WP(C) 4783/2003 BEFORE THE HON’BLE MR JUSTICE B. K. SHARMA Heard Mr. B. Kalita, learned senior counsel assisted by Mr. A. Khanikar, learned counsel for the petitioner as well as Mr. I. Ahmed, learned counsel app earing for the respondents No. 1 & 2. I have also heard Ms. R. Chakraborty, lear ned Addl. Sr. Govt. Advocate, Assam appearing for the respondent No.4. 2. By means of this writ petition, the petitioner has prayed for a directi on to the respondents to provide him with the pay scale of Upper Division Assist ant (UDA) of Heads of Department establishment as prescribed under various ROP R ules framed by the Govt. of Assam. Another prayer made in the writ petition is t hat he should be allowed to continue in service till the age of superannuation i .e. 60 years and all other retirement benefits like CPF, leave encashment and gr atuity, etc. 3. The petitioner was an employee of the Govt. of Arunachal Pradesh in the Public Works Department. He had been serving under the State Government as LDA t ill 30.6.1987 when he took voluntary retirement. 4. In response to the Annexure-B employment notice dated 16.7.1988 issued b y the Director, Assam Minorities Development Board (Respondent No.1) for the pos t of UDA in the time scale of Rs. 675 - 1100/-, the petitioner responded to the same by offering his candidature. Be it stated here that in the advertisement, t here was no prescription of upper age limit and even the retired employees who r etired during last 3 years could also apply. 5. The petitioner was appointed pursuant to the aforesaid advertisement. Su ch appointment was in the year 1988. However, the copy of the appointment order has not been annexed to the writ petition. With such appointment in the Board, t he petitioner continued in his services. He retired from service on attaining th e age of superannuation prescribed by the Board i.e. 58 years on 28.2.2002. To t hat effect, the letter dated 28.2.2002 (Annexure-K) was addressed to the petitio ner by the Director of the respondent Board. After such retirement, the petition er filed the writ petition on 20.6.2003, claiming continuation in service upto t he age of 60 years and also the scale of pay as admissible to the UDAs of Heads of Departments establishment. He has also claimed retirement benefits of CPF, le ave encashment and gratuity, etc. 6. According to the petitioner, the respondent Board being an authority wit hin the meaning of Article 12 of the Constitution of India and being under deep and pervasive control of the State Government, is entitled to all such service b enefits, as are admissible to State Government employees. 7. In paragraph 4 of the writ petition, the petitioner has stated that the respondent Board is a Society registered under the Societies Registration Act, 1 860 and that it is entirely financed and controlled by the State Government. In paragraph 5 of the writ petition, the petitioner has indicated the pay scales of LDA and UDA as admissible to the State Government employees. It is the stand of the petitioner that while the LDAs working in the Board have been extended with the pay scale of the Heads of Departments establishment, the petitioner working in the post of UDA has been denied the scale of UDAs of Heads of Departments es tablishment. In this connection, the petitioner has referred to the Annexures H & J letters dated 28.9.92 and 22.11.99, addressed to the Government of Assam in the Political Department and Welfare of Minorities Department respectively by th e Director of respondent Board. In the said two letters, it was stated that whil e the LDA working in the Board had been sanctioned the scale of pay applicable t o Heads of Departments establishment, the UDAs had been provided with the scale of pay applicable to District and Subordinate establishment level. 8. The respondents have filed their counter affidavit denying the claim of the petitioner. It has been stated that the respondent Board is a registered soc iety and there are no permanent Officers in the Board. All the officers are depu ted by the Government as and when required by the Board. It has been stated that the Board is like a nodal agency and only some staff are directly recruited by the Board. The pay scale of the staff are also fixed by the Board. In the affida vit, the respondents have referred to the aforementioned advertisement dated 14. 7.88, pursuant to which the petitioner was appointed as UDA. The respondents hav e also annexed the copy of the application which the petitioner had submitted in response to the said advertisement. Thus, according to the respondents, the pet itioner having accepted the services of the Board with his eyes wide open, he ca nnot now turn around the same and that too after retirement from service, so as to claim the service benefits like that of State Government employees. 9. In the counter affidavit, the respondents have also stated that the pay scale of the staff appointed by the Board are fixed by the Board of Directors. O n the other hand the deputed Govt. Officers and other staff are entitled to rece ive their salary in the time scale of pay prescribed by the Government. 