1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Veerbhadra Singh Sisodia v. Rajasthan Council of and others Primary Education and Anr. (1)S.B.CIVIL WRIT PETITION NO.4945/2004 Kanhaiya Lal Dashora v. Rajasthan Council of and others Primary Education and Anr. (2)S.B.CIVIL WRIT PETITION NO.5855/2005 Ganpat Singh Panwar v. Rajasthan Council of and others Primary Education and Anr. (3)S.B.CIVIL WRIT PETITION NO.6173/2005 Devendra Kumar v. State of Rajasthan and Anr. and Anr. (4)S.B.CIVIL WRIT PETITION NO.5894/2004 Hari Ram Dindor v. Rajasthan Council of and others Primary Education and Anr. (5)S.B.CIVIL WRIT PETITION NO.7161/2005 Brajendra Kumar Srivastava v. State of Rajasthan and Anr. and Anr. (6)S.B.CIVIL WRIT PETITION NO.5505/2004 Mohan Lal v. Rajasthan Council of and others Primary Education and Anr. (7)S.B.CIVIL WRIT PETITION NO.765/2006 Dinesh Kumar Sharma v. Rajasthan Council of Primary Education and Anr. (8)S.B.CIVIL WRIT PETITION NO.7084/2005 2 Alpesh Gangawat v. Rajasthan Council of and others Primary Education and Anr. (9)S.B.CIVIL WRIT PETITION NO.568/2006 Smt. Heena Pandya v. Rajasthan Council of and others Primary Education and Anr. (10)S.B.CIVIL WRIT PETITION NO.3354/2006 PETITIONS UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. Date of Order :: 28th March, 2007 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. M.Mridul, Sr.Advocate, assisted by Mr. P.S.Chundawat, for the petitioners. Mr. N.M.Lodha, Additional Advocate General with Mr. D.S.Rajvi, for the respondents. .... BY THE COURT : REPORTABLE Prior to independence of the country the colonial regime established a system of education that had limited access and that denied mass education with view to emphasise on confirmism to socio, political and economic system prevailing in the country in those times. On account of that the Indian National Movement desired for an alternative educational system with an approach of “Education for Life” as said by Mahatma Gandhi and “Education for Self-development” as 3 reflected in great educational experiment made by Rabindra Nath Tagaur by establishing Shanti Niketan. The founding fathers of our constitution recognised universalisation of educational system as a national goal, being a most effective weapon for nation building. The constituent assembly while adopting, enacting and giving to ourselves the Constitution of India under the directive principles of the State policy envisaged that the State shall endeavour to provide free and compulsory education for children upto 14 years of age within a period of 10 years. The education policies including the National Policy on Education 1986 (as revised in 1992) resolves to provide free and compulsory education of satisfactory quality to all children upto 14 years of age before commencing of 21st Century. The parliament by the Constitution (86th Amendment) Act-2002 by inserting Article 21-A made the free and compulsory education to all children of the age of 6 to 14 years as a fundamental right in the terms that “State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may by law determine”. By the same Amendment Act, the fundamental duty to provide opportunities for education to their children or wards, as the case may be, between the age of 6 to 14 years is prescribed for parents and guardians. To 4 realise ever cherished desire of Indian masses to have a literate nation, the Government of India and various State Governments made sincere efforts by introducing and implementing various projects for formal and non- formal education and the latest but not least is Sarva Shiksha Abhiyan (hereinafter referred to as “the SSA”), with following objects:- *All children in school, Education Guarantee Centre, Alternate School, 'Back-to-School' camp by 2003; *All children complete five years of primary schooling by 2007 *All children complete eight years of elementary schooling by 2010 *Focus on elementary education of satisfactory quality with emphasis on education for life *Bridge all gender and social category gaps at primary stage by 2007 and at elementary education level by 2010 *Universal retention by 2010” To implement “District Primary Education Project” (hereinafter referred to as “the DPEP”), a society in the name of Rajasthan Council of Primary Education (hereinafter referred to as “the Council”) was constituted and registered under the Rajasthan 5 Societies Registration Act, 1958 (hereinafter referred to as “the Act of 1958”). The Council was also nominated as nodal agency to execute the SSA in the State of Rajasthan, thus, by a notification (Anx.11) published in a daily newspaper “Rajasthan Patrika” Pali edition dated 26.9.2004 the Council invited eligible and desirous persons to face interviews in respect of appointments on deputation for various posts under SSA. The grievance of the petitioners is arising from the notification referred above, however, as a preliminary objection a question is raised on behalf of the respondent