RAM KISHORE MEENA Vs. UNION OF INDIA

JUDGEMENT

(1.) BY way of aforesaid appeal the appellant has challenged the order of the learned Single Judge dated 22. 8. 96 whereby the learned Single Judge dismissed the writ petition filed by the appellant ex-parte. BY the said writ petition the petitioner has challenged his dismissal from the services of respondent No. 4 the Rajasthan Social Welfare Advisory Board dt. 27. 4. 95, Annexure-31 to the petition issued by respondent No. 6 Smt. Sariya Khan, Ex-Chairman, Rajasthan Social Welfare Advisory Board (hereinafter referred to as "the Raj. Board. " ).

(2.) THE main function of the Central Social Welfare Board and the State Advisory Board briefly stated are that the Govt. of India had under the Ministry of Education vide its Resolution dt. 12. 8. 1953 set up the Central Social Welfare Board with the object of assisting the voluntary organisations throughout the country to maintain and develop their existing programmes and to dovetail them into the general pattern. THE Govt. of India, Department of Social Welfare, since had dissolved the said Board w. e. f. 31. 3. 1969, upon their decision to register a charitable company under the name and style of the Central Social Welfare Board" under Sec. 25 of the Companies Act, 1956 w. e. f. 1. 4. 1969. As per para 2 of Annexure-II attached to the said Notification dt. 22. 4. 1969, Clause 3 (B) (XIX) of the Memorandum of Association and Clause (9) of Article of Association, the Central Social Welfare Board has been given powers for establishment of agencies/offices or branches and State Social Welfare Advisory Board. THE Administrative expenditure is to be shared as per clause 4 of said Annexure-II, the Central Social Welfare Board and the State Govt. in the ratio of 50:50 each. THE Central Social Welfare Board as well as the State Social Welfare Advisory Board are discharging the same functions which were earlier discharged by the Department of Education and the Social Welfare Department of the Govt. of India and the Department of Social Welfare of the State of Rajasthan for implementing the programmes and schemes and now this work is being done by the Central Social Welfare Board as well as the State social Welfare Advisory Board. THE Chairman as well as the members of both the Boards are nominated by the Central Government or by the State Govt. , as the case may be. THE main function of the State Advisory Board is to examine the applications for grant-in-aid of the voluntary Welfare Institutions under different programmes and recommend the same for the grant of the Central Board as referred in para No. 5 (II) of said Annex-II.

