G. Bhattacharjee, Dr. vs Council of Scientific and Industrial Research

B.C. Mitra, J.—The Petitioner was appointed in the pool for temporary placement of Indian scientists and technologists on certain terms and conditions. He was to get a salary of Rs. 600 per month in addition to dearness and other allowances as admissible to Class I officers of the Council of Scientific and Industrial Research. He was also entitled to draw travelling allowance in accordance with the rules for journey undertaken by Government servants for official purposes. By the letter of appointment dated May 10, 1961, which is included in annEx. ''A'' to the petition, the Petitioner was informed that he had been selected for appointment in the pool for temporary placement of Indian scientists and technologists. The other conditions of appointment as set out in the letter are as follows:

(1) The appointment in the pool will be until the Petitioner was absorbed in a suitable post on a more or less permanent basis, and during this appointment the Petitioner will be free to apply for any suitable post in India.

(2) The Petitioner to take an path of allegiance to the Constitution of India in a form enclosed.

(3) The Petitioner not to apply for or obtain a patent for any invention based on research undertaken by him during his tenure in the pool except with the permission of the Diredctor General, Council of Scientific and Industrial Research.

(4) The Petitioner may be attached or seconded to a Government department, an industrial enterprise, national laboratory, university or scientific or technical or other institution or organisation in India in accordance with his qualification and experience.

The Petitioner''s educational qualifications include a degree of Master of Science in Applied Chemistry and Doctor of Philosophy (Science) in Biochemistry from the University of Calcutta. Besides the University degrees, the Petitioner is the holder of other academic distinctions in the shape of research scholarships and fellowships.

The Petitioner''s appointing authority is the Council of Scientific and Industrial Research (Respondent No. 1) which is a society registered under the Registration of Societies Act, 1860. The Petitioner''s contention is that the Respondent No. 1 is an authority under the control of the Government of India within the meaning of Articles 12 and 308 of the Constitution.

On July 21, 1961, the Petitioner was posted as a Pool Officer at the All India Institute of Medical Science, New Delhi, and on December 6, 1961, he was posted as a Pool Officer at the Central Drug Research Institute, Lucknow. Thereafter, on November 26, 1963, the Petitioner was posted as a Pool Officer at the Indian Institute of Biochemistry of Experimental Medicine, Calcutta.

By a letter dated August 3, 1964, the Respondent No. 2 terminated the Petitioner''s service with effect from the service of the order on the Petitioner. The order terminating the Petitioner''s service was made under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949. The order provided that the Petitioner would be paid a sum equivalent to the amount of his pay plus allowances for one month which is the period of notice due to him. It is this order which is the subject-matter of challenge in this application.

Mr. A.K. Dutt, learned Advocate for the Petitioner, contended that although the Petitioner was appointed as a Pool Officer in the Council of Scientific and Industrial Research, he was an employee of the Central Government holding a post of a gazetted officer, Class I, and for that reason Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, had no application and, therefore, the Petitioner''s dismissal under that Rule was illegal. It was argued that the termination of the Petitioner''s service was made under Rule 5 of the said Rules by the memorandum dated August 3, 1964, in which it was clearly stated that the order of termination was made under the said Rule 5. Mr. Dutt further argued that by Bye-law 74 of the Bye-laws of the Respondent No. 1, the Central Civil Services (Classification, Control and Appeal) Rules, 1957, and the Central Civil Services (Conduct) Rules, 1955 were applicable to all employees of the Respondent No. 1 and, therefore, the termination of service of the Petitioner could not be made under the provisions of the Central Civil Services (Temporary Service) Rules, 1949.

There is hardly any force in this contention of Mr. Dutt. Even if it is held that the Petitioner was holding a civil post under the Government of India, he must be regarded as a person to whom the Central Civil Services (Temporary Service) Rules, 1949, applied. Sub-rule (2) of Rule 1 is as follows:

Subject to the provisions of Sub-rule (3) these rules shall apply to all persons who hold a civil post under the Government of India and who are under the rule making control of the Governor-General, but who do not hold a lien on any post under the Government of India or any provincial Government.

