IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 08.12.2011 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P.NOS.14124 TO 14126 OF 2011 AND CONNECTED MISCELLANEOUS PETITIONS Vender Vendan .. Petitioner (in W.P.No.14124 of 2011) Dr.Aiswarya Rajyalakshmi .. Petitioner (in W.P.No.14125 of 2011) K.Nanda Kumar .. Petitioner (in W.P.No.14126 of 2011) Versus 1.The Government of India Rep.by its Under Secretary National Aids Control Organization Ministry of Health & Family Welfare 9th Floor, Chander Lok Building 36, Janapath, New Delhi – 110 001. 2.The Government of Tamil Nadu Rep.by its Principal Secretary Health & Family Welfare Department Secretariat, Chennai – 600 009. 3.The Project Director Tamilnadu State Aids Control Society No.417, Pantheon Salai Egmore, Chennai – 600 008. .. Respondents (in all W.Ps.) PRAYER in all W.Ps.: Writ Petitions filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records of the impugned advertisement issued by the third respondent dated 05.06.2011 in respect of for filing up the posts of Joint Director (TI), Joint Director (Basic Services), Deputy Director (CCC) respectively, in the office of third respondent and to quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Shri.N.G.R.Prasad (in all W.Ps.) Senior Counsel for Shri.R.Prabhakaran For Respondent-1 : Ms.R.Maheswari (in all W.Ps.) SCGSC For Respondent-2 : Shri.I.Arokiasamy (in all W.Ps.) Government Advocate For Respondent-3 : Ms.Hema Sampath (in all W.Ps.) Senior Counsel for Ms.R.Rathna Thara C O M M O N O R D E R Even though, the interim applications are listed before me, by consent, the Writ Petitions themselves are taken up for final hearing. 2.In view of the common issues involved in all these Writ Petitions, they have been taken up together and a common order is passed. 3.Heard Shri.N.G.R.Prasad, learned senior counsel appearing for the petitioners and Shri.I.Arokiasamy, learned Government Advocate appearing for second respondent as well as Ms.Hema Sampath, learned senior counsel appearing for the third respondent and perused the entire materials available on record. Facts in brief: 4.The third respondent is a Society registered under the Registration of Societies Act, 1975. The Government of Tamil Nadu, in the order passed in G.O.Ms.No.322, Health and Family Welfare Department, dated 22.04.1994 formed the third respondent Society for the speedy implementation of Aids Prevention Activities, with the Secretary to Government, Health and Family Welfare Department, as the President. The Government Order also stipulates that a Senior I.A.S. Officer should be the full time Project Director and Secretary of the Society. As per the Government Order, the third respondent is functioning under the Health and Family Welfare Department. 5.Almost all the members of the Governing Body are higher officials from the State Government. The control of Administration and Management of the affairs of the Society are vested with the Governing Body. The service rules governing the employees of the third respondent were approved by the Government in G.O.Ms.No.321, Health and Family Welfare Department, dated 29.09.2008. The amended https://hcservices.ecourts.gov.in/hcservices/ service rules were once again approved by the Government in G.O.Ms.No.132, Health and Family Welfare Department, dated 27.04.2009. 6.All the three writ petitioners have been appointed on contractual basis for a period of one year. Thereafter, the period of service of the petitioners were extended by the third respondent. The appointments have been made on temporary basis. As per the guidelines, the employees, who have performed satisfactorily, are to be given fresh contracts for the subsequent years. 7.The Office Order issued by the Government of India, Ministry of Health and Family Welfare stipulates that the contractual posts are temporary and project-tied. It also states that all the contractual posts are only for the duration of the project period and co-terminus with the project. Clause 12 of the said Office Order mandates that all contractual posts would be renewed every year, based on the assessment of performance of the employee concerned. 8.By the 60th meeting of the Executive Committee dated 28.03.2011 of the third respondent, a policy decision was taken, by which all the Officers, who had already put in three years of service, were given extension for a period of three months with effect from 31.03.2011. Consequently, it was decided unanimously by the Executive Committee to call for fresh appointments by conducting recruitment through advertisement. Accordingly, extensions have been given to the petitioners for a period of three months by the order dated 18.04.2011 ending till 30.06.2011. In the meantime, an advertisement was also made in the vernacular language calling for the applications for the purpose of filling up of all the posts. Challenging the advertisement