Ashok Bhushan - (1.) -Heard Sri Vashistha Tiwari, learned counsel, for the petitioner, Sri Siddhartha Singh appearing for respondent Nos. 1 and 2 and Sri Piyush Shukla, learned standing counsel, appearing for respondent No. 3.
(2.) BY this writ petition, the petitioner has prayed for a writ of mandamus directing respondent No. 2 to prepare and send the pension papers of the petitioner to respondent No. 1 forthwith and pay the pension and general provident fund after his retirement. A writ of certiorari has also been prayed for quashing the order dated 22nd November, 1997 of the State Government and the letter dated 10th September, 2004 issued by respondent No. 2. Brief facts necessary for deciding the writ petition are ; the U. P. Council of Sugar Cane Research Society (hereinafter referred to as the Council) is a registered society under the Societies Registration Act, 1860. The Council was earlier under the Department of Agriculture. In the year 1992 it was brought under the control of Cane Commissioner. The State Government took a decision on 15th December, 1976 that Cane Research Organisation be now given an autonomous status and be registered as a society. The Chief Minister was to be the ex-offcio President of the General Body and the Minister of the Cane Development was to be the Vice President. The Director, Sugar Cane and Research Society was to be Secretary. In pursuance of the Government order the Society was registered with the memorandum of association. The Rules and Regulations of Council were also framed and registered. The recruitment rules were also framed governing the recruitment and other conditions of service of the employees. The petitioner was appointed on 19th July, 1979 as Senior Statistical Assistant in the Council. The petitioner was thereafter selected for higher post, namely, Chief Statistical Officer in the Council. A notice was given to the petitioner informing that he shall attain the age of superannuation on 31st August, 2004. Before his retirement the petitioner filed this writ petition praying for a mandamus that respondent No. 2 be directed to prepare the pension papers of the petitioner and send the same to respondent No. 1 for payment of pension and general provident fund to the petitioner after his retirement. A counter-affidavit has been filed both by respondents No. 1 and 2 and the State Government. The respondents No. 1 and 2 in their counter-affidavit have stated that in view of the Government order dated 22nd November, 1997 the petitioner is not entitled for pension and other retiral benefits. A copy of the Government order dated 22nd November, 1997 has been filed, which was written in response to the letter of the Council dated 28th February, 1994, in which it has been stated that the employees of Council are not entitled for all the retiral benefits. In the counter-affidavit it was stated that petitioner has been paid the fund, gratuity and other dues. The stand of respondents No. 1 and 2 in the counter-affidavit is that petitioner is not entitled for payment of pension in view of the Government decision. A rejoinder-affidavit has been filed to the said counter-affidavit in which reference to the resolutions of the governing body dated 12.1.1988, 27/ 28.2.1989, 25.4.1995, 25.11.1997 and 1.8.1998 have been brought on the record pertaining to decisions taken with regard to pension, provident fund etc. A counter-affidavit has also been filed by the State of U. P. stating that petitioner is not entitled for pension. Reference of the Government order dated 22nd November, 1997 has been made in the counter-affidavit. It was further stated that petitioner has already received amount of provident fund, gratuity and leave encashment. It was stated that pension and other retiral benefits was not accepted by the Finance Department and consequently Government order dated 22nd November, 1997 was issued. It was also stated that employees of the Council are not Government servants and the Council is not State within the meaning of Article 12 of the Constitution of India.
(3.) SRI Vashishtha Tiwari, learned counsel for the petitioner, in support of the writ petition, raised following submissions : (i) The Council is State within the meaning of Article 12 it being receiving substantial finance from the State of U. P. and State having deep and pervasive control over the functioning of the Council writ can be issued against respondents No. 1 and 2 under Article 226 of the Constitution. (ii) The recruitment rules have been framed by the governing body with the approval of the State Government and Rule 21 of which Rules provides for provident fund, gratuity and pension. According to Rule 21 same rules on the employees of the Council with regard to provident fund, gratuity and pension are applicable, which are applicable to the employees of the State of U. P., hence the petitioner is fully entitled for payment of pension also. (iii) The pension has been paid to one Suman Rathi wife of Om Prakash Rathi for which the State Government has also issued a letter dated 2nd December, 1994 for payment of all retiral benefits. Certain other employees were also paid pension by the Council. Sri Siddhartha Singh, learned counsel appearing for respondents No. 1 and 2, submitted that Council being a registered society under the Societies Registration Act, 1860, is not a State within the meaning of Article 12 of the Constitution of India. The Council is an autonomous body, hence no writ lies against the Council. It is further contended that pension has not been paid to any employee of the Council and is case of Smt. Suman Rathi pension was paid in view of order of this Court by which the claim was disposed of. The State Government does not provide any finance for payment of pension. No employee of the Council is being paid pension and the claim of the petitioner is without any substance.;