Girdnari Lal vs Central Council for Research

Arun Kumar Goel, J.—Admitted facts of this case are that petitioner applied in response to an Employment Notice for the post of Urdu

Assistant (Translator) with the Central Council for Research in Unani Medicine (hereinafter referred to as the `Central Council'). He appeared for

written test and thereafter has appeared in the viva voce. He has not been selected. Post was against readvertised. After his nonselection,

petitioner filed SWP No. 145/96 which came up for consideration before the Court and was disposed of on 2.12.1999. This order of the Court

was in the following terms :

........................

As no reply has been filed by the respondents, this petition is disposed of with a direction that the claim of the petitioner be considered within a

period of two months from the date a copy of this order is made available by the petitioner to the respondentauthorities, and he be informed

regarding the result of the consideration. In case this is not done within the above stipulated period, then it will be presumed that the respondents

have got nothing to say in the matter, and the petitioner will be well within his rights to claim a letter of appointment from the respondents.

Disposed of accordingly.

Pursuant to this direction, Central Council passed Memorandum, copy whereof is placed on the file as AnnexureR, on 14.1.2000. As per this

communication, on receipt of the copy of judgment dated 2.12.1999 (supra) a Committee was constituted by the Central Council for the purpose

of considering the claim of petitioner Girdhari Lal. This Committee after deliberations came to the conclusion that the claim of the petitioner did not

merit consideration as he was not found suitable for the post in question. As such he was informed accordingly vide AnnexureR.

In the aforesaid background this writ petition has been filed seeking a Mandamus to the respondents to appoint the petitioner for the post of

Urdu Translator advertised on 6.12.1993 and subsequently for which this Court vide its order dated 2.12.1999 directed the respondents to

consider the case of the petitioner. Nonselection of the petitioner, according to him, cannot be sustained because no criteria was fixed for selection

to the post in question as to what were the points fixed for written test and of viva. In the absence of such rules/guidelines, the entire selection

process is vitiated.

Petitioner further alleges that he having not been called when he applied in response to 2nd and 3rd advertisement is an act of mala fide

intention. Reason given for his such apprehension is that respondents appointed somebody from their own kith and kin or some unterior

consideration, thus Article 16(4) of the Constitution of India stands infringed. Direction of the court as aforesaid was not followed by the

respondents. He further stated that being single scheduled caste candidate he was entitled to be appointed because he was duly qualified and

possessed the minimum qualification prescribed for the post in question. In this background a prayer is made for allowing the writ petition.

Respondents were put to notice. They have filed detailed counter. Their preliminary objection is that there is no violation of any legal or

fundamental right of the petitioner so as to enable him to maintain this writ petition. It is also their case that the Central Council is not State within

the meaning of Article 12 of the Constitution of India and is thus not amenable to writ jurisdiction. According to them, this Central Council is a

Society registered under the Societies Registration Act, XXI of 1860. It has its own Memorandum of Association, Rules, Regulations and Byelaws

governing its daytoday affairs as well as for its management. Object of this Council is formulation of its ams and patterns of Research on scientific

lines in Unandi Medicine. It undertakes several kinds of programmes and activities connected with the coordination of research, extension of

service and training, initiate, aid, develop and coordinate scientific research in different aspects, fundamental and applied of Unani Medicine and to

promote and assist institutions for research for the study of diseases, their prevention, causation and remedy. They have prayed for dismissal of this

writ petition on this short ground alone. There being no cause of action available to the petitioner to maintain the writ petition is another ground

pleaded by the respondents for its dismissal.

