IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7858 of 2004 SANJOY KUMAR SRIVASTAVA , SON OF LATE JAI SHANKAR PRASAD, RESIDENT OF VILLAGE RAGHOPUR BAKHRI, P.S. SITAMARHI SADAR, DISTRICT SITAMARHI, AT PRESENT ASSISTANT AUDIT OFFICER, PRINCIPAL ACCOUNTANT GENERAL OFFICE, BIRCHAND PATEL PATH, PATNA. ---------------------------------------------------------------------------------------------------- PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE HEALTH COMMISSIONER-CUM- SECRETARY, VIKASH BHAWAN, BIHAR, PATNA. 2. THE CHAIRMAN, BIHAR STATE A.I.D.S CONTROL SOCIETY-CUM- COMMISSIONER OF HEALTH, GOVERNMENT OF BIHAR, PATNA. 3. THE PROJECT DIRECTOR, BIHAR STATE A.I.D.S. CONTROL SOCIETY, STATE INSTITUTE OF HEALTH AND FAMILY WELFARE BUILDING SHEIKHPURA, PATNA. 4. THE FINANCE CONTROLLER, BIHAR A.I.D.S. CONTROL SOCIETY, STATE INSTITUTE OF HEALTH AND FAMILY WELFARE BUILDING, SHEIKHPURA, PATNA. ------------------------------------------------------------------------------------------------ RESPONDENTS For the petitioner :- Mr. Sujeet Kumar Sinha, Advocate Mr. Praveen Kumar Sinha, Advocate For the State :- Mr. Anshuman Singh, A.C. to A.A.G. III For the respondent :- Mr. Rajiv Kumar Singh, Advocate State AIDS Control Society ********** 8 22.2.2011 Petitioner is an Accountant in the office of the Accountant General, Bihar and was on deputation to the Bihar State AIDS Control Society which was controlled and associated with the National AIDS Control Organization. Petitioner has filed this writ application making a prayer that he should be paid the Transfer Allowance and salary for the period of transit i.e. ten days. The main challenge in this writ 2 application is whether the Bihar State AIDS Control Society is a State within the meaning of Article 12 of the Constitution and in the facts of this case whether the petitioner would be entitled to the reliefs aforesaid? The facts are that the petitioner was deputed to work as an Accountant in the Bihar State AIDS Control Society (hereinafter referred to as „the Society‟). In the notification of his transfer, it was specifically stated that “he will be entitled for T.A. and joining time, on joining the post on deputation and on reversion there upon. The expenditure on this account will be borne by the Foreign employer.” The petitioner gave his consent for extension of his service till 26.3.2002. After some time he felt difficulty in continuing with the Society and applied for his reversion (Annexure A) in which he has stated that he had some family problems and wishes to be reverted. The said application is dated 26/27.7.2001. Petitioner was released on 30th of December, 2001 and he joined his parent department on 31.12.2001. On the basis of the aforesaid facts, he claims that he is 3 entitled for his T.A. and salary for the period of ten days. An objection has been raised on behalf of the respondent Society that the Society is not a State within the meaning of Article 12 of the Constitution. The respondents have denied the said relief to the petitioner on the ground that his case is not covered by the provisions of Rule 83 of the Bihar Travelling Allowances Rule, 1949. Before discussing the merits of the claim of the petitioner, it would be proper for this Court to consider whether the Society is a State within the meaning of Article 12 of the Constitution. The test for determining as to whether a Society, Association, Corporation or any other authority is a State within the meaning of Article 12 of the Constitution has been discussed in several decisions of the Supreme Court. From the decisions of the Supreme Court which I will be referring to, the principle that can be culled out is that each case has to be considered on its own merits. The test laid down are not conclusive or clinching but are merely indicative of the 4 criteria which ought to be considered while interpreting the meaning of the expression „other authorities‟. The relevant tests laid down in the case of Ramana Dayaram Shetty Vs. International Airport Authority case reported in (1979) 3 SCC 489 are as follows: (1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. (SCC p. 507, para 14) (2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (SCC p. 508, para 15) (3) It may also be a relevant factor…whether the corporation enjoys monopoly status which is State conferred or State protected. (SCC p. 508, para 15) (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (SCC p. 508, para 15) 5 (5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (SCC p. 509, para 16) (6) “Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference” of the corporation being an instrumentality or agency of Government. (SCC p. 510, para 18). These facts were also under consideration of the Supreme Court in the case of Ajay Hasia Vs. Khalid Mujib Sehravardi reported in (1981) 1 SCC 722 where the Supreme Court was considering whether the college established and administered by a Society registered under the Jammu & Kashmir Registration of Societies Act, 1989 was a State under Article 12 of the Constitution. Having regard to the facts that the composition of the Society was dominated by the representatives appointed by the Central Government and the Governments of Jammu & Kashmir, Punjab, Rajasthan