made by the third respondent dated 05.06.2011, these petitioners, being the employees, who were in erstwhile contract till 30.06.2011, have filed the present Writ Petitions. Submissions of the petitioners: 9.Shri.N.G.R.Prasad, learned senior counsel appearing for the petitioners submitted that a conjoint reading of Clauses 5 and 12 of the Office Order dated 15.10.2007 would lead to the irresistible conclusion that the petitioners will have to be continued till the completion of the project, which would end in the year 2012. There is nothing on record to suggest that the petitioners' performances were bad. Even though the initial appointments were for a period of one year, the petitioners are entitled to continue till the completion of the project. There is absolutely no basis for calling for the notification. When the work of the petitioners is co-terminus with the project, the petitioners would acquire a vested right to continue more so when the performance was not found to be unsatisfactory. 10.In so far as the contentions raised by the learned senior https://hcservices.ecourts.gov.in/hcservices/ counsel for the third respondent on the maintainability of the Writ Petitions is concerned, the learned senior counsel appearing for the petitioners submitted that one has to see the object of the third respondent Society and the nature of the control of State and Central Governments so as to come to the conclusion that the third respondent is an authority under Article 12 of the Constitution of India. All the members of the Executive Committee and the Governing Body are admittedly high Government Officials. The Member Secretary shall be responsible for the day to day administration being the Chief Executive of the Society. The Government has got the pervasive control over the third respondent and all the major decisions have been taken only in consultation with the Government. Therefore, the learned senior counsel submitted that the Writ Petitions are maintainable in law. In support of his contentions, the learned senior counsel has relied upon the judgment of this Court in W.P.No.11079 of 2009 dated 08.09.2009. The learned senior counsel also submitted that another judgment relied upon by the third respondent rendered in W.P.No.11672 of 2009 dated 25.11.2009 as confirmed in W.A.No.1895 of 2009 dated 19.10.2010 cannot be applied to the present case, as the subject matter of the said case was pertaining to the resolution. Reliance was also made on the judgments of the Honourable Apex Court in S.U.M.PRASAD vs. ANDHRA PRADESH STATE FEDERATION OF COOPERATIVE SPINNING MILLS LIMITED AND OTHERS [(2009) 16 SCC 320] and MOHD. ABDUL KADIR AND ANOTHER vs. DIRECTOR GENERAL OF POLICE, ASSAM AND OTHERS [(2009) 6 SCC 611]. Therefore, the learned senior counsel submitted that the Writ Petitions will have to be allowed. Submissions of the third respondent: 11.Per contra, the learned senior counsel appearing for the third respondent submitted that the Writ Petitions are not maintainable, as the third respondent is not an authority under Article 12 of the Constitution of India. The third respondent has its existence as a Society registered under the Registration of Societies Act, 1975 and therefore, it is not an instrumentality of the State. In support of the said contention, reliance has been made by the order of this Court in W.P.No.11672 of 2009 dated 25.11.2009 as confirmed in W.A.No.1895 of 2009 dated 19.10.2010. Apart from the above, the learned senior counsel has made reliance upon the subsequent orders of this Court in W.P.No.13641 of 2011 dated 21.06.2011 and W.P.No.5245 of 2011 dated 27.06.2011, W.P.Nos.14183 to 14185 of 2011 dated 14.09.2011. Reliance was also made on the judgments of this Court and the Honourable Apex Court in M.MAHENDRAVARMAN vs. THE GOVERNMENT OF TAMIL NADU [2009 (5) CTC 237], SALIM ALI CENTER vs. DR.C.P.GEEVAN [(2010) 4 MLJ 1180] and HARYANA RAJYA SAINIK BOARD-CUM-DEFENCE AND SECURITY RELIEF FUND vs. MOHAN LAL [(2008) 10 SCC 133]. 12.In so far as the merits of the cases are concerned, the learned senior counsel submitted that admittedly the appointments of https://hcservices.ecourts.gov.in/hcservices/ the petitioners are temporary and on contractual basis and thus the petitioners do not have any vested right. Therefore, in the absence of any legal right, it is not open to the petitioners to insist them that they should be continued. The decision made by the third respondent is a policy decision and the petitioners have not challenged the extension made upto 30.06.2011 in pursuant to the 60th Meeting of the Executive Committee. 