LETTERS PATIENT APPEAL No.164 OF 2007 ----- Against the order dated 11.01.2007 passed by Hon‟ble Mr. Justice S.K. Katriar in C.W.J.C. No. 12183 of 1999. ----- Nagendra Prasad Sinha, son of late Babban Prasad Sinha, resident of Naya Tola at present Nala Road, P.S. Kadam Kuan, District Patna – Appellant. Versus 1. Bhojpuri Academy through its Director, Mithapur, Patna, P.S. Jakkanpur, Distt. Patna. 2. Director, Higher Education, Government of Bihar, New Secretariat Building, Patna. 3. The State of Bihar, through the Commissioner and Secretary of Education, New Secretariat Building, Patna. --- Respondents. -------- For the Appellant: M/S Indu Shekhar Prasad Sinha, Sr. Adv. With Lakshmi Kant Tiwary, Ujjwal Kumar Singh, Brajesh Kumar, Advocates. For Respondent No.1: Mr. K.B.Verma, Advocate. For Respondents No. 2 & 3 : Mr. G.P. 7 with Mr. Ravi Shankar, A.C. to G.A. ----- P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA --- Shiv Kirti Singh & Birendra Pd. Verma, JJ: Heard learned counsel for the appellant- writ petitioner and learned counsel for the respondents including the State of Bihar. 2. This letters patent appeal is directed against dismissal of writ petition preferred by the appellant by order dated 11.01.2007 on the ground that respondent- Bhojpuri Academy is a society registered under the Societies Registration Act (hereinafter referred to as “the Act”) and the factual foundation has not been laid to establish that it is „State‟ within the meaning of Article 12 of the Constitution of 2 India (hereinafter referred to as “the Constitution”). 3. The principal issue falling for determination is whether Bhojpuri Academy is a society under the Act and whether it meets the requirements for being treated as „State‟ or other authority under Article 12 of the Constitution. However, before adverting to the aforesaid issue the relevant facts may be noted in brief. 4. The appellant had to superannuate from the post of Research Assistant-cum- Deputy Director Incharge, Bhojpuri Academy (hereinafter in short „Academy‟ ) on a reaching 58 years of age on 01.05.1995. But it appears that there was no established rules or bye- laws in respect of superannuation of the employees of the Academy and on that account the Director of the Academy by his letter dated 27.04.1995 ( Annexure-7) communicated his opinion to the Director, Higher Education, Government of Bihar that the Academy is an autonomous body and its employees cannot be governed by the Bye- laws of Government relating to superannuation of Government employees and, therefore, it was deemed proper to allow the appellant to continue in service till 60 years of age instead of prescribed age of superannuation of Government employees which was 58 years. Due to such stand of the Academy the petitioner continued to work on his post under the Academy till receipt of a directive from the Director, Higher Education, Bihar dated 24.08.1996, on basis whereof an office order was issued by the Academy, contained in Memo No. 592 dated 27.08.1996 (Annexure-8) indicating that the appellant was being treated as superannuated on 01.05.1995 on attaining 58 years of age. 5. The appellant preferred writ petition in question bearing CWJC No. 12183 of 1999 with a short and simple prayer that the 3 respondents be directed for payment of all retiral benefits and other dues to which the appellant- petitioner may be entitled in law. As noticed above, the writ petition was dismissed in limine on the ground that there was no factual foundation to show that the Bhojpuri Academy will be amenable to the writ jurisdiction on account of being „State‟ under Article 12 of the Constitution. 6. The records of the writ petition show that it was taken up for admission on 16.01.2003 and was admitted for the purpose of hearing. Since the respondents had already appeared, no notice was issued to them. Liberty was given to the petitioner to move for early hearing because of his claim for payment of retiral dues. It was further observed that the parties may exchange further affidavits. Thereafter a counter-affidavit was filed on behalf of the Academy in which a stand was taken that the Bhojpuri Academy was not governmental organization but a registered society established under the resolution of the Government bearing No. 520 dated 20th March, 1977 (in view of copy of that resolution being available on records as an annexure, the correct date is 20. 03.1978). It was further stated in the counter-affidavit that the Chief Executive Officer of the Academy is its Director, who was appointed by the State Government. Further averments were to the effect that there were no detailed rules and regulations of the Academy and it functions day to day as per directions of the State Government and as per past practice in the Academy, under the discretion of the Director and Chairman. With regard to payment of retiral and other dues, the Academy took a plea of financial difficulty because its source of income in practical terms is grants –in- aid by the State Government. 