and Uttar Pradesh 6 with the approval of the Central Government; the rules of the Society were required to be approved by the Government; the control of the State was deep and pervasive and members of the Society were appointed after approval of the Central Government and that the Board of Governors were largely controlled by the State, and the Central Government had the power of superintendence over the finances of the Society, the Supreme Court held that the Society was a State within the meaning of Article 12 of the Constitution. Similarly in a judgment of the Apex Court in the case of Virendra Kumar Srivastava Vs. U.P. Rajya Karmachari Kalyan Nigam & Anr. reported in AIR 2005 S.C. 411. The question before the Court was whether the Corporation aforesaid was a State within the meaning of Article 12 of the Constitution. The Apex Court considered the object for the formation of the Corporation, the financial control of the Corporation, the administrative control of the Society and came to the conclusion that the Corporation was a State within the meaning of Article 12 of the Constitution. On the other hand, on 7 similar considerations, this Court relying on Ajay Hasia(supra) held that the Council of Scientific and Industrial Research (CSIR) is a State within the meaning of Article 12 of the Constitution in view of the Supreme Court judgment in the case of Sabhajit Tewary Vs. Union of India & Ors. reported in (1975) 1 SCC 485. Referring to the fact of the present case, this Court will consider the criterias as laid down in Ajay Hasia‟s case to test whether the Society is a State within the meaning of Article 12 of the Constitution. For this purpose, this Court will refer to Annexure-2, the rules and regulations framed with respect to the National AIDS Control Organization apparently under the Department of Health and as well as the memorandum of association of the Bihar State AIDS Control Society. The memorandum of the association is not before this court. However, Annexure- 7 is a document which deals with the second phase of the National AIDS Control Programme (NACP) which indicates that it has received the approval of the Union Cabinet on 26th of August, 1999 with a total outlay of Rs. 1,425 8 crores. The project started in 1999 and continues up to now. Clause 14 of the said Annexure-7 indicates that the programme will be subject to strict monitoring and evaluation process. Release of funds from National AIDS Control Organization to the AIDS Control Society will be with specific approval of the Finance Advisor of the Department of Health. The State AIDS Control Societies are also provided with finance controllers who will closely monitor, flow and utilization of funds from the Societies to the implementing agencies including NGOs. The entire system of keeping accounts and submission of quarterly returns to the Government and the lending agency will be computerized through a Project Finance Management System. The Accounts of National AIDS Control Organization will be audited by the Controller and Auditor General (C & A.G.). The State AIDS Control Societies will be audited by the C.As. approved by C & A.G. and concurrently by the C & A.G. also. This would indicate that the accounts are controlled by State or Central Government, although the finance is provided through 9 several sources including the World Health Organization, Government Bodies, NGOs, and Philanthropist. It is controlled and audited by the A.G. Office. It can also be culled out from the facts aforesaid that the National AIDS Control Organization controls the finances of the State AIDS Control Societies. Having discussed the Rules and Regulations, this Court will now directly deal with the fact whether the Bihar State AIDS Control Society is a state within the meaning of Article 12 of the Constitution. One of the criterias to determine whether the society is a State within the meaning of Article 12 of the Constitution of India is look to the objects of the organization or society. The memorandum of association indicates that the sole object of the Society is to eradicate AIDS by various means and to provide medical care for the disease, to assess periodically the magnitude of the problems of AIDS in the State, to plan and implement those components of National AIDS Control Organization which fall within the State frame work and to monitor and report all components of National AIDS 10 Control Organization activities and quarterly basis to the State and the Central Government. The aims also indicate that the Society would try and raise funds by way of grants, donations and the like; Society would also monitor and control proper utilization of funds, materials, equipment receive from the Government/other sources from time to time for the function of the State/District AIDS Society; to frame rules and regulations for day to day execution of the Society‟s activities; to appoint or employ temporary or permanently the persons for the purposes of the Society and to pay them such salary or wages as may be determined by the Executive Council/Chairman/GOI/State Government on the pattern of the National Programme for Controls of AIDS and to attain the objectives of the programme. Obviously the very purposes of establishing the Societies to meet the menace of the disease which has inflicted a larger cross section of the Society and can be prevented and controlled, as well as treated effectively by awareness programmes with respect to the causes of the disease which is a public duty of the State. 