13.In so far as the petitioners in W.P.No.14125 and 14126 of 2011 are concerned, they cannot maintain the Writ Petitions after having participated in the selection process pursuant to the notification issued. It is not as if the petitioners alone have been targeted selectively. A policy decision has been taken covering all the employees, who have been for three years in service. The petitioner in W.P.No.14124 of 2011 having been appointed by the third respondent, cannot contend that the subsequent notification will have to be made only by the first respondent in the Writ Petition. Therefore, the learned senior counsel submitted that the Writ Petitions will have to be dismissed on merits as well. Maintainability of the Writ Petitions: 14.The facts narrated above would show that almost the entire Committee Members of the Governing Body and the Executive Committee are from the Government. The following is the Constitution of the Governing Body of the third respondent: "b)Governing Body of the Society will consist of the following members: 1. Secretary to Government, Health & Family President Welfare Dept. 2. Spl. Secretary or Additional Secretary to Vice President Government, H & FW Dept. 3. Secretary to Government, Member Finance Department 4. Secretary to Government, Member P & D Department 5. Secretary to Government, Member Social Welfare Dept. 6. Secretary to Government, Member Education Department 7. Addl. Secretary to Government, Member H & FW Dept. https://hcservices.ecourts.gov.in/hcservices/ 8. Director of Medical Education Member 9. Director of Medical & Rural Health Services Member 10. Director of Public Health & Member Preventive Medicine 11. Project Director Member Secretary 12. Director of Social Welfare Member 13. Director of Drug Control Member 14. Addl. Director (FW) Member State Family Welfare Bureau 15. Addl. Director (IEC) Member State Family Welfare Bureau 16. Dr.Anbarasu, M.B.M.S., Member 36, Ramanujam Nagar, Chennai – 23 17. Dr.D.Balasubramaniam, M.S., Member Lakshmibala Nursing Home, Chennai. 18. 19, 20 Three Non-Governmental Member Organisations to be nominated by the President (The term of the Non- Governmental Organisations shall be for two years at a time. 21. Director of School Education Member 22. Director of Collegiate Education Member" 15.The list of Executive Committee Members are provided hereunder: "IV. LIST OF EXECUTIVE COMMITTEE MEMBERS 1. Thiru.S.Sivasubramanian, IAS, President Secretary to Govt. H. & FW Dept. 2. Tmt.Susan Mathew, IAS, Vice President Spl. Secretary to Govt. H & FW Dept. 3. Thiru.N.Narayanan, IAS, Member Secretary to Government, Finance Dept. 4. Thiru.M.B.Pranesh, IAS, Member Secretary to Government, P & D Dept. https://hcservices.ecourts.gov.in/hcservices/ 5. Thiru.R.Kirubakaran, IAS, Member Secretary to Government, S.W. Dept. 6. Jayanthi, IAS, Member Secretary to Government, Education Department 7. Thiru.P.R.Bindhumadhavan, IAS, Member Secretary Project Director 8. Thiru.S.Ramasundaram, IAS, Member Addl. Secretary to Government Health & FW Dept. 9. Dr.M.Sushila Raj, Member Director of Medical Education 10. Dr.P.Gnanasuriyan, Member Director of Medical and Rural Health Services 11. Dr.K.V.Shantha, Member Director of Public Health and Preventive Medicine 12. 13,14. Three Non-Governmental Member Organisation to be nominated by the President 15. Project Director Reproductive and Member Child Health Project" 16.Similarly, all the Committee Members are high Government Officials and there is no dispute on these facts. The Government Order relied upon by the learned senior counsel appearing for the third respondent itself would exemplify the fact that the object of the third respondent Society is in the public interest. The third respondent Society has been created by the Government vide G.O.Ms.No.322, Health and Family Welfare Department, dated 22.04.1994 for the quick implementation of Aids Prevention Activities. Therefore, keeping in mind the said object, the third respondent Society has been created with the high officials from the Government. The Member Secretary / Project Director is the Chief Executive of the Society, being a high official of the Government. The auditing of the third respondent Society is done by an auditor appointed by the Accountant General of Tamil Nadu. Considering these facts, this Court in W.P.No.11079 of 2009 dated 08.09.2009 has held as follows: "11.As rightly pointed out by the learned counsel for the petitioner, the respondent https://hcservices.ecourts.gov.in/hcservices/ society is headed by an officer in the cadre of Indian Administrative Service appointed by the Government of Tamil Nadu. The members of the committee headed by an I.A.S., officer, are mostly the officials drawn from the Government. Only some are Non Governmental Organisations (NGOs). All the decisions, more particularly, the policy decisions are taken by the Committee only with the approval of the Government about which, there can be no dispute. Apart from that, the society has got his own service Rules in respect of its employees. The said service rules was approved by the Government in G.O.Ms.No.321, Health and Family Welfare (EAP1/2) Department, dated 29.09.2008 and G.O.Ms.No.132, Health and Family Welfare (EAP1/2) Department, dated 27.04.2009. The said service Rules was also amended. If the society has got no pervasive control of the Government, there would have been no need for the society to get the service rules approved by the Government. The very fact that the service rules has been approved by the Government and the very fact that most of the officials who are managing the affairs of the society are Government Officials, there can be no difficulty in holding that the Government has no pervasive control over the respondent." 