Council about its amenability to writ jurisdiction being not an agency, instrumentality or authority of the State for the purpose of Part-III of the Constitution, hence before touching to the merits of the cases, the appropriate course considered is to examine merits of the objection. The test to examine nature of a body as to whether that is a State, its agency or instrumentality are settled by Hon'ble Supreme Court in its various authoritative pronouncements. In the case of Ramana Shetty v. The International Airport Authority of India and others (AIR 1979 SC 1628), Hon'ble Supreme Court summarised some of the factors necessary to be considered in 6 determining whether a body is an agency or instrumentality of the Government. The factors so summarised are as follows:- “19. xxxxx whether there is any financial assistance given by the State, and if so, what is the magnitude of such assistance whether there is any other form of assistance, given by the State, ad if so, whether it is of the usual kind or it is extra-ordinary, whether there is any control of the management and policies of the corporation by the State and what is the nature and extent of such control whether the corporation enjoys State-conferred or State protected monopoly status and whether the functions carried out by the corporation are public functions closely related to governmental functions.” While gathering some of the essential factors, Hon'ble Supreme Court also observed in the aforesaid case that this particularisation of the relevant factors is exhaustive because with increasing assumption of new tasks, growing complexities of management and administration and the necessity of continuing adjustment in relations between the corporation and Government calling for flexibility, adaptability and innovative skills, it is not possible to make an exhaustive enumeration of the tests. In the case of Ajay Hasia etc. v. Khalid Mujib Sehravardi and others etc. (AIR 1981 SC 487), 7 the Apex Court held that the mode of creation of a body is immaterial for the purpose of determining as to whether that specific body is State, its agency or instrumentality. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society created under or created by a statute. In the case of Chander Mohan Khanna v. The National Council of Educational Research & Training and others (AIR 1992 SC 76), while considering the same issue, Hon'ble Supreme Court held as under:- “2. There are only general principles but not exhaustive test to determine whether a body is an instrumentality or agency of the Government. Even in general principles, there is no cut and dried formula which would provide correct division of bodies into those which are instrumentalities or agencies of the Government and those which are not. The powers, functions, finances and control of the Government are some of the indicating factors to answer the question whether a body is “State” or not. Each case should be handed with care and caution. Where the financial assistance from the State is so much as to meet almost entire expenditure of the institution, or the share capital of the corporation is completely held by the government, it would afford some indication of the body being impregnated with governmental character. It may be a 8 relevant factor if the institution or the corporation enjoys monopoly status which is State conferred or State protected. Existence of deep and pervasive State control may afford an indication. If the functions of the institution are of public importance and related to governmental functions, it would also be a relevant factor. These are merely indicative indicia and are by, no means conclusive or clinching in any case [See (i)Sukhdev Singh v. Bhagat Ram, (1975)1 SCC 421 : (AIR 1975 SC 1331); (ii)R.D.Shety v. International Airport Authority, (1979)3 SCC 489: (AIR 1979 SC 1628); (iii)Ajay Hasia v. Khalid Mujib Sehravardhi, (1981)1 SCC 722 : (AIR 1981 SC 487) and (iv)Som Prakash Rekhi v. Union of India, (1981)1 SCC 449 : (AIR 1981 SC 212)]. 3. Art.12 should not be stretched so as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression “State”. A wide enlargement of the meaning must be tempered by a wise limitation. It must not be lost sight of that in the modern concept of Welfare State, independent institution, corporation and agency are generally subject to State control. The State control does not render such bodies as “State” under Article 12. The State control, however, vast and pervasive, is not determinative. The financial contribution by the State is also not conclusive. The combination of State aid coupled with an unusual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of 9 the State may largely point out that the body is “State”. If the Government operates behind a corporate veil, carrying out governmental activity and governmental functions of vital public importance, there may be little difficulty in identifying the body as “State” within the meaning of Art. 12 of the Constitution. [See: (i) P.K.Ramchandra Iyer v. Union of India, (1984)2 SCC 141 : (AIR 1984 SC 541); (ii) Central Inland Water Transport Corporation v. Brojonath Gangoli, (1986)3 SCC 156 : (AIR 1986 SC 1571); and (iii) Tekraj Vasandhi alias K.L. Basandhi v. Union of India, (1988)2 SCC 260 : (AIR 1988 SC 469)].” In the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and others [(2002)5 SCC 111], Hon'ble Apex Court summed up its conclusion on the same issue as under:- “98.