11 This Court, therefore, finds that the very nature of the work of the Society is with respect to performing a public duty which ensures good health for all living beings. The rules and regulations of the Bihar AIDS Control Society would further indicate as to whether the Society would come within the meaning of Article 12 of the Constitution. The Society consists of the Governing Council, Executive Council, Chairman, Principal Secretary, some other authority or authorities as may be constituted by the Governing Council. The ex-officio members of the Society are the Commissioner-cum-Secretary, Health Department-Chairman, Special/Additional/Joint /Deputy Secretary/ Under Secretary- Member, Director-in-Chief- Member, Representative of Education Department- Member, Representative of Finance Department- Member, Representative of Welfare Department- Member, State Drug Controller, Health Department- Member, State Programme Officer (AIDS Cell)- Secretary, Representatives of Labour Department- Member and the nominated members are from other fields. The Executive Council consists of 12 eight persons who are to be nominated by the Chairman from amongst the Government Council. The powers and functioning of the Governing Council is (a) To approve the annual budget (b) to take decisions in any matter that may be referred to it by the Central or State Government or by the Chairman (c) To undertake any other activities that are consistent with the aims and objective of the society (d) To consider and approve the accounts along with the audit report (e) To make, alter and revise the rules and regulations, with the approval of the Government and (f) To acquire, hold and dispose off property, either as movable and immovable and to administer all assets; and inspect and supervise the implementation of the schemes under the national programme for Control of AIDS under the guidance and advice of the State and Central Government. Rule 14 deals with the funds of the Society and accounts which includes grants made by or through the Government of India or State Government, All monies received by way of grants, gifts, donations, benefactions, transfers and in any other manner from 13 sources other than the sources of Government. Rule 15 proves that the annual budget showing the estimated recurring expenditures shall be prepared in such form as may prescribed by the Government of India and the State Government and submitted to it in such manner as may be required. Rule 17 deals with the audit an accounts and provides as follows: (i) The accounts of the society shall be maintained on double entry system and in the prescribed proforma according to directions issued by the Govt. of India. (ii) The accounts of the society shall be audited by a Chartered Accountant and the audited accounts of the society will be placed before governing council for approval. The State Govt. may also get the accounts of the Society audited by the Accountant General of Bihar if need be. (iii) A monthly account showing the allotment and expenditure under each item shall be prepared and submitted to the State Govt. (iv) At the close of each quarter, a consolidated account showing the total receipts, payments during the period under 14 several head of accounts with opening and closing balance shall be prepared and submitted to State Govt. as w ell as the Govt. of India. (v) The Member Secretary shall cause the annual accounts of the Society to be prepared by a date not later than the 30th June comprising of receipts and payments accounts, income and expenditure account and balance sheet. After approval by the Chairman, he shall have the accounts authenticated by 31st Aug. The audited and authenticated balance sheet shall be placed before executive council for approval. (vi) A copy of such audit report duly signed by auditor along with annual statement of accounts certified by the auditor and the chairman and member secretary of the society shall be furnished to the Govt. of India and the State Govt. not later than 30th September. (vii) The controller and Auditor General of India shall have the same rights, privileges and authority to conduct audit of the accounts of the society as he had in connection with the audit of Govt. accounts and for this purpose shall have the right to 15 demand the production of books of accounts and other relevant records of the society. Rules 23 and 24 may be quoted as they have been referred to by the parties: “23. If on the winding up or dissolution of the Society there shall remain, after satisfaction of its debts and liabilities, any property whatsoever, the same shall not be paid to, or distributed among the members or any of them but shall consistently with the objects of the Society be dealt with in a such manner as the State Govt. may determine. 