Sub-rule (3) specifies the classes of Government servants to whom these Rules do not apply. The Petitioner does not come within the scope of any of the exceptions specified in Sub-rule (3). Mr. Dutt, however, argues that the Petitioner comes within the exceptions under Sub-rule (3) as he got his pay out of the contingencies as contemplated by Clause (e) of Sub-rule (3) of the said Rules. I cannot accept this contention of Mr. Dutt as there is nothing in the materials before me to show that the Petitioner''s remuneration was paid out of contingencies. In my view, if the Petitioner is regarded as a person holding a civil post under the Central Government, it must be held that the Central Civil Services (Temporary Service) Rules, 1949, are applicable.

In support of his contention Mr. Dutt firstly relied upon a decision of the Supreme Court-- Jagdish Mitter Vs. The Union of India (UOI), . In that case, in the notice of termination of service of a temporary servant, it was stated that the employee concerned was found un-desirable to be retained in the Government service and was, therefore, discharged. It was held that where the termination of the service of the temporary servant was in form and in substance no more than his discharge effected under the terms of the contract or the relevant Rule, such termination could not be regarded as dismissal of the temporary servant, and in such a case the protection of Article 311 would not be available to the temporary servant. It was further held that as the order of discharge in that, case referred to the fact that the servant was found undesirable to be retained in Government service, it expressly cast a stigma on the servant and in that sense it must be held to be an order of dismissal and not a mere order of discharge. This decision, to my mind, is of no assistance to the Petitioner in this case as the order terminating the services of the Petitioner merely stated that His services were terminated under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949. There was no stigma on the Petitioner nor any reflection-on his merit as a Government servant. In so far as the order is straightforward order of discharge under the said Rule, the decision of the Supreme Court is entirely against the contention of Mr. Dutt.

Reliance was also placed by Mr. Dutt on another decision of the Supreme Court-- Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon, Pandu, etc., . In that case services of two Railway employees were terminated and this termination was challenged on the ground that Rule 148 of the Rules in the Railway Establishment Code was invalid as it violated Article 311 of the Constitution. It was held that as the Rules authorised the Railway administration to terminate the services of all permanent servants to whom the Rules applied, merely on giving notice for the specified period or on payment of salary in lieu thereof, they were invalid as they were inconsistent with the provisions of Article 311(2) and that termination of a permanent servant''s tenure which was authorised by the impugned Rides was no more and no less than his removal from service and, therefore, Article 311(2) applied to such cases, and as the Rules did not require compliance with the procedure prescribed by Article 311(2), they must be struck down as invalid. This decision, to my mind has no application to the facts of this case, firstly because Article 311(1) has no application as the Petitioner''s case is, as set out in ground 1, that he was appointed by the Vice-President of the Respondent No. 1 and the order of termination of his service was also from the Vice-President. Article 311(2) also has no application as the Petitioner was a temporary employee and his service was terminated on the basis of the Rules, and it cannot be said to be a case of removal or discharge from service so as to attach a stigma to such removal or discharge. Furthermore, in this case there is no challenge to the constitutional validity of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949.

The next contention of Mr. Dutt was that the Central Civil Services (Temporary Service) Rules, 1949, could not be invoked by the Respondent No. 1 and the order terminating the Petitioner''s service under Rule 5(a) of the said Rules could not be validly made as the said Rule had not been adopted by the Respondent No. 1. It was argued that under Bye-law 74 of the Bye-laws of the Respondent No. 1, the Central Civil Services (Classification, Control and Appeal) Rules, 1957, and the Central Civil Services (Conduct) Rules, 1955, were made applicable to all employees of the Respondent No. 1 and, therefore, Central Civil Services (Temporary Service) Rules, 1949, could not be invoked for the purpose of terminating the service of the Petitioner. There is no force in this contention of Mr. Dutt. Quite apart from the fact that Central Services (Temporary Service) Rules, 1949, provide that the said Rules apply to all persons who hold civil posts under the Government of India. Clause (viii) of the explanation to Rule 13 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, make the position absolutely clear. By Sub-clause (b) of Clause (viii) an order for termination of a temporary Government servant can be made in accordance with Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949. Termination of the service of a temporary Government servant under Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, is expressly authorised by Sub-clause (b) of explanation to Rule 13 of the Central Civil Services'' (Classification, Control and Appeal) Rules, 1957. This contention of Mr. Dutt must, therefore, fail.

