LETTERS PATIENT APPEAL No.455 OF 2003 (This appeal arises out of an order dated 11th March, 2003 passed in C.W.J.C. No. 8232 of 2001) (a). Smt. Kumud Sinha- Wife (b). Abinash Kumar Sinha- Son (c). Alok Kumar Sinha- Son (d). Smt. Amita Sinha- Daughter (e). Smt. Anamika Sinha- Daughter --------- (PETITIONERS) … APPELLANTS Versus 01. THE STATE OF BIHAR 02. THE BIHAR STATE PHARMACY COUNCIL, THROUGH ITS PRESIDENT, B.M. DAS ROAD, PATNA- 800004 03. THE REGISTRAR, BIHAR STATE PHARMACY COUNCIL, B.M.DAS ROAD, PATNA- 800004 04. THE HEALTH COMMISSIONER, GOVERNMENT OF BIHAR,NEW SECRETARIAT, PATNA 05. THE FINANCE COMMISSIONER, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA ----------- (RESPONDENTS) …. RESPONDENT For the Appellant:- Mr. Madhuresh Prasad & Mr. Rajesh Kumar Verma, Advocates For the Pharmacy Council:- Mr. Uday Chand Prasad, Adovcate For the State:- Mr. Prabhat Kumar Singh, A.C. to G.A.-1 P R E S E N T THE HON'BLE MR. JUSTICE NAVIN SINHA THE HON'BLE MR. JUSTICE JYOTI SARAN Navin Sinha & Jyoti Saran, J.J. The original appellant Akhileshwar Prasad Sinha had filed C.W.J.C. No. 8232 of 2001 seeking the relief for grant of pension pursuant to his superannuation from the Bihar State Pharmacy Council. The writ petition was dismissed. The appellant is stated to have been deceased during the pendency of this appeal on 5.8.2009. I.A. No. 5600 of 2010 has been filed for substituting his legal heirs 2 1 to 5 as mentioned at paragraph-2 of the same. We have heard counsel for the parties on the substitution application. Considering that the claims made in the appeal may have financial implications for the family of the deceased, if allowed, we consider it proper to allow the substitution application. The original appellant shall stand substituted by his legal heirs. The Pharmacy Act, 1948 (hereinafter referred to as the Act), a central enactment, was promulgated for better provision and to regulate the profession and practice of pharmacy. Section 19 of the Act makes it obligatory to establish a State Council and provides for its composition. Section 22 of the Act provides for incorporation of the State Council as a body corporate to be notified by the State in the official gazette having perpetual succession and common seal with power to hold and acquire property both movable and immovable. Section 23 of the Act provides for the appointment of the President and the Vice-President of the State Council from amongst its members. Section 24 of the Act provides the modality for elections in the State Council with the adjudicatory power for such election dispute vested in the State Government. Section 26 of the Act makes provision for the staff, remuneration and allowance by the Council with the previous sanction of the State Government. Section 26 (C) relevant for the present 3 controversy reads as follows:- “Fix the salary and allowance and other conditions of service of the Secretary and other officers and servants of the State Council.” Section 46 vests rule making power in the State Government to carry out the purpose of the Act. The State Government framed Rules notified in the gazette on 14.5.1960 in exercise of power under Section 46 of the Act with regard to qualifications, terms of office, powers and duties of the Registrar and other officers and servants of the State Council. Relevant for the present controversy is Rule 4 (II) which reads as follows:- “The staff of the State Council including the Registrar will be governed by the provisions of the Bihar Service Code.” Rule 2 of the Bihar Service Code (hereinafter referred to as „the Code‟) provides that it applies to all Government Servants under the Rule making control of the State Government. It also applies to the staff attached to the Patna High Court and the Secretariat staff of the Assembly and Council. Rule 36 of the Code defines pensionable service to read as follows:- “Pensionable service means service which qualifies the Government servant performing it to receive a pension from general revenue.” Rule 37 of the Code defines a permanent 4 Government servant as one who holds a lien on a permanent post or would hold a lien on such post had his lien not been suspended. The State Pharmacy Council having been created under a statute as a body corporate, therefore, has its own individual existence as an autonomous body which is not to be equated with the State Government itself. Undoubtedly, as noticed above, the State Government exercises regulatory statutory control over the autonomous Council under Section 19 of the Act by being empowered to make such appointments as a measure of regulatory control over the functioning of the State Council. There can be thus no doubt that the Bihar State Pharmacy Council fulfills the requirements of a “State” under Article 12 of the Constitution of India. The original appellant joined the services of the State Council on 17.7.1961 and superannuated on 31.7.1997. Being aggrieved by denial of any pension he filed C.W.J.C. No. 10888 of 1997. On 29.6.1998 this Court directed his representation to be considered by the Registrar of the State Pharmacy Council by a speaking order. M.J.C. No. 3564 of 1998 was preferred for non- compliance of the order which was disposed off with an observation that the State Council and the State Government must sit down together so that the issue of the pension of the petitioner may be decided expeditiously. This 5 led to a decision by the State Government and the State Council dated 21.8.2001 that employees of the State Council were not eligible for pension. As per Rules they were only entitled to the benefits of Contributory Provident Fund and which has been paid to the petitioner along with interest. C.W.J.C. No. 8232 of 2001, from which the present appeal arises was then preferred on 4.7.2001 but, at no stage has the decision dated 21.8.2001 ever been challenged by the original petitioner. Learned counsel for the appellant has strenuously urged that the State Government issued the notification dated 14.5.1960 in exercise of its rule making powers under Section 46 (2) (f) of the Act, making the provisions of the Bihar Service Code applicable to employees of the State Council. The Bihar Service Code provides for payment of pension and for which the Bihar Pension Rules have been framed. Placing reliance on Rule 2 of the Bihar Pension Rules, it was submitted that it applies to all persons to whom the Bihar Service Code applies. The submission therefore was that no sooner that a conscious decision was taken to make the provisions of the Bihar Service Code applicable to employees of the State Council, the service automatically become pensionable under Rule 36 of the Code read with Rule 2 of the Bihar Pension Rules. Reliance was placed on a decision reported in A.I.R. 1984 SC 1905 