observations to the contrary in Chander Mohan Khanna v. NCERT relied on by the learned Attorney-General in this context, do not represent the correct legal position." 14. As we understand it, even going by paragraph 40 of the judgment in Pradeep Kumar Biswas (supra), which we have quoted above, we have to consider the cumulative effect of all the facts available in the case. So considered, we are inclined to hold that SCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India. As we see it, the High Court has not independently discussed the relevant rules governing the functioning and administration of SCERT. It has proceeded on the basis that in the face of Pradeep Kumar Biswas (supra) decision, the decision in Chander Mohan Khanna (supra) must be taken to be overruled and no further discussion of the question is necessary. But, in our view, even going by Pradeep Kumar Biswas (supra), each case has to be considered with reference to the facts available for determining whether the body concerned is a State or other authority within the meaning of Article 12 of the Constitution of India. So considered, we find that the Government does not have deep and pervasive control over the working of SCERT. It does not have financial control in the sense that once the finances are made available to it, the administration of those finances is left to SCERT and there is no further governmental control. In this situation, we accept the submission on behalf of the appellants and hold that SCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India. After all, the very formation of an independent society under the Societies Registration Act would also suggest that the intention was not to make the body a mere appendage of the State. We reverse the finding of the High Court on this aspect. (emphasis added) 15. Once we hold that SCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India, we do not find ourselves persuaded to issue any such direction as sought for by the writ petitioners (the respondents herein). In fact, it becomes unnecessary to go into the question of validity of the amendment of Regulation 67, the effect of the uniform non implementation of Regulation 67 as it stood earlier, and the effect of the absence of a challenge in the writ petition to the amendment to the Regulation itself. It is also not necessary to go into the question whether SCERT should seek the permission of the Government for incurring additional expenditure in terms of service benefits to its employees. (emphasis added) 16. It appears to us that in the case of bodies like SCERT, the court cannot ignore the financial implications of implementing the directions that it is called upon to issue. The object of SCERT is laudable and it has to coordinate and promote education in the State. Its resources are limited and the main income is by way of grant from the State Government. When SCERT pleads that it cannot spend the whole of the grant or a major portion of the grant in paying salaries and emoluments to its employees and if it does so, that may tend to frustrate the very object with which the society was formed, it is an argument that has to be considered weighty by a court called upon to exercise jurisdiction under Article 226 of the Constitution of India. A court cannot issue a direction which would tend to frustrate the very object with which a society like SCERT is formed or a body like SCERT is created. After all, there may be a point of time in a welfare State where the right of the employees must be subservient to the right of the society. In the matter of education, surely, the interests of the society at large should prevail and issue of any direction that may endanger such interests must be done with extreme caution and only after careful deliberation. (emphasis added) 17. In our view that SCERT is not a State or other authority within the meaning of Article 12 of the Constitution and normally not amenable to the jurisdiction of the High Court under Article 226 of the Constitution of India, we do not find it necessary to pursue further, these other aspects. Suffice it to say, that the direction issued by the High Court cannot be sustained." (emphasis added);


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.