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2018 Supreme(Cal) 263
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Nadira Patherya, Subrata Talukdar, JJ.
Dr. Pushan Majumdar – Petitioner
Versus
Union of India & Ors. – Respondent
FMA 16, 28-38 of 2011 With COT 1 of 2011, W.P. No.8619 (W) of 2012, 28123 (W) of 2012, 12697 (W) of 2016
Decided On : 10-05-2018
For the Petitioner: Mr. Bikash Ranjan Bhattacharjee, Sr. Adv., Mr. Shamim Ahmed., Mr. Avra Mazumdar, Mr. Anup Kanti Poddar, Mr. Ayan Poddar, Ms. Debsmita Biswas,
For the IACS : Mr. Mainak Bose, Mr. Kumarjit Das, Ms. Debaleena Ganguly.
The central legal point established in the judgment is the determination of IACS as a 'State' or 'other Authority' under Article 12 of the Constitution of India, based on its financial aid, composition, functioning, and control by the Government of India and Government of West Bengal.
Headnote:
IACS - Jurisdiction - 1975 (1) SCC 421, 1979 (3) SCC 489, AIR 1989 SC 1607, 2002 (5) SCC 411, 2005 (5) SCC 75, AIR 1981 SC 487, AIR 1992 SC 76, 1984 (2) SCC 14, AIR 1988 SC 469, 2001 (2) CHN 762 (FB), 1992 (1) CLJ 319, 2013 (8) SCC 345 - The court discussed the relevance of IACS being amenable to jurisdiction, its financial aid from the Government of India and Government of West Bengal, and its status as a statutory institute. The court considered the composition and functioning of IACS, its application of the Lokpal and Lokayukta Act 2013, and the role of the Department of Science and Technology, Government of India in the Council meetings. The court analyzed previous judgments and the nature of IACS' control and independence, ultimately determining its status as a 'State' or 'other Authority' under Article 12 of the Constitution of India.
Fact of the Case:
The appeal was filed by the Indian Association for the Cultivation of Science (IACS) challenging the maintainability issue of the writ petition. The court considered the composition and functioning of IACS, its financial aid from the Government of India and Government of West Bengal, and its status as a statutory institute. The court analyzed previous judgments and the nature of IACS' control and independence, ultimately determining its status as a 'State' or 'other Authority' under Article 12 of the Constitution of India.
Finding of the Court:
The court found that IACS is amenable to jurisdiction, receives substantial financial aid from the Government of India and Government of West Bengal, and is described as a Statutory Institute. The court analyzed the composition and functioning of IACS, its application of the Lokpal and Lokayukta Act 2013, and the role of the Department of Science and Technology, Government of India in the Council meetings. The court ultimately held that IACS is a 'State' or 'other Authority' under Article 12 of the Constitution of India.
Issues: The issues revolved around the maintainability of the writ petition filed by IACS, its status as a 'State' or 'other Authority' under Article 12 of the Constitution of India, and its control and independence in relation to the Government of India and Government of West Bengal.
Ratio Decidendi: The court's decision was based on the analysis of IACS' financial aid, composition, functioning, and control by the Government of India and Government of West Bengal. The court also considered previous judgments and the nature of IACS' control and independence, ultimately determining its status as a 'State' or 'other Authority' under Article 12 of the Constitution of India.
Final Decision: The court held that IACS is a 'State' or 'other Authority' under Article 12 of the Constitution of India, and therefore, the writ application filed was maintainable. The impugned judgment was set aside, and the appeal was dismissed.
Patherya J.
1. This appeal has been filed from the order dated 17th August, 2010, by the Indian Association for the Cultivation of Science (IACS) as it is neither a ‘State’ or ‘other Authority’ and the maintainability issue of the writ petition was considered and dismissed. Along with FMA No.16 of 2011, W.P.12697(W) of 2016 filed by Utpal Sadhu and W.P.28123(W) of 2012 filed by Ashoke Kumar Roy were also tagged.
2. Counsel for the appellant places the Memorandum of Association of IACS so also the Regulation of IACS before the Court. 1975 (1) SCC 421, 1979 (3) SCC 489, AIR 1989 SC 1607, 2002 (5) SCC 411 and 2005 (5) SCC 75 is relied in support of its contention.
3. On the contra Counsel for IACS relies on AIR 1981 SC 487, AIR 1992 SC 76, 1984 (2) SCC 14, AIR 1988 SC 469, 2001 (2) CHN 762 (FB) and 1992 (1) CLJ 319. 2013 (8) SCC 345 supports the contention of the writ petitioner/appellant. In W.P.12697(W) of 2016 the Constitution of IACS was annexed and in Regulation 7 of IACS, the formation of the Council, its Constitution and composition finds mention. Regulation 10 of the Association also deals with financial aid given to IACS by the Government of India. In this respect Regulation 2.3 of the Bye-laws is set out hereinbelow:-
“2.3 Appointment of Director
The Council shall appoint the Director with prior approval of Central Government and following Recruitment Rules and procedures prescribed by the Government of India from time to time.
[Old Rules :The Council shall appoint a Search Committee to look for possible incumbents for the post of Director. On recommendation of the Search Committee, the Council after due ratification will forward the names to the Secretary, Department of Science & Technology for taking further action as required for appointment of Director of Central Autonomous Organizations of the Government of India. Old rule was amended vide resolution of the Governing Council under item no.4 in its 2013-2 meeting held on 13.07.2013.]”
4. The composition of the Finance Committee is constituted as per Bye-law 4.1.2. and reads as follows:-
“4.1.2 THE FINANCE COMMITTEE
Composition:
The composition of the Finance Committee would be as follows:
(i) The Chairman of the Governing Council
(ii) The Director
(iii) One representative of the Ministry of Science & Technology, Government of India, who is also a member of the Council
(iv) On Trustee member nominated by the Council v) The Accountant-General, West Bengal or his nominee vi) The Registrar who will be the non-member Secretary
In absence of the Chairman of the Council, the members will elect a Chairman from among themselves.
Powers and Duties of the Finance Committee:
(i) The Finance Committee shall make recommendation to the Council on all proposals of new demands, which shall stand referred to the Finance Committee for opinion before being considered by the Council.
(ii) It would prepare a budget for the Association for the next financial year or the next plan period.
(iii) To advice and recommend on any particular initiative that has a financial implication.”
5. The Association is responsible for proper functioning of the statutory bodies. Therefore, the element of ‘State’ and ‘other Authority’ will be relevant. IACS is amenable to jurisdiction as will appear from paragraph 38 in W.P.28123(W) of 2012. W.P.12697(W) 2016 supports the appellant and the judgment of B.P. Banerjee, J. in 1992. In fact, IACS has paid sums to the Government of West Bengal for lands acquired on its behalf made under the Land Acquisition Act, 1894 and compensation awarded by the Collector under the said Act. From the website of IACS it will appear that IACS is an Autonomous Research Institution aided by a Governing Council. IACS has received 95% of its yearly funds from the Department of Science and Technology, Government of India. A sharing amount is also given by the Government of West Bengal in favour of IACS. Therefore, a substantial amount of the grant is provided both by Government of India and Gov