4 7. A reply was filed on behalf of the writ petitioner in which dues on various heads were pointed out. Further, he claimed that the Government had taken over the registered society by resolution No. 520 dated 20.03.1978 which was also published in the gazette and hence it is a government organization because the Chief Executive Officer was and is appointed by the State Government and all the members of the Board are nominated by the Government. It was averred that there is no private membership of the Academy nor there is any election of the society. It was further pointed out by the petitioner- appellant that he was made to retire at the age of 58 years on the direction of the Government but for payment of his dues, account was not being finalized and no demand was being made from the State for payment of his dues. 8. Before us, in course of hearing of this appeal the parties have relied upon their respective affidavits and advanced submissions on the main issue as to whether the Academy is a „State‟ or other authority within the meaning of the terms under Articles 12 of the Constitution. The most relevant material for this purpose has been brought on record as Annexure-B to the counter-affidavit of respondents no. 2 and 3 who are Director, Higher Education, Government of Bihar and the State of Bihar. Annexure-B to the counter-affidavit contains Memorandum of Association and the Bye- laws of Bhojpuri Academy having Registration No. 84 of 1976-77. At the top of the memorandum it is mentioned that Bhojpuri Academy had been established under the Resolution No. 520 dated 20th March, 1977. (There is consensus that the correct date is 20.03.1978). 9. Before discussing the legal principles relevant for 5 deciding the issue, it may be useful to notice some of the salient features of the Academy and its constitution and functions as apparent from Annexure-B. The purpose of the Academy is mentioned as to promote National unity of India and in the larger context of nurturing national language Hindi, to protect and promote Bhojpuri language, literature, culture and arts. Under Bye-laws No.4 officials of the Academy include the Chairman who is required to be a nominee of the Government of Bihar for a tenure of three years but, if necessary, he can be renominated. Chairman has been given the power and duty to keep control over the funds, income and expenses of the Academy, besides providing direction and suggestions to other functionaries. The Director is also required to be an appointee of the State Government. His salary and service conditions are in the hands of the State Government. After a tenure of three years he can be re-appointed by the State Government. Being the Chief Executive Officer he is responsible for all the administrative works and for maintaining Bank Accounts and supervision of other financial matters. The Executive Committee of the Academy is to be constituted by the State Government in which the Chairman, Director of the Academy as well as the Commissioner of Education Department and the Commissioner of Finance Department, Government of Bihar are to be the members by virtue of their office. The Chairman of All India Bhojpuri Sahitya Samelan is also at Ex.officio member and besides him, 12 other members shall be persons nominated by the State Government. The powers and duties of such Executive Committee are written in detail which include creation of funds and posts after obtaining prior permission of the State Government. Bye-laws- 7 mentions the source 6 of income to be the grants received from the Government, donations from other sources and income from sale of published materials or other cultural activity. The fund of the Academy is required to be maintained in any Branch of the State Bank of India to be managed by the Director and on any cheques for an amount of above Rs. 2,000/-, counter-signature of the Chairman is necessary. 10. By-laws- 10 provides for dissolution of the Academy which is possible by a resolution of majority of 3/5 of the total members. Even if the resolution is in favour, it cannot be dissolved without the consent of the State Government. After the dissolution the assets will not go to the members of the society but to any other institutions having similar objects or to the State Government as per the decision by a majority of 3/5 members of the Committee. Any change in the Bye- laws can be made by the State Government either on the suggestion of the society or on its own initiative. 11. So far as the legal principles relevant for deciding the main issue are concerned, from the submissions of the parties it is clear that Constitution Bench judgment of the Supreme Court in the case of Pradeep Kumar Biswas Vrs. Indian Institute of Chemical Biology and others, reported in (2002) 5 SCC 111 is applicable as a relevant and binding precedent in which the Supreme Court considered all the relevant aspects for deciding as to when a body when can be said to fall within the scope of a term „State‟ or other authorities under Articles 12 and 13(2) of the Constitution. The majority view overruled the earlier decision of the Supreme Court in the case of Sabhajit Tiwary v. Union of India and others, reported in 7 (1975) 1 SCC 485. After indicating the reasons as to why the more liberal and extended interpretation has become necessary and after considering the earlier law, in paragraph-40 the law was summarized in following words: “ The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be- whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.” 