VIRENDRA TRIPATHI Vs. INDIA LITERACY BOARD AND ANOTHER

JUDGEMENT

(1.) This writ petition is directed against an order contained in Annexure-I to the writ petition dated 16-9-84 terminating the services of the petitioner on payment of three months' salary. The petitioner was initially appointed in the year 1966 as Deputy Head, Field Work Department in the Literacy House, Sarojini Nagar, Lucknow. It has been asserted in the writ petition that after the expiry of the period of probation the petitioner was confirmed with effect from 16-8-67. The petitioner was also promoted subsequently as Head of the Department and worked in different capacities. The petitioner was appointed as Head, Curriculum & Material Preparation Sec. on the recommendation of the Selection Committee with effect from 18-11-80 and was also confirmed on the said post. On the basis of the averments made in para 8 of the writ petition it has been argued that the opposite party No. 1 namely, India Literacy Board (hereinafter to be referred as Board) is State within the meaning of Art. 12 of the Constitution of India and it is an Agency/instrumentality of the Government.

(2.) Before we enter into the merits of the case it is to be examined whether the opposite party No. 1 is 'State' Agency/instrumentality of the Government and the writ petition under Art. 226 of the Constitution of India would be maintainable against it or not. Memorandum of Association of India Literacy Board has been filed as Annexure-3 to the writ petition. It is a Society registered under the Societies. Registration Act, 1860. Art. 5 of the Memorandum of Association lists the members constituting the first Board as on Aug. 14, 1974. The list given in Art. 5 shows that out of 16 members of the Board only 2 are official members listed at serial Nos. 7 and 8 namely the Agriculture Production Commissioner, U. P. Government (or his nominee) Lucknow and Education Secretary, U.P. Government (or his nominee). All others are individuals, some of them having retired from high positions, some scientists and Social worker, except Member at Serial No. 16 who was ex officio Member, Secretary of the Board being Director of the Literacy House. Members listed at serial Nos. 14 and 15 were representatives of the staff of the Literacy House. The Board framed its rules and regulations which were adopted by the India Literacy Board in its special meeting held at Literacy House, Lucknow, on Aug. 14, 1976. Art. 2 of the said rules and regulations pertains to the membership of the Board. There are five categories of members namely, Life Member, Nominated Members, Official Members, Ex Officio Members and Staff Members. So far life member is concerned Miss Welthy H. Fisher, founder of the institution, was the only life member. Art. 4 provides that there shall be 9 nominated members nominated by the Committee constituted in accordance with Art. 8. There shall be five official members out of whom three are to be nominated by , Government of India in the Ministry of Education and Social Welfare and two representatives of Government of Uttar Pradesh namely the Agriculture Production Commissioner and the Secretary, Education Department, Government of Uttar Pradesh or their nominee. According to Art. 6 the Vice Chancellors of Lucknow University and G. B. Pant University of Agriculture and Technology are the Ex Officio Members of the Board and Art. 7 provides for two members from the staff of the Board. From the above provisions it is clear that besides the life member there would be 18 members of the Board out of which only five are to be official members representing the Central and the State Governments. The remaining 13 members are neither nominated nor represent the Central or State Government. Nine nominated members are to be nominated by the Committee of five as constituted under Art. 8 of the Regulations which consists of Chairman of the Board, the Vice-Chairman of the Board and a nominee of the Ministry of Education and Social Welfare, Government of India, the chairman, All India Adult Education Association, New Delhi and one person to be elected by the Board from amongst its members other than the Chairman & Vice Chairman. Out of 5 members of the Committee under Art. 8 there is only one nominee of the Central Government. Nominated members of the Board constitute half the strength of the Board. The Vice-Chancellors of Lucknow University and G. B. Pant University of Agriculture & Technology are two Ex Officio Members who do not represent the State. Similarly two staff members only represent the employees of the Board and the Literacy House. The constitution of the Executive Committee is provided under Art. 12 of the Regulations. Besides others the main function of the Executive Committee is to carry out the object of the Board and to give effect to the decision of the Board on policy matters. It has power to manage all properties owned or held by the Board, to appoint, confirm, dismiss or suspend any employee of the Board. The Executive Committee also has only two persons nominated by the Government of India. Ministry of Education & Social Welfare, from amongst the official members nominated by such Government and the Secretary to Government of U. P. Education Department, the rest of the members are not official members or members nominated by the State of U. P. or the Central Government. The remaining members are the Chairman of the Board. Vice-Chairman, three persons to be elected by the Board from amongst the nominated members, and nominee of the Chairman and one staff member and so on. The Chairman is to be nominated by the Committee of five as provided under Art. 8 of the Regulations from the provisions of the Memorandum of Association and Regulations as indicated above, it becomes clear that there is only some representation of the State Government and the Central Government on the Board and in the Executive Committee but it cannot be said that there is control of the Central or State Governments muchless deep rooted or all pervading control. The Board or its main functioning body cannot be said to be dominated by the official members as their numbers is too small looking to the total strength of the Board and the Executive Committee. Out of 18 Members of the India Literacy Board only three represent the Central and the State Governments. A perusal of the Memorandum of Association and Regulations also show that otherwise also there is no control of the State or the Central Government over the functioning of the Board. There are no such provisions like framing of rules by the' Board subject to the approval of the Central Government or any power vesting in the Government to expel or remove any of the Members of the Board or to have any control over the properties for their disposal as owned or held by the Board. The constitution of the Board leaves no room for doubt that it is an autonomous body. Much stress has been laid by the counsel for the petitioner on the fact that the Board runs on the total grant given by the Central Government and the State Government in the proportion of 70 per cent and 30 per cent respectively. There is nothing to indicate in the petition that the Board has no other source of income. The facts asserted by the petitioner only show that out of the Governmental grant sanctioned for the Board 70 per cent is to be provided by the Central Government and 30 per cent by the State Government. In any case the fact that the financial assistance is provided by the Government to the Literacy Board will not by itself be conclusive of the fact that the Board is State or Agency/instrumentality of the State. It is onlyone of the factors relevant in arriving at a conclusion whether a body is State or instrumentality/Agency of the Government but in the absence of other ingredients it does not lead to any conclusive or irresistible conclusion for it is a factor to clinch the character of an institution as State, Agency/instrumentality of the State. From the discussion held above it is quite clear that the representation of the Central and State Governments on the Board is nominal looking to the total strength of the Board. As noted earlier too there is no other controlling power vested in the Central or the State Government regarding framing of the bye-laws, rules or regulations or in respect of holding or disposing. of immovable and movable properties or in the like or other matter.

(3.) The institution in question was established by Miss Welthy H. Fisher, a well known Social Worker which later on started to be managed by the Society registered under the Societies Registration Act. The institution was not sponsored by the Central or the State Government. The counsel for the petitioner contended that as provided under Art. 41 of the Constitution of India the State has to make effective provision for education of the citizen and the respondent No. 1 is acting as an Agent or instrumentality of the Union of India or the State Governments to achieve the object of educating the adults. Art. 41 of the Constitution reads as follows:-