17. While considering the question as to whether a particular authority is an instrumentality of the State or not, this Court has to see the composition of the said authority and the control of the Government over it. Merely because the Society has been registered under the Registration of Societies Act, 1975, it cannot be said that it is not amenable to the jurisdiction of this Court. Considering the very same issue, it has been held in SALIM ALI CENTER vs. DR.C.P.GEEVAN [(2010) 4 MLJ 1180] by the Honourable Division Bench of this Court, in which, this Court is also a party in the following manner: "23.............The mere fact that the appellant is having its own bye-laws, rules and regulations by itself cannot be a reason to hold that it is not an instrumentality of the State. It is also seen from the records that when there was an unrest in the appellant society, the matter was reported to the Ministry of Environment and Forests, Government of India with a request to depute a suitable officer to make a fact finding study and give a report with suitable recommendations to the governing council. The above said letter of the appellant https://hcservices.ecourts.gov.in/hcservices/ dated 07.06.1995 itself is a clear indication of the control of the Government of India over the 1st appellant. In the judgment reported in (2002) 5 SCC 111 [PRADEEP KUMAR BISWAS v. INDIAN INSTITUTE OF CHEMICAL BIOLOGY], the Hon'ble Apex Court has held as follows: "40.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 is 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." Hence applying the above said principle laid down by the Hon'ble Apex Court we are of the considered view that the 1st appellant is an authority under Article 12 of the Constitution of India and therefore amenable to the jurisdiction of this Hon'ble Court. In a recent judgment reported in 2009 (2) CTC 372 [STATE OF U.P. AND ANOTHER v. RADHEY SHYAM RAI], the Hon'ble Supreme Court after considering the earlier judgments has held as follows: "14.The documents produced before the High Court reveal that 80 to 90% of the expenditure of Sansthan was met out of the funds made available to it by the Government. The majority of the office bearers of the Governing Council were holders of various offices of the Government. It had, thus, a dominance of the holders of the office in the Government of Uttar Pradesh; the Minister-Incharge of Cane Department being its Ex-officio Chairman of the Governing Council. He is the Chief Executive Authority. The Director and Accounts Officer are also the Government servants and the Sansthan is not free to appoint anybody on those posts who is not a Government servant. This itself clearly shows that the composition and constitution of Sansthan and its https://hcservices.ecourts.gov.in/hcservices/ Governing Council was nothing but a show of the Government and only a cover of the Society was given. Rule 41 of the Rules of Sansthan provides that the Governor shall have power to issue any directives to the Sansthan concerning any matter of public importance and the Sansthan shall give immediate effect to the directives so issued. Furthermore, Rule 41(b) of the Rules of Sansthan reads as under: "The Governor of Uttar Pradesh may call for such returns, accounts and other information with respect to the properties and activities of the society as may be required by him from time to time." The functions of the Sansthan are public functions." Thus, the Hon'ble Supreme Court was pleased to hold that in a case where a society is discharging public functions and when the directors are Government servants coupled with the fact 80 to 90% of the expenditure of the society was met by the Government, it has to be held that such a society is a State under Article 12 of the Constitution of India. In the judgment reported in (2005) 4 SCC 649 [ZEE TELEFILMS LTD. AND ANOTHER v. UNION OF INDIA AND OTHERS], the Hon'ble Supreme Court by majority view has held that even in a case where a private body to exercise its public functions and even it is not a part of a State, the aggrieved person has a remedy under the Constitution by way of writ petition under Article 226 of the Constitution of India. Therefore, we are of the considered view that the 1st appellant is amenable to the jurisdiction of this Court under Article 226 of the Constitution of India, since admittedly it is discharging the public functions alone." Therefore, in the light of the ratio laid down therein, in which, the Honourable Division Bench of this Court has taken note of the principles enunciated by the Honourable Apex Court in the judgments referred supra, this Court is of the view that the Writ Petitions are maintainable. 