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2007(5) Supreme 909
Supreme Court of india
(From Delhi High Court)
P.K. Balasubramanyan & P.P. Naolekar, JJ.
Lt. Governor of Delhi & Ors. — Petitioners
versus
V.K. Sodhi & Ors. — Respondents
Appeal (civil) 3272 of 2003
[with C.A. No. 8132 of 2003]
Decided on : 14-08-2007
(2002) 5 SCC 111 – Relied upon.
(b)Constitution of India – Article 12 – The provisions of the Memorandum of Association and the bye-laws of SCERT are more or less the same as that of NCERT – NCERT having been declared not a State within the meaning of Article 12, State Government having no role to play on the administration of the Council or in the working of the Council or over its finances, once the grant was made; SCERT cannot be assumed to be State, merely because the State coordinates education and SCERT is dependent on grants from the State Government. (Paras 10 and 11)
(1991) 4 SCC 578 – Relied upon.
(c)Judicial Review – Even if a decision is overruled, it does not mean that the relevant issues, common with the overruled decision, need not be discussed – Each case has to be considered with reference to the facts available. (Para 14)
(1975) 1 SCC 485 – Distinguished.
(d)Constitution of India – Article 12 – In view of the Government not having deep and pervasive control over the working of SCERT in financial matters of 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, SCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India. (Para 15)
(e)Constitution of India – Article 226 – 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 – 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 – 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 – In a welfare State at times 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. (Para 16)
(f)Constitution of India – Article 226 – Once it is held that SCERT is not a State, it is normally not amenable to the jurisdiction of the High Court under Article 226 – Other issues need not be pursued further. (Para 17)
Facts of the case :
In this appeal, the challenge is to the decision of the Delhi High Court holding that the State Council of Education, Research and Training is a State within the meaning of Article 12 of the Constitution of India and the conclusion that the Lieutenant Governor of Delhi, SCERT and others are bound to implement the policy decision of SCERT as reflected in Regulation 67 framed by it as also the Advanced Career Promotion Scheme. But a caveat was entered that those who have not been absorbed cannot be given the benefit of the decision unless they are absorbed permanently in SCERT. The writ petition was allowed on the above terms with costs.
Findings of the Court :
SCERT is not a State within the meaning of Article 12 of the Constitution.
Result : Appeal allowed.
JUDGMENT
P.K. BALASUBRAMANYAN, J.—
1.In this appeal, the challenge is to the decision of the Delhi High Court holding that the State Council of Education, Research and Training (‘SCERT’ for short) is a State within the meaning of Article 12 of the Constitution of India and the conclusion that the Lieutenant Governor of Delhi, SCERT and others are bound to implement the policy decision of SCERT as reflected in Regulation 67 framed by it as also the Advanced Career Promotion Scheme. But a caveat was entered that those who have not been absorbed, cannot be given the benefit of the decision unless they are absorbed permanently in SCERT. The writ petition was allowed on the above terms with costs.
2.We may notice that the writ petition was not allowed as prayed for nor was a mandamus as such issued to the respondents. The prayer in the writ petition was for the issue of a writ of mandamus or any other suitable writ, order or direction to the respondents to extend the benefits of pension, gratuity and general provident fund on retirement in favour of the writ petitioners, to provide facilities of loan, advances for betterment of career, status and life in terms of housing loan, car loan, computer loan etc. in favour of the writ petitioners and also to extend the benefits of the same pay and allowances in favour of the writ petitioners as are admissible to the academic staff of National Council of Educational, Research and Training (‘NCERT’ for short) at par or to pass any other order or direction as may be deemed fit and proper. It may be noticed that Regulation 67 of SCERT Rules and Regulations which provided that the terms and tenure of service of the academic staff at the Council shall remain the same as available for the academic staff of NCERT was amended by notification dated 7.12.1999 retrospectively to the effect that the terms and tenure of service of academic and other staff of the Council should remain the same as available for the academic and other staff of the Directorate of Education, G.N.C.T. of Delhi with such modifications that may be specifically adopted by the Executive Committee from time to time. This amendment was not challenged in the writ petitions in the context of the prayers in the writ petition. But in the context, it is clear that the High Court has issued a direction to SCERT to implement Regulation 67 as it stood prior to its amendment in respect of a class of employees and to implement certain resolutions adopted by the Governing Committee of SCERT. We may incidentally notice and it is the common case, that the unamended Regulation 67 had never been implemented in SCERT in respect of any of its employees and there is no case of any discrimination in the implementation of that Regulation.
3.While allowing the writ petition, the High Court negatived the plea of SCERT that it was merely a society registered under the Societies Registration Act and it was not a State within the meaning of Article 12 of the Constitution of India. The High Court also overruled the plea of SCERT that it mainly relied on the grant by the Government for the purpose of achieving the objects with which the society was formed and without the sanction or approval of the State Government, it was not in a position to spend any part of the grant by way of additional benefits to its employees. It is feeling aggrieved by the decision thus rendered by the High Court that this Appeal has been filed.
4.We may notice here that the High Court held that the decision by this Court in Chander Mohan Khanna v. N.C.E.R.T. & ors.,1[(1991) 4 S.C.C. 578] could not govern the case of SCERT in view of the decision in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology & ors.,2 [(2002) 5 S.C.C. 111] and in that view, it was held that the Society was a State and that the amendment of the Regulation would not affect the employees who had joined SCERT prior to the date of the amendment.
5.It is argued on behalf of the appellants that the High Cou
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