24. Any dispute between the society and party/parties will be decided by the Commissioner-cum-Secretary,Health Department, Govt. of Bihar in accordance with the rules and his decision shall be final in the matter.” Considering the rules and regulations as quoted above, this Court comes to the conclusion that the composition of the members of the society in the majority consists of the Officers of the State Government and they are the persons who are responsible for functioning of the Society. 16 The finances are subject to the control of the State Government as well as the Central Government although there is a provision that the monies may be collected from other sources can be utilized for the purposes of achieving the aims and objective of the Society. This court comes to the conclusion that the Society fulfils the conditions and tests laid down in Ajay Hasia‟s case and would come within the meaning of Article 12 of the Constitution. To fortify my view I may refer to the case of Sri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust & Ors. Vs. V.R. Rudani & Ors. reported in AIR 1989 S.C. 1607. In this case the appellant was a public trust running at Science College at Ahmedabad. The College was temporary affiliated to the Gujrat University. The teachers of the College applied for implementation of certain pay scales as granted by the University Grant Commission. The dispute arose with respect to whether by agreement the parties referred the matter to the Chancellor who gave his award in the matter. The teachers then moved 17 the High court for a writ of mandamus for directing the respondent trust and its trustees to pay their due salaries. The High Court rejected the submissions of the writ petitioners but directed to make certain payments to them. The „Trust‟ appealed to the Supreme Court. Two questions arose before the Supreme Court. One was with respect to the liability to pay the compensation and secondly the maintainability of the writ application. The „Trust‟ had also asked the Government to compensate the payment of the salaries. The Supreme Court has held that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute and relied on recommendations made by Professor D. Smith- “to be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by Charter Common Law, custom or even contract”. The Supreme Court subscribed to this view by rejecting the appeal of the trust on the ground that they were performing a public duty and, therefore, a writ of mandamus was enforceable 18 against them and they had the duty to pay the teachers their dues which granted to them under Article 226 of the Constitution. This Court, therefore, also finds that the nature of the work of the organization comes within the purview of a „public duty‟. Having held that the Society is a State within the meaning of Article 12 of the Constitution, the question before this Court is whether the petitioner would be entitled to the reliefs claimed for. I have already referred to the approval given by the Account General, Bihar, Patna to the deputation of the petitioner on foreign service, wherein it has been said that the petitioner would be entitled to T.A. at the time of joining on the post of deputation as well as on reversion. I may also refer to the Bihar Travelling Allowances Rules, 1949. Rule 83 state as follows: “Travelling allowance may not be drawn under this sub-section by a Government servant on transfer from one station to another, unless he is transferred for the public convenience and is entitled to pay during the period occupied by the journey. A transfer at his own request or in 19 consequence of misconduct should not be treated as a transfer for the public convenience, unless the authority sanctioning the transfer for special reasons which should be recorded, otherwise direct.” The note to the rule lays the condition that a Government servant must be entitled to pay during the period occupied by the journey does not apply to travelling allowance drawn under rules 95, 97 and 120. Relying on the aforesaid provision, counsel for the respondents submits that the petitioner had applied for reversion before completing his tenure of two years, the transfer was made on his own request and, therefore, he would not be entitled to demand T.A. It is further submitted that the application filed before the Society does not disclose that the petitioner had transferred to Patna alone and had returned thereafter to bring his family back at Ranchi. There is no doubt about the fact that ordinarily the petitioner would be entitled to T.A. on his reversion. In the present case, it is obviously not a case of simple transfer rather it is a case where the 20 petitioner was on deputation for a period of two years. The order releasing him has specifically specified that he would be entitled to T.A. by the foreign employ i.e. the Society. It is also a fact that the petitioner had completed his initial term of two years on deputation and had requested for release from his deputation after the said period of two years. I do not see how the Rule 83 would come in the way of the petitioner, being granted the relief prayed for, thus this Court comes to the conclusion that the petitioner would be entitled to his travelling allowance as well as to the pay for ten days for the aforesaid period which has to be treated as on transfer. This writ application is, accordingly, allowed. A.F.R./Sanjay ( Sheema Ali Khan, J.)