(1)Simply by holding a legal entity to be an instrumentality or agency of the State it does not necessarily become an authority within the meaning of “other authorities” in Article 12. To be an authority, the entity should have been created by a statute or under a statute and functioning with liability and obligations to the public. Further, the statute creating the entity should have vested that entity with power to make law or issue binding directions amounting to law within the meaning of Article 13(2) governing its relationship with other people or the affairs of other people – 10 their rights, duties, liabilities or other legal relations. If created under a statute, then there must exist some other statute conferring on the entity such powers. In either case, it should have been entrusted with such functions as are governmental or closely associated therewith by being of public importance or being fundamental to the life of the people and hence governmental. Such authority would be the State, for, one who enjoys the powers or privileges of the State must also be subjected to limitations and obligations of the State. It is this strong statutory flavour and clear indicia of power – constitutional or statutory, and its potential or capability to act to the detriment of fundamental rights of the people, which makes it an authority; though in a given case, depending on the facts and circumstances, an authority may also be found to be an instrumentality or agency of the State and to that extent they may overlap. Tests 1, 2 and 4 in Ajay Hasia enable determination of governmental ownership or control. Tests 3, 5 and 6 are “functional” tests. The propounder of the tests himself has used the words suggesting relevancy of those tests for finding out if an entity was instrumentality or agency of the State. Unfortunately thereafter the tests were considered relevant for testing if an authority is the State and this fallacy has occurred because of difference between “instrumentality and agency” of the State and an “authority” having been lost sight of sub silentio, unconsciously and undeliberated. In our opinion, and keeping in view the meaning which “authority” carries, the question 11 whether an entity is an “authority” cannot be answered by applying Ajay Hasia tests. (2)The tests laid down in Ajay Hasia case are relevant for the purpose of determining whether an entity is an instrumentality or agency of the State. Neither all the tests are required to be answered in the positive nor a positive answer to one or two tests would suffice. It will depend upon a combination of one or more of the relevant factors depending upon the essentiality and overwhelming nature of such factors in identifying the real source of governing power, if need be by removing the mask or piercing the veil disguising the entity concerned. When an entity has an independent legal existence, before it is held to be the State, the person alleging it to be so must satisfy the court of brooding presence of the Government or deep and pervasive control of the Government so as to hold it to be an instrumentality or agency of the State.” Applying the tests formulated by Hon'ble Supreme Court, the nature of the respondent Council, that has undertaken the SSA, an ambitious project of the Government, is required to be examined. The Council, a registered society under the Act of 1958, according to its Memorandum of Association, have the objectives as follows:- “(a)To act as a autonomous and independent body for implementation of the Rajasthan 12 Primary Education Project as outlined in the project document to be published by Government of Rajasthan and its revised version that may be prepared on the basis of joint review from time to time. (b)To extend the activities of the Council in selected districts of the State and to extend such specific activities of the Council to any part of the State as may be considered desirable by the State Government. (c)To function as a social mission for bringing about a fundamental change in the primary education system, and through it, in the overall socio-cultural situation. (d)to pursue the following specific objects of the Rajasthan Primary Education Project viz. (i)Universalisation of Elementary Education through (a) access to primary, education for all children upto 14 years of age. (b) Universal participation till they complete the primary stage through formal or non- formal education programme. (c)Universal