6 (2) (SALABUDDIN MOHAMED YUNUS VERSUS STATE OF ANDHRA PRADESH). It was fairly conceded alike before the writ Court that the Contributory Provident Fund amount had been received erroneously and that the appellant was willing to refund the same along with interest in lieu of grant of regular pension. Learned counsel for the State Pharmacy Council opposing the application submitted that by adoption of the Bihar Service Code with regard to the staff of the State Council they did not assume the status of Government Servant so as to be entitled to pension. No conscious policy decision has been taken by the State Council in exercise of powers under Section 26 (C) of the Pharmacy Act to make the service pensionable. The scheme of the State Council only visualizes Contributory Provident Fund in lieu of pension and which the appellant acknowledges having been paid to him. The appeal was therefore liable to be dismissed. The writ Court proceeded to hold that monthly pension was not available to the employees of the Council, but that the scheme of the State Council provided for Contributory Provident Fund in lieu of pension which the petitioner acknowledged to have received and that no allegations have been made of discrimination by grant of pension to any other. The decision dated 21.8.2001 7 adverted to above was adequately noticed to arrive at the finding that the appellant was not entitled to any pension. The Court concluded at paragraph-7 as follows:- “7. It is well settled that the benefit of monthly pension is in the alternative to the benefit of the scheme of contributory provident fund. In other words, those of the employees who enjoy the benefit of monthly pension make their own contribution to a fund known as general provident fund wherein the entire contribution is made by the employee. On the other hand, in organizations where the benefits of contributory provident fund is available to the retired employees, the employer makes a contribution to the same and the employee also makes a contribution as per the details of the rules governing the scheme, and the benefit of monthly pension is not available to such employees. In the present case, the petitioner has not pleaded in the writ petition that he was a member of general provident fund. In spite of repeated queries learned counsel for the petitioner is unable to answer the question whether or not the petitioner was a member of the general provident fund which leads to the irresistible conclusion that the petitioner is not entitled to the benefit of monthly pension.” The original petitioner was an employee of an autonomous statutory body and not the State Government. This position was not seriously contested on part of the appellant. Merely because the autonomous statutory body had the trapping of a “State” shall not vest a deemed status of a Government servant in the appellant by virtue of adoption of the provisions of the Bihar Service Code for regulating relations between the Council and its staff. In 8 2009 (5) SCC 694 (State of Assam Versus Barak Upatyaka D.U. Karmachari Sansthan). The Supreme Court was considering a claim against the Registrar Co-operative Society with pervading State control in context of a claim for release of funds by the State for payment of salary and allowance. This was opposed by the State Government. The Supreme Court on discussion held that having the trapping of a State under Article 12 would not put the organization at par with the State to conclude with regard to the liabilities of the State towards such a body at paragraph 23 as follows:- “23. What clearly holds the field at present is the principle laid down and reiterated by the Constitution Bench of this Court in Steel Authority of India Ltd. V. National Union Waterfront Workers wherein this Court categorically held: (SCC p.27, para 37) “37. We wish to clear the air that the principle, while discharging public functions and duties the government companies/corporations/societies which are instrumentalities or agencies of the Government must be subjected to the same limitations in the field of public law- constitutional or administrative law- as the Government itself, does not lead to the inference that they become agents of the Centre/State Government for all purposes so as to bind such Government for all their acts, liabilities and obligations under various Central and/or State Acts or under private law.” There can be no quarrel with the proposition advanced on behalf of appellant placing reliance on 9 Salabuddin Mohamed Yunus that payment of pension was not the discretion of the State, but was governed by Rules because of person covered by the Rules was entitled to claim pension and no further orders of the authorities were stricto senso required for the purpose pension not being a bounty. Section 26 (C) of the Act vests power in the State Council to fix salary, allowances and „other conditions of service‟ of the servants of the State Council. Undoubtedly, pension would constitute a „condition of service‟. It is not the case of the appellant that the State Council framed any Rules with regard to such conditions of service of its employees much less with the previous sanction of the State Government. What the State Government did in exercise of its Rule making powers under Section 46 (2) (f) of the Act was to lay down the qualifications, the terms of office, the powers and duties of the Registrar and other officers and servants of the State Council. The State Government did not and could not fix their conditions of service. The State Government in view of the statutory provisions of the Pharmacy Act had no jurisdiction to decide the service conditions which were for the State Council alone to decide. The writ Court held that these „conditions of service‟ found reflection in the Contributory Provident Fund scheme which makes pension inapplicable. The 10 irresistible conclusion is that the conditions of service impliedly or expressly adopted by the State Council did not visualize grant of monthly pension. To make a service pensionable is a policy matter to be decided by the employer upon whom the financial implications vest and are not for the Courts to impose. In view of that conclusion, we find it difficult to uphold the argument that by virtue of the Rules framed under Section 46 (2) (f) of the Act, the provisions of the Bihar Service Code ipso facto become applicable to employees of the Council with regard to their conditions of service and because service under the Code was pensionable, the petitioner automatically becomes eligible to the benefit of Pension. In view of the aforesaid discussions, we find no merit in the appeal. It is accordingly dismissed. Patna High Court, Dated 20th July, 2010, N.A.F.R., P.K. (Navin Sinha, J.) (Jyoti Saran, J.)