18.The learned senior counsel appearing for the third respondent has made reliance upon the judgments of this Court in W.P.No.11672 of 2009 dated 25.11.2009 as confirmed in W.A.No.1895 of 2009 dated https://hcservices.ecourts.gov.in/hcservices/ 19.10.2010. Apart from the above, the learned senior counsel has also made reliance upon the subsequent orders of this Court in W.P.No.13641 of 2011 dated 21.06.2011 and W.P.No.5245 of 2011 dated 27.06.2011, W.P.Nos.14183 to 14185 of 2011 dated 14.09.2011. A perusal of the order of the Honourable Division Bench in W.A.No.1895 of 2009 dated 19.10.2010 would show that it was dealing with the resolution passed. Therefore, under those circumstances, it was held that the Writ Petitions were not maintainable. Further, the Division Bench of this Court did not deal with the legal issues raised therein. In W.A.No.1895 of 2009 dated 19.10.2010 and W.P.Nos.14183 to 14185 of 2011, dated 14.09.2011, this Court merely followed the judgment of the Honourable Division Bench rendered earlier in W.A.No.1895 of 2009 dated 19.10.2010. 19.As discussed above, the subject matter of the Writ Petition in W.P.No.11672 of 2009 dated 25.11.2009 is a resolution passed by the third respondent and the reliance has been made by the learned single Judge of this Court on the judgment of the Full Bench dealing with the maintainability of the Writ Petition filed against the Co- operative Society. Therefore, this Court is of the view that in the light of the judgment of the Division Bench which took note of the pronouncement of the Honourable Apex Court and applying the ratio laid down therein to the facts of the case, the Writ Petitions are maintainable as against the third respondent, being an authority under Article 12 of the Constitution of India. Analysis: 20.Now coming to the merits of the case, admittedly the petitioners in W.P.Nos.14125 and 14126 of 2011 have participated in the subsequent selection process conducted in pursuant to the impugned notification. Therefore, having taken part in the selection process and having failed to get themselves selected, it is not open to them to take the stand that they should be allowed to continue as per the earlier orders of appointments. Further, the petitioners in W.P.Nos.14125 and 14126 of 2011 are not questioning the non-selection in pursuance to the selection process. Therefore, this Court is not inclined to go into the same, even though submissions have been made by the learned senior counsel appearing for the petitioners. Even otherwise, until and unless perversity is shown in the selection process or it is tainted with mala fide, this Court cannot go into the same. 21.It is not as if the petitioners have been terminated on the ground that their services were not satisfactory. A policy decision has been made in pursuance to the 60th meeting of the Executive Committee held on 28.03.2011 and the decision to extend the services of the petitioners till 30.06.2011 has been communicated to them. For the reasons known to them, they have not chosen to challenge the same. Further, it is also to be seen that relieving orders were also https://hcservices.ecourts.gov.in/hcservices/ issued to the petitioners, which were also not challenged. Therefore, without challenging the orders passed against them, it is not open to the petitioners to challenge the consequential notification issued. There is nothing on record to suggest that the third respondent is not the competent authority to issue the notification. The decision has been made as a policy decision to call for fresh appointments for those posts, in which the erstwhile employees were working for a period of three years. This Court does not find any perversity in the decision taken and the decision has been taken by taking into consideration of the project in mind. When such a decision is taken, it is not open to this Court to question the same by substituting its own views. 22.It is to be seen that the petitioners were also allowed to take part in the selection process. While considering the object of the third respondent in preventing and controlling of AIDS, it has to be seen that there is nothing wrong in the decision made to get the best persons available for the implementation of the project. Therefore, even assuming the petitioners can continue to do the job which they were doing earlier it is for the third respondent to choose the best persons available. Such a course adopted by the third respondent cannot be called as arbitrary. 23.The reliance made