12. Applying the cumulative facts theory, in the present case also it has to be seen whether the Academy is financially, functionally and administratively dominated by or is under the control of the Government and whether such control is particular to the Academy and pervasive 13. On the facts it would be relevant to consider Annexures-1 and 2 annexed with the memorandum of appeal which show that by resolution No. 520 dated 20th March, 1978 the Government of Bihar decided to establish Bhojpuri Academy for development of Bhojpuri language, literature and other associated matters, including cultural activity. The first resolution contained in Annexure-1, dated 20th March 1978 appears to have been modified to a limited extent by Annxure-2 in which it is mentioned that the said 8 memo No. 520 dated 20.03.1978 is being applied to Annexure-2 also although it was issued on 16.06.1978. By Annexure-2 the earlier decision that the Academy shall be a registered autonomous institution was deleted and instead it was clarified that the Bhojpuri Academy established by the government under that resolution shall be managed by an Executive Committee and a general committee so that the academy may achieve its objectives for which the State Government, i.e., the Education Department shall make available the annual grants. For the year 1977-78 an amount of Rs. 100000/- was being made available as grant. Paragraph-4 of Annexure-2 further shows that although the decision to register the Academy as an autonomous society was modified, it was decided that for managing the Academy and to achieve its purposes, its activities shall be carried out as per provisions in the Memorandum of Association and the Bye- laws. 13. It was on account of Annexure-2 that it has been submitted on behalf of the appellant- petitioner that the Academy subsequently ceased to be treated as a registered society and is being run and managed without elections as an institution of the Government of Bihar. But even as per Annexure-2 the Academy has to be managed in accordance with the provisions of Memorandum and Bye-laws. In our view, for the issue at hand, not much would depend on the fact whether the Academy was required to be a registered society or not. In any case it is being run as per memorandum and Bye-laws. 13. On a plain reading of the Memorandum & Bye-laws and analysis of the constitution of the Academy, its officials and their functions, it is found that the Academy is under pervasive control of 9 the Government of Bihar which appoints its Chairman, Director and almost all the members of the Executive Committee as its nominees. The funds are not in the hands of any private person or body. Rather the funds and grants-in-aid made available by the State Government are required to be kept in Bank account and is operated by the Chairman and the Director who are appointees of the State Government. Thus, it can be safely inferred that in the light of all the cumulative facts brought on record by the parties, Bhojpuri Academy is financially, functionally and administratively under the control of the Government of Bihar. Such control is particular to the Academy and not merely regulatory under any law. The control is all pervasive. Hence, on the parameters indicated by the Apex Court in the case of Pradeep Kumar Biswas (supra ) we have no difficulty in holding that respondent no.1, Bhojpuri Academy, has to be treated as “State” within the meaning of the term under Article 12 of the Constitution. 16. Having answered the main issue, now it is to be considered as to what relief can be granted to the appellant- petitioner. To our dismay, the academy has not given the particulars of the dues which may be treated as admitted dues. In course of submission, it was made clear by the learned counsel for the Academy that some of the dues are admitted dues but are not being paid by the Academy because it is in poor financial health due to meager amount of grants- in-aid. It was submitted by learned counsel for the Academy that even the staff of the academy working on sanctioned posts are not getting their full salary regularly due to paucity of funds. He has suggested that if a direction is issued to the Academy to pay the admitted dues to the appellant- petitioner then a simultaneous direction may be issued 10 to the State Government to make available necessary funds by grants- in-aid so that such admitted dues may be paid to the appellant- petitioner within a reasonable time. No doubt on behalf of the State it was argued that Academy cannot be treated to be “State” within the meaning of the term under Article 12 of the Constitution, but it is not their stand that funds necessary to meet the salary and dues of the employees of the Academy should not be paid on account of deficiency in the grants by the Government. 17. Having considered the nature of grievance of the appellant- petitioner and the stand of the respondents, we are not inclined to adjourn the matter only for knowing the details of the admitted dues. Hence, respondent no.1, Bhojpuri Academy is directed to examine the details of the claim indicated by the appellant- petitioner in paragraph-4 of I.A. No. 2886 of 2009 in accordance with law so as to determine the admissible dues payable to the appellant- petitioner within a period of one month from today. For payment of such dues a further period of two months is granted and within the same period, respondents no. 2 and 3 are directed to make available to the Bhojpuri Academy required funds specifically for meeting the lawful dues of the appellant- petitioner. The admissible dues are thus to be paid within three months from today. The details of admissible dues along with the reasons in brief for rejecting other claims, if any, should be communicated to the appellant- petitioner within one month so that if he is aggrieved by such decision, he may file a representation before respondent no.1 which should be considered on its own merit in accordance with law within a period of two months. The decision on the representation, if filed, should be conveyed to the appellant- 11 petitioner without any delay and if he is dissatisfied with the decision, he may pursue his remedy in accordance with law. 18. The order under appeal is set aside. The appeal and the writ petition are allowed to the extent indicated above. But there shall be no order as to costs. ( Shiva Kirti Singh, J ) ( Birendra Prasad Verma, J ) Patna High Court Dated, the 20th July, 2010 B.Tiwary/ A.F.R.