The next contention of Mr. Dutt was that the Respondent No. 1 was a department of the Ministry of Education of the Government of India as its activities were controlled and regulated by that Ministry. It was argued that although the Respondent No. 1 was a society registered under the Societies Registration Act, it nevertheless should be treated to be a limb of the Central Government and appropriate writs should be issued against the Respondent No. 1. This argument was advanced by Mr. Dutt in view of a judgment of this Court in Bikash Chatterjee v. Director-General of Health Services and Ors. Matter No. 166 of 1964, the judgment on appeal since reported in (1968) 73 C.W.N. 249. In that case the same question was raised, namely, whether the Council of Scientific and Industrial Research was a department of the Central Government and, as such, amenable to the writ jurisdiction of this Court. It was held that the Council of Scientific and Industrial Research could not be held to be a public body, however close might be its association with a Ministry of the Central Government and even though its activities were controlled by the Ministry of Education, which exercised supervisory jurisdiction. It was also held that the Respondent No. 1 could not be treated to be an adjunct of a Ministry of the Central Government so as to make its employees, civil servants or holders of civil posts under the Government, entitled to the benefit of Article 311(2) of the Constitution and, therefore, a writ of mandamus could not be issued against the Council of Scientific and Industrial Research. Mr. Dutt, however, argued that by reason of the decision of the Supreme Court in Rajasthan State Electricity Board, Jaipur v. Mohan Lal and Ors. Unreported judgment on Civil Appeal No. 466 of 1966, since reported in Rajasthan State Electricity Board, Jaipur Vs. Mohan Lal and Others, , it should be held that the Respondent No. 1 was an authority amenable to the writ jurisdiction of this Court. He submitted that Article 12 of the Constitution defined ''the State'' to include the Government and the Parliament of India and the Government and the Legislature of each State and all local or other authorities within the territory of India or under the control of the Government of India. That being the definition of ''the State'', Mr. Dutt submitted that the Respondent No. 1 must be held to be an authority under the control of the Government of India and, as such, amenable to the writ jurisdiction of this Court. In the Rajasthan State Electricity Board''s case Supra, the Electricity Board was a body corporate constituted under the Electricity (Supply) Act, 1948. The Respondents were permanent employees of the State Government holding posts of foremen in the electrical and the mechanical department and upon constitution of the Board the services of the Respondents along with some other Government servants were provisionally placed at the disposal of the Board. Some of the other Government servants having been promoted by the Board, the Respondent No. 1 claimed similar promotion or at least to be considered for promotion. But this request was turned down and thereupon the Respondent No. 1 filed a petition under Articles 226 and 227 of the Constitution. One of the contentions raised before the Supreme Court on behalf of the Electricity Board was that the Board was not a ''State'' within the definition of Article 12 of the Constitution and, therefore, no writ could be issued against it. This contention was turned down by the Supreme Court and it was held that a writ could be issued against the State Electricity Board. Relying upon this decision, Mr. Dutt argued that since the State Electricity Board of Rajasthan was held to come within the definition of ''the State'' in Article 12 of the Constitution, the Respondent No. 1 in this case also must be held to come within the definition of ''the State'' in that Article, although it was a society registered under the Societies Registration Act.