While admitting the claim of the petitioner that he belongs to Scheduled Caste category, it is pleaded by respondents that he graduated in 3rd

division and thus the claim of the petitioner having obtained quite satisfactory marks in Urdu and English, as claimed by him, was denied. Petitioner

was interviewed on 2.5.1994 by the Committee as such the claim of the petitioner that the same was eye wash was denied. Their further case is

that Committee after interviewing all the candidates did not recommend any one for appointment. At the same time this Committee recommended

that the post may be readvertised. According to respondents, suitability of a candidate like petitioner had to be judged both on the basis of his

written as well as viva voce test. In view of the stand of the respondents at page 6 of the counter, which is relevant for the purpose of this writ

petition and is in the following terms :

.................

After interviewing the candidates, the selection Committee which was constituted for the selection to the post of Urdu Assistant did not

recommend any candidate for appointment and the Committee recommended that the said post may be readvertised as no suitable candidate was

found....."".

Thus it is clear that petitioner was not the only candidate when he went for written test and thereafter for his viva.

This submission appears to have been made purposely with a view to gain advantage of the Instructions issued by the Government of India

relied upon by Shri Kalgotra at the time of hearing, while claiming relaxation in case of Scheduled Caste candidates.

In view of the aforesaid background Shri Kalgotra, learned Counsel for the petitioner, submitted that claim of the Central Council that it is not

amenable to writ jurisdiction being not a State within the meaning of Article 12 of the Constitution of India, cannot be accepted as, according to

him, it is only the High Court who can issue high prerogative writs. According to him, this matter attended attention even in the Constituent

Assembly while framing the Constitution of India. As such plea to contrary cannot be sustained. Regarding reservation, Shri Kalgotra submitted

that his client was the only candidate, therefore, there was no question of his being not selected when he appeared in viva on 2.5.1994 before the

Committee constituted for the purpose by the Central Council.

On the other hand Shri Ropinder Singh, learned Counsel for the respondents, has controverted all the pleas urged on behalf of the petitioner.

According to him, his clients are not amenable to writ jurisdiction as it is an autonomous body, being a Society registered under the Societies

Registration Act, XXI of 1860 and manages its affairs of its own without there being any pervasive control of the Union of India, in its daytoday

affairs as well as its management. Simply because funds are coming from Union of India will not make his client a `State' for the purpose of Article

12 of the Constitution of India and thus he has prayed for dismissal of the writ petition. Regarding claim of the petitioner being meritorious he stated

that it is a matter of self praise although not only petitioner but all other candidates were not found suitable by the Committee, as is evident from the

stand of the respondents extracted hereinabove. Plea of mala fide has also been denied by the respondents as according to them it is illfounded

without any basis. Shri Rupinder Singh, learned Counsel for the respondents, has pointed out that this writ petition needs to be rejected on the sole

ground that though serious allegations have been made on facts without those being supported by an affidavit in accordance with law and

according to him, this submission is not without meaning.

After having considered respective submissions on behalf of the parties, last submission of Mr. Singh is being taken up first of all. In case

averments made in the writ petition are correct it will have serious repercussions and he may be entitled to some relief. When a reference is made

to the affidavit it is neither in consonance with the writ Rules of the Court nor is in accordance with the provisions of Order 19 of the Code of Civil

Procedure. Least that could be done was to have modelled it on the lines of Order 19 CPC. For ready reference this affidavit is extracted

hereinbelow:

In the Hon'ble High Court of J&K at Jammu.

Girdhari Lal v. Central Council for Research and others.

In the matter of : Affidavit in support of writ petition.

....

I, Girdhari Lal age 34 yrs. s/o Sh. Ram Saran r/o Sajatpur, Tehl. R.S. Pura, Distt. Jammu, do hereby solemnly affirm as under :

(1) That the accompanying writ petition has been drafted by my counsel on my instructions.

(2) That I take each and every contents of the petition on solemn affirmation, however, the same have not been reproduced to avoid repetition.

(3) That the annexures annexed with the writ petition are true copies of their originals.

Sd/

Deponent

Verification :

Verified at Jammu on this 1st day of Feb. 2000, that the statement made above is true and correct to the best of my knowledge and nothing has

been concealed therein.

Sd/

Deponent.