achievement atleast of Minimum Levels of Learning. (ii)Modification in the educational system to serve the objects of women's equality and their empowerment. (iii)Making necessary intervention to provide equal educational opportunity to children belonging to the Scheduled Castes, 13 Scheduled Tribes and other deprived sections of society. (iv)Making education relevant to the working and living conditions of the people so that skills may be acquired improving in future their ability to cope with problems of livelihood, environment, and mother and child welfare, also developing in them healthy practices of cleanliness and hygienic living.” The Council is governed by a committee that consists of following persons:- “(i)Education Minister Rajasthan State – President (ii)Chief Secretary Government of Rajasthan – Vice President (iii)Secretary to Government Education Department, Government of Rajasthan – Member (iv)Development of Commissioner, Government of Rajasthan – Member (v)Principal Secretary to Govt. Finance Deptt., Government of Rajasthan – Member (vi)Commissioner, Family Welfare and Secretary, Ayurved – Member (vii)Secretary, Women and Child Development – Member 14 (viii)Secretary to Government Social Welfare, Government of Rajasthan – Member (ix)Special Secretary to Government, Education Department, Government of Rajasthan – Member (x)One person drawn from non-government agencies engaged in education activities in the state to be nominated by the State Government – Member (xi)Upto three heads of relevant State level institutions, engaged in technical resources development to be nominated by the State Government – Members (xii)Representatives of teachers to be nominated by the State Government including women representatives. - Members (a)One person to represent primary teachers. (b)One person to represent instructors and other, functionaries engaged in adult education etc. (c)Two teachers known for their commitment to primary education system, of which atleast one would be a woman. (d)Two heads of Primary Schools known for their initiatives and contributions in elementary education (of which one would be a woman). (xiii)Other ex-officio representatives of the Government of Rajasthan – Member (a)Two heads of District Committees in the selected districts of the Project by 15 rotation with two persons retiring every year on the basis of seniority. (b)Two Heads of Departments whose functions are related to Primary Education. (xiv)Representative of the Central Government – Members Three representatives of the Central Govt., to be nominated by the Ministry of Human Resource Development Department of Education, Govt. of India. (xv)Two persons preferably from NGO's who have distinguished themselves in the area of education for scheduled castes, scheduled tribes and integrated education for the disabled, one person in each category, to be nominated by Central and State Government – Members (xvi)Four women who have distinguished themselves in the areas of Primary Education, non formal education and adult education, two being nominated by the State Government and two by the Central Government – Members (xvii)Director, National Council of Educational Research and Training – Member (xviii)Director, National Institute of Educational Planning and Administration – Member (xix)Secretary, Siksha Karmi Board, Rajasthan – Member 16 (xx)Project Director, Lok Jumbish Parishad Rajasthan – Member (xxi)Director, Literacy and Continuing Education, Rajasthan – Member (xxii)Two eminent educationists of whom one will be nominated by the Central Government and the other by the State Government – Member (xxiii)All members of the Executive Committee not included above – Members (xxiv)State Director D.P.E.P. Rajasthan – Member Secretary.” The source of finance to the Council is Grant in Aid made by the Central Government and State Government for furtherance of its objects. Pertinent to note here that at present Council is receiving aid to execute the SSA by Government of India and Government of Rajasthan. No grant, donation or assistance from foreign agency and other external agencies can be received by the Council without prior approval of the Central Government. The Council is required to maintain proper accounts and other relevant records for the purpose of accounting. It is also subject to the provisions of the Controller and Auditor General (Duties, Powers and Conditions of Service) Act, 1971 (hereinafter referred to as “the Rules of 1971”). The State Government is having power 17 to review the work and progress of the Council and to hold inquiries into the affairs thereof and also to report thereon in such manner as the government may stipulate. In the event of winding up or dissolution of the Council its debts and liabilities, any asset and property shall be dealt with in such manner as the government may determine under the provisions of the Act of 1958. The Council is implementing the SSA, an ambitious project of