Mr. Gouri Mitter, appearing for the Respondent No. 1, on the other hand, argued that the decision of the Supreme Court in Rajasthan State Electricity Board''s case Supra had no application at all to the facts of this case and also that the decision was entirely against the contention of Mr. Dutt. He argued firstly that the Supreme Court had held in that case that the words ''other authorities'' in Article 12 of the Constitution were wide enough to include all bodies created by statutes on which powers were conferred to carry on governmental or quasi-governmental functions. Mr. Mitter submitted that the Supreme'' Court made it clear that authorities created by a statute and functioning within the territory of India OP under the control of the Government of India came under the definition of ''other authorities'' in Article 12 of the Constitution. But in this case, it was argued, the Respondent No. 1 was not an authority created by statute, but was a society registered under the Societies Registration Act. The position of the Respondent No. 1, it was argued, was the same as that of a public or a private company incorporated under the Indian Companies Act. A company incorporated under the Indian Companies Act or a society registered under the Societies Registration Act, Mr. Mitter argued, could not be held to be a statutory authority, which by virtue of the decision of the Supreme Court came under the definition of ''other authorities'' in Article 12 of the Constitution.

The next ground of distinction of the instant case from the facts in the Rajasthan State Electricity Board''s case Supra, Mr. Mitter argued, was that in the latter case the charge was one of violation of fundamental rights under Articles 14 and 16 of the Constitution. There was no allegation in the instant case, it was argued, of violation of any of the fundamental rights of the Petitioner. All that the Petitioner complains of, it was argued, was that Article 311 of the Constitution had been violated.

The third ground of distinction, Mr. Mitter submitted, was that the definition of ''the State'' in Article 12 of the Constitution was considered by the Supreme Court because there were allegations of the violation of the fundamental rights. It was argued that the definition of ''the State'' in Article 12 was confined to the definition of ''the State'' for the purposes of Pt. III of the Constitution. ''State'' has also been defined in Article 308 in Pt. XIV of the Constitution. Similarly ''State'' has also been defined in Article 36 which is in Pt. IV of the Constitution to have the same meaning as in Pt. III. Therefore, Mr. Mitter argued, the definition of ''the State'' in Article 12 of the Constitution which was considered by the Supreme Court in the Rajasthan State Electricity Board''s case Supra, in which charges of violation of fundamental rights were made, could not be applied to the instant case in which there was no charge of violation of fundamental rights, but the only charge was that of violation of Article 311 of the Constitution.

In my view, the contentions of the Learned Counsel for the Respondents must prevail. The Respondent No. 1 cannot be held to be a limb of the Government or an adjunct of a department of the Government so as to make it amenable to the writ jurisdiction of this Court. Admittedly, this is a society registered under the Societies Registration Act and such a society cannot be held to be an authority created by statute upon which duties and obligations have been imposed by the statute creating it. Merely because the Respondent No. 1 had adopted the Central Civil Services (Classification, Control and Appeal) Rules, 1957, and the Central Civil Services (Conduct) Rules, 1955, it cannot be held to be a statutory authority amenable to the writ jurisdiction of this Court.

The reasons for holding that the Council of Scientific and Industrial Research is not an authority against whom a writ under Article 226 can run have been discussed at length by this Court in the judgment in Bikash Chatterjee v. Director-General of Health Services and Ors. Supra, and for those reasons it must be held that no writ can be issued against the Respondent No. 1.

There is one other point to be disposed of before concluding. The Petitioner''s case is that he was appointed by the Vice-President of the Respondent No. 1 and his services were also terminated by the Vice-President. It is nowhere alleged that he was appointed by the Ministry of Education or any other department or office of the Central Government. But eyen if the Petitioner is held to be a Government servant, he would be in no better position. If he is treated to be a Government servant, he would still be a temporary Government servant to whom Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, applied. That Rule had been made expressly applicable to temporary servants under the provisions, discussed earlier, of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, which, according to Mr. Dutt, had been adopted by the Respondent No. 1 and must, therefore, be held to be applicable to the Petitioner. It is thus clear that even if Mr. Dutt''s contention that the Petitioner is a member of the Civil Service of the Union or a member of an All-India Service or holds a civil post under the Union, is accepted, he would still be a temporary employee subject to Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, and for that reason his temporary service must be held to be liable to be terminated by a notice prescribed by that Rule.

For the reasons mentioned above this application fails and is dismissed. The Rule is discharged. Each party to pay its own costs.