This omission is purposeful. Reason being that in case averments made in the writ petition are found to be false, deponent can be dealt with. This

also assumes significance in the context of plea of the petitioner that respondents have not selected the petitioner nor he was called for interview in

response to his application in 2nd and 3rd advertisement ""with mala fide intention and appointed somebody from their own kith and kin or ulterior

consideration"", thus it is clear that this affidavit cannot be looked into for any purpose. In this behalf it may be appropriate to mention that in case of

a writ not only facts are to be pleaded but those are required to be supported with a lawful and proper affidavit. Allegations of mala fide cannot be

looked into in the absence of proper affidavit. For taking this view reliance is being placed on a decision of this Court reported as Bhim Singh v.

D.D. Thakur and other connected cases, 1987 JKLR 369. To similar effect is a Division Bench of this Court in the case of Union of India v. Col.

(Dr.) Jiban Chandra Saha, LPA (SW) 2001(3) SCT 309 (J&K) (DB) : 740/1999, dated 12.9.2000 .

From the averments made in the counter it is clear that petitioner was not the sole candidate who had appeared at the time of interview. Its

tenor suggests that there were number of candidates, who had appeared with him and none of them was found suitable, therefore, committee

recommended re advertisement of the post in question. In the face of this position petitioner cannot be allowed benefit of exemption claimed by

him on the basis of Annexures S&T based on Government of India Instructions in that behalf. As such this plea is also rejected.

After having examined the respective submissions as well as the Memorandum of Association and Rules/Regulations and Byelaws of the

Central Council, I am satisfied, for the reasons recorded hereinabove as well as on the basis of judicial precedents, that it is not a State within the

meaning of Article 12 of the Constitution of India and, therefore, is not amenable to writ jurisdiction of this Court.

A perusal of the aforesaid memorandum etc. clearly suggests that the Union of India has no pervasive control in its affairs with a view to

achieve the object for which it has been constituted and registered as a Society under the Societies Registration Act (supra). It is totally

independent in that sphere, therefore, it cannot be said that Union of India has got any pervasive control so far its affairs are concerned, muchless

to interfere with its objective in any manner whatsoever.

Now reference is being made to the decisions relied upon on behalf of the parties.

(i) In the case of Sabhajit Tewary v. Union of India and others, AIR 1975 Supreme Court 1329, a Constitution Bench while considering other

authorities within the meaning of Article 12 of the Constitution of India held that Council of Scientific and Industrial Research is not an authority

within the meaning of Article 12. This case is nearer to the facts of the present case when aims and objects and well as purpose of creation of

Central Council respondent No. 1, is examined in the light of counter of respondent No. 1. What is relevant for the purpose of present case is

extracted hereinbelow :

Extracting the features as aforesaid, it was contended that these would indicate that the Council of Scientific and Industrial Research was really

an agency of the Government. This contention is unsound. The Society does not have a statutory character like the Oil and Natural Gas

Commission, or the Life Insurance Corporation or Industrial Finance Corporation. It is a Society incorporated in accordance with the provisions of

the Societies Registration Act. The fact that the Prime Minister is the President or that the Government appoints nominees to the Governing Body

or that the Government may terminate the membership will not establish anything more than the fact that the Government takes special casee that

the promotion, guidance and cooperation of scientific and industrial research, the institution and financing of specific researches, establishment or

development and assistance to special institutions or departments of the existing institutions for scientific study of problem affecting particular

industry in a trade, the utilisation of the result of the researches conducted under the auspices of the Council towards the development of industries

in the country are carried out in a responsible manner.

...................

For these reasons we are of opinion that the Council of Scientific and Industrial Research is not an authority within the meaning of Article 12 of

the Constitution. The writ petition is dismissed.