the Government of India and the Government of Rajasthan and under that project the Council has established a complete administrative set up, therefore, to determine nature of it a broad assessment of the project concerned is also necessary. The projects for universalisation of elementary education undertaken by Government of India or the State Government are part of national policy for building of nation through mass education. The SSA is an effort for universalisation of elementary education by community ownership of the school system. It is a response to the demand for quality, basic education all over the country and is an attempt to provide an opportunity for improvement of human capabilities to all children in a mission mode. It is a programme with a clear time framework for universal elementary education with an opportunity for promoting social justice through basic education. It is also an 18 effort for effective involvement of Panchayat Raj Institutions, Management Committees, Village and Urban Slump Level Committees, Parent Teachers' Association, Mother Teachers' Association, Trible Autonomous Council and other Grass Route Levels Structures in the management of the elementary schools. It is one of the most ambitious projects under the partnership between the Central, State and Local Government. The significance of the SSA can be well noticed with the statement of the Union Minister for Human Resource Development Department that published on October 29, 2004 in daily newspaper “The Hindu”, that reads as follows:- “NEW DELHI, OCT. 28. The Union Human Resource Development Minister, Arjun Singh, today described the Sarva Shiksha Abhiyan (SSA) initiated by his predecessor, Murli Manohar Joshi, as a “national agenda” which should not be affected by political differences. Addressing a conference of Education Ministers from all States and Union Territories here, Mr. Singh said that the SSA was the heart and soul of the education system and urged all States to implement it on a mission mode. Stating that the money collected through the education cess was being parked in a non-lapsable fund, he said: “We have to go beyond paying platitudes and prove ourselves in making SSA a success as we cannot take shelter under excuses of resource crunch anymore.” 19 During the discussions, some Ministers made out a case for continuing with the ongoing pattern of funding even after the Tenth Plan Period wherein the Centre picks up 75 per cent of the bill on SSA with each State giving the remaining 25 per cent. Mr. Singh assured them that he would take up the issue with the Planning Commission during the mid- term appraisal of the Tenth Plan. Under the current scheme, the States will have to pick up 50 per cent of the expenditure from the Eleventh Plan. Responding to his plea that political differences be kept out of the SSA, the Ministers including those from parties outside the United Progressive Alliance committed themselves to the universalisation of elementary education.” The statement of the Minister in most open terms declares the SSA as a “national agenda” and emphasise for its implementation by putting all best efforts. It also make it clear that every citizen of the country is contributing for mass literacy by bearing Education Cess. According to the framework for implementation relating to the SSA declared by Ministry of Human Resource Development, Department of Education and Literacy, the assistance under the programme will be on 85:15 sharing arrangement during 9th plan, 75:25 sharing arrangement during 10th plan and 50:50 sharing thereafter between the Central Government and the 20 State Governments. The State Governments are under obligation to maintain the level of investment in elementary education as it was in 1999-2000. The Government of India for implementing the SSA is releasing its funds direct to the State Implementation Society, i.e. the respondent Council in the present case. No fund other than the assistance given by the Government is available to the respondent society. The management structure of the Council as well as the SSA is having absolute control of the Government. Relevant to note here that a separate department of the elementary education and literacy has been created by the Government of India for implementing the SSA and other programmes of similar nature. In order to facilitate convergence and a holistic prospective a single bureau of education is also constituted. A general council of the SSA, at national level is headed by Hon'ble Prime Minister with the Union Minister for Department of Human Resource Development, as its Vice Chairman. The Secretary, Department of Elementary Education and Literacy is the Vice Chairperson of the executive committee and the Joint Secretary (Elementary Education) is Director General of the national mission of the SSA. The under Secretaries and the Section Officers in the Elementary Education Bureau alongwith the office staff are part of