10. In paragraph 7 of the counter affidavit, it has been stated that the res pondent Board is a registered society under the Societies Registration Act, 1860 and the management of the Board is vested with the Board of Directors. The Boar d has never passed any resolution regarding admissibility of the scale of pay of the Govt. of Assam to the employees of the Board and so also enhancement of the retirement age upto 60 years. In paragraph 9 of the counter affidavit, the res pondents have stated that the petitioner was not entitled to the benefits like t hat of State Govt. employees, such as leave encashment, gratuity etc as he was a ppointed by the Board and not by the State Government. It has also been stated t hat the facilities which are not provided by the Board to any of the employees o f the Board, the same cannot be extended to the petitioner on the basis of his c laim. It has further been stated that the respondent Board being a society, its employees are governed by the service conditions formulated by the Board and can not claim that they should also be treated at par with the State Govt. employees . 11. The respondent Board was not set up by any statute nor its activities ar e statutorily controlled. A writ under Article 226 lies only when the petitioner establishes that his / or her fundamental right or some other legal rights has been infringed. The test to determine whether the respondent Board is a ’State’ is whether on facts, the Board can be said to financially, functionally and admi nistratively dominated by, or under the control of the Government. Such control must be particular to that and must be pervasive. However, mere regulatory cont rol, whether statutory or otherwise, is not sufficient to bring a body within th e meaning of Article 12 of the Constitution of India. As has been held by the Ap ex Court in Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology & Ors. Reported in (2002) 5 SCC 111, simply by holding a legal entity to be an instrum entality or agency of the State, it does not necessarily become an authority wit hin the meaning of ’other authorities’ in Article 12. To be an authority, the en tity should have been created by a statute or under a statute and functioning wi th liability and obligations to public. 12. In Supriyo Basu and others Vs. W.B. Housing Board and others reported in (2005) 6 SCC 289, the Apex Court held that the writ petition would be maintaina ble only if it is established that a mandatory statutory provision of a statute has been violated. Mere fact that the Society in question is governed by a statu te, was held not to be enough. 13. In the instant case, the petitioner was appointed pursuant to the Annexu re-B advertisement dated 16.7.88, in which the scale of the post was clearly ind icated. The advertisement was issued by the Director of the respondent Board. In the advertisement, it was also indicated that retired persons who had retired d uring the last 3 (three) years could also apply. Same was because of the fact th at the advertisement was issued by the respondent Board not following the terms and conditions of employment in Govt. services. The appointment of the petitione r was following the said advertisement and he continued in his service enjoying the salary paid by the Board. It is only after his retirement, he invoked the wr it jurisdiction of this Court by filling the aforesaid writ petition, claiming t he aforesaid relief. 14. It will have to be borne in mind that when the petitioner was appointed under the Board, he had already retired from govt. service and the advertisement had also provided that the eligibility of retired persons who retired during la st 3 (three) years of issuance of the advertisement. Had it been a case of follo wing the terms and conditions of the Government employment, no such clause could have been there in the advertisement. 15. As regards the plea of the petitioner that LDAs having been provided wit h the time scale of pay as admissible to the LDAs of Heads of Departments establ ishments, the UDAs of the Board should also be provided with the time scale of p ay admissible to the heads of departments establishment and that the petitioner could not have been provided with the scale applicable to the District and subor dinate establishment level, suffice is to say that the Board has disclosed in th e counter affidavit that the Board is run by the deputationists and the employee s appointed by the Board. In case of the employees on deputation form the State Govt., depending upon the pay scale in which they have already been appointed, t hey will be entitled to receive their salary in the said time scale of pay. On t he other hand, the Board employees having been provided with the salary in the B oard’s time scale of pay, it cannot be said to be a case of discrimination. 16. The respondents being a society registered under the Societies Registrat ion Act and it having not adopted the Govt. rules and regulations and terms and conditions of appointment, this Court exercising its power of judicial review un der Article 226 of the Constitution of India, cannot issue any direction to the Board to provide the petitioner all service benefits like that of State Governme nt employees. Consequently no direction also can be issued to enhance the retire ment age upto 60 years like that of other Govt. establishment. 17. For all the aforesaid reasons, I do not find any merit in the writ petit ion and accordingly it is dismissed. There shall be no order as to costs.