(ii) In the case of P.K. Ramachandra Iyer and others v. Union of India and others, AIR 1984 Supreme Court 541, it was held that Indian Council

of Agricultural Research is other authority within the meaning of Article 12 of the Constitution of India and thus writ was maintainable against it. On

facts it was found that the Indian Council of Agricultural Research came into existence as a department of the Government, continued to be an

attached Office of the Government, even though it was registered as a Society under the Societies Registration Act and wholly financed by the

Government. Thus this Council being almost an inseparable adjunct of the Government of India having an outward form of being a Society, it could

be styled as a Society set up by the State and, therefore, would be an instrumentalist of the State. This is not the situation in the present case.

(iii) In the case of Tekraj Vasandi alias K.L. Basandhi v. Union of India and others, AIR 1988 Supreme Court 469, it was held that the Institute of

Constitutional and Parliamentary Studies registered under the Societies Registration Act, 1860, is not the State within the meaning of Article 12 of

the Constitution of India.

(iv) In the case of Vidya Dhar Pande v. Vidyut Grih Siksha Samiti and others, AIR 1989 Supreme Court 341, while considering the case of

Higher Secondary School run by private Trust, receiving 100% grant from the Government, it was held that it is amenable to writ jurisdiction. This

School was governed by M.P. Madhyamik Shiksha Adhiniyam (23 or 1965), Regulations framed under Section 28(2)(d) were held to be

statutory in nature. In these circumstances, the appeal was allowed before the Supreme Court. This decision has no applicability to the case under

consideration.

(v) In the case of Vijay Singh v. Wadia Institute of Himalayan Geology Society, 189 Lab I.C. NOC 172, while considering a case of Society

registered under Societies Registration Act, under overall control and supervision of Central Government and adopting Central Govt.'s Rules and

Regulations for its day to day functioning and was fully funded by Central Government, it was held to be an authority within the meaning of Article

12 of the Constitution of India, thus amenable to writ jurisdiction.

At the risk of repetition it may be observed here that in the instant case respondent No. 1 is a Society registered under Societies Registration

Act having not only its own Memorandum of Association but also Rules, Regulations and Byelaws including those relating to recruitment etc. Thus

this decision in the case of Vijay Singh v. Wadia Institute (supra) again does not improve the case of the petitioner in any manner whatsoever.

In Chander Mohan Khanna v. The National Council of Educational Research and Training, 1999(1) SCT 100 (SC) : AIR 1992 Supreme

Court 76 , it was held that the National Council of Education Research and Training is not a State within the meaning of Article 12 of the

Constitution of India. What is relevant for the purpose of present case is extracted hereinbelow :

Art. 12 should not be stretched so as to bring in every autonomous body which has some nexus with the Government within the sweep of the

expression `State'. A wide enlargement of the meaning must be tempered by a wise limitation. It must not be lost sight of that in the modern

concept of Welfare State, independent institution, Corporation and agency are generally subject to State Control. The State control does not

render such bodies as `State' under Article 12. The State control, however vast and pervasive, is not determinative. The Financial Contribution by

the State is also not conclusive. The combination of State aid coupled with an unusual degree of control over the management and policies of the

body, and rendering of an important public service being the obligatory functions of the State may largely point out that the body is `State'. If the

Government operates behind a corporate veil, carrying out government activity and governmental functions of vital public importance, there may be

little difficulty in identifying the body as `State' within the meaning of Article 12 of the Constitution.

...............

The object of the NCERT as seen from the above analysis is to assist and advice the Ministry of Education and Social Welfare in the

implementation of the Governmental policies and major programmes in the field of education particularly school education. The NCERT

undertakes several kinds of programmers and activities connected with the coordination of research extension services and training, dissemination

of improved educational techniques, collaboration in the educational programmes. It also undertakes preparation and publication of books,

materials, periodicals and other literature. These activities are not wholly related to Governmental functions. The affairs of the NCERT are

conducted by the Executive Committee comprising of Government servants and educationists. The Executive Committee would enter into

arrangements with Government, public or private organisations or individuals in furtherance of the objectives for implementation of programmes.

The funds of the NCERT consist of : (ii) grants made by the Government, (ii) contribution from other sources, and (iii) income from its own assets.

It is free to apply its income and property towards the promotion of its objectives and implementation of the programmes. The Government control

is confined only to the proper utilisation of the grant. The NCERT is thus largely an autonomous body.

In the context of the present case when a reference is made to the objects of respondent No. 1 it is clearly made out that the decisions in the cases

of Chander Mohan Khanna, Tek Raj Vasandi, Sabhajit Tewary and P.K. Ramachandra Iyer (supra) squarely covers the case in question. For

ready reference, the objects of respondent No. 1 are extracted hereinbelow :

""Objects :

The objects for which the Central Council is established are :

For formulation of aims and patterns of research on scientific lines in Unani Medicines.

To undertake any research or other programmes in Unani Medicine.

The prosecution of and assistance in research, the propagation of knowledge and experimental measures generally in connection with the

causation, mode of spread and prevention of diseases.

To initiate, aid, develop and coordinate scientific research in different aspects, fundamental and applied, of Unani Medicine, and to promote and

assist institutions of research for the study of diseases, their prevention, causation and remedy.

To finance enquiries and researches for the furtherance of objects of the Central Council.

To exchange information with other institutions, associations and societies interested in the objects similar to those of the Central Council and

specially in observation and study of diseases in East and in India in particular.

To prepare, print, public and exhibit any papers, posters, pamphlets, periodicals and books for furtherance of the objects of the Central Council

and to contribute to such literature.

To issue appeals and make applications for money and funds in furtherance of the objects of the Central Council and to accept for the aforesaid

purpose gifts, donations and subscriptions of cash and securities and of any property whatever movable or immovable.

To borrow or raise monies with or without security or on security, mortgage, charge, hypothecation or pledge of all or any of the immovable or

movable properties belonging to the Central Council or in any other manner whatever.

To invest and deal with the funds and monies of the Central Council or entrusted to the Central Council not immediately required in such

manner as may from time to time be determined by the Governing Body of the Central Council.

To permit the funds of the Central Council to be held by the Government of India.

To acquire and hold, whether temporarily or permanently any movable or immovable property necessary or convenient for the furtherance of

the objects of the Central Council.

To sell, lease, mortgage and exchange and otherwise transfer any of the properties movable or immovable of the Central Council provided

prior approval of the Central Government is obtained for the transfer of immovable property.

To purchase, construct, maintain and alter any buildings or works necessary or convenient for the purposes of the Central Council.

To undertake and accept the management of any endowment or trust fund or donation the undertaking or acceptance whereof may seem

desirable.

To offer prizes and grant of scholarships, including travelling scholarships in furtherance of the undertaking or acceptance whereof may seem

desirable.

To create administrative, technical and ministerial and other posts under the Society and to make appointments thereto in accordance with the

rules and regulations of the Society.

To establish a provident fund and or pension fund for the benefit of the Central Council's employees and for their family members.

To do all such other lawful things either alone or in conjunction with others as the Central Council may consider necessary or as being

incidental or conductive to the attainment of the above objects.

Plea of the petitioner that the directions of the Court in SWP 145/96 decided on 2.12.1999 have not been carried out, cannot be accepted. In this

behalf stand of the respondents is clear and it is further clearly made out that the case of the petitioner was put up before the Committee who on its

examination found that he is not entitled to any relief or reconsideration of the whole affairs, therefore, no fault can be found with the said decision

dated 20.1.2000.

No other point is urged.

In view of the aforesaid discussion as well as on the facts of this case from whatever angle the petitioner's claim may be viewed he is not

entitled to any relief whatever in this writ petition, and thus it has no merit.

There is thus no merit in this writ petition, which is accordingly dismissed, with no order as to costs.

CWP No. 76/2000

No orders, in view of order passed in main matter, it also stands disposed of.