(3.) THE appellant has challenged the impugned order dt. 22. 8. 1996 on the grounds inter-alia as under:- (A) that the impugned order dated 22. 8. 1996 passed by the learned Single Judge is ex-facie erroneous being contrary to the facts and law as is apparent from the record. Learned Single Judge has dismissed the petition in view of Sec. 14 of the Central Administrative Tribunal Act, but as a matter of fact, Sec. 14 are not attracted over the respondent No. 4 of which the appellant petitioner an employee. From bare reading of the order, it is crystal clear that the learned Single Judge has considered the Central Social Welfare Board as an authority, but has not considered the status of Rajasthan Social Welfare Board while dismissing the writ petition. Thus, dismissal of the writ petition taking into consideration the status of respondent No. 3 instead of respondent No. 4 is certainly illegal, invalid, unjustified and unwarranted and contrary to the facts mentioned in the record, therefore, the order dated 22. 8. 1996 deserves to be quashed and set aside on this ground alone. (B) that the impugned order of the learned Single Judge also deserves to be quashed for the reason that the provisions of Sec. 14 are not attracted over the respondent No. 4 against which the grievance have been raised in respect of illegal dismissal of the appellant petitioner as he was not the employees of the respondent No. 3. Sec. 14 (2) is reproduced hereunder for the ready reference of this Hon'ble Court:- "14. Jurisdiction, Powers and authority of the Central Administrative Tribunal- Sub-Clause (2) THE Central Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of Sub-Sec. (3) to local or other authorities, within the territory of India or under the control of the Govt. of India and to corporations (or societies) owned or controlled by the Government, not being a local or other authority or corporation (or society) controlled or owned by the State Government. Provided that if he Central Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub-Sec. in respect of different clauses of, or different categories under any class of, local or other authorities or corporations (or societies ). " THE bare perusal of the aforesaid provision makes it very clear that the Central Govt. , may apply the provisions of the Central Administrative Tribunal Act and may vest the jurisdiction to the Central Administrative Tribunal in respect of local or other authorities within the territory of India owned or controlled by the Government of India and to the corporation owned or controlled by the Government not being a local or other authorities or corporation controlled or owned by the State Government. THE provisions have also been inserted under sub-rule (2) and accordingly that even the local or other authority controlled or owned by the State Government may be amenable to the Central Administrative Tribunal jurisdiction, but that is only after notification and after considering subjectively and objectively the expediency for the purpose of facilitating transiting to the scheme as envisaged by this Act. It is most respectfully submitted that the Central Government has not issued any Notification in respect of amenability of local or other authority or corporation controlled or owned by the State Government. THE Central Government has respondent No. 4 as to its amenability to the jurisdiction of Central Administrative Tribunal. No such notification has either been shown by the respondent nor has been placed on record alongwith their reply. THE respondents have shown the notification dated 20. 4. 1987 by which Central Social Welfare Board (respondent No. 3) has been treated as authority by the Central Government and accordingly, the Central Social Welfare Board has been empowered to do some work. As such, Notification dated 20. 4. 1987 is not at all related with the amenability of respondent No. 4 to Central Administrative Tribunal under Sec. 14 of the Central Administrative Tribunal Act of 1985. Even assuming for a moment but without any admission that the notification dated 20. 4. 87 is related with the amenability respondent No. 3 to the jurisdiction of the CAT, then also the aforesaid notification does not make the respondent No. 4 amenable to the jurisdiction of the Central Administrative Tribunal. Thus, the learned Single Judge has dismissed the writ petition on the wrong premises without considering the provisions narrated hereinabove. It is further submitted that the Central Government has also not exercised its powers conferred under the proviso in respect of amenability of the local or other authority or corporation controlled or owned by the State Government. No such notification has been issued by the Central Government considering the expediency for the purpose of facilitating transition to the scheme as envisaged by the Act. Thus, on this count also, the provisions of Sec. 14 (2) are not at all attracted in the present case. It is worth to mention here that respondent No. 4, as a matter of fact, is controlled by the State Government as is evident from the various provisions of articles of association and by laws. It is also most respectfully submitted that the provision to Sec. 14 (2) are also otherwise applicable on the respondent No. 3 or respondent No. 4 because as per their reply the respondents have come with the plea that the Government of India does not have any control over the affairs of Central Social Welfare Board or Rajasthan Social Welfare Advisory Board (respondent No. 4 ). In this connection, para No. 2 of the reply may kindly be seen. THE respondents have categorically stated that the respondents No. 1 and 2 have no control over the respondent No. 3 & 4. Thus, it is crystal clear that the respondent No. 1 has no control over the affairs of respondent No. 3. Respondents have also not come with the case that the respondent No. 3 is owned by the Central Government. If the respondent No. 3 is not owned by the Central Government nor controlled by it, then, even the Central Government does not have any jurisdiction to issue notification in amenabling the respondent No. 3 to the jurisdiction of the CAT. To amenable a particular corporation or society to the jurisdiction of the Central Administrative Tribunal, the pre-requisite condition is that it should be either owned or controlled by the Government. Since it is clear from the reply that respondent No. 1 which is the Central Government does not own the respondent No. 3 nor has any control over it, as such, even the notification dated 20. 4. 1987 if it exists in this respect, is having no consequence in the eyes of law. THErefore, the dismissal of the writ petition on the premises of the notification dated 20. 4. 1987 which pertains to the Central Social Welfare Board is also illegal, invalid and contrary to the provisions of Sec. 14 itself. As such, the impugned order dated 22. 8. 1996 deserves to be quashed on this ground alone. (C) that the impugned order dated 22. 8. 1996 is also otherwise illegal, unjustified, unwarranted for the reason that it came to be passed without considering the various contentions raised in para No. 2 of the writ petition which goes to show that the respondent No. 4 is a body constituted by the State Government only after consultation with the respondent No. 3 and its 50% expenditure are borne by the State Government. THE petitioner has categorically stated that the respondent No. 3 & 4 are discharging the same functions which were earlier discharged by the Department of Education and the Social Welfare Department if the Government of India and the Department of Social Welfare of the State of Rajasthan for implementing the programmes and schemes. Since the Government of India and the State Government were facing difficulties in the implementation of the programmes and schemes which are bound to be circulated and implemented for the welfare of the society in urban as well as rural areas to achieve the Constitutional goal particularly to implement the rights conferred under Part-III of the Constitution in the from of fundamental rights and the directive principles of the State polices are provided under part - IV which includes several directions given under Articles 37 to 51 of the Constitution of India. To fulfil the mandatory obligations as conferred under Article 37, the respondent No. 3 & 4 came to be created. THE respondent No. 4 came to be created by the State Government. As per the mandate of Article 37, respondent No. 3 & 4 came to be created and the law in the form of articles of Association and Memorandum of Association came to be promulgated by exercising the powers conferred under the provisions of the Companies Act. As such, this memorandum of Association and Articles of Association have the statutory force if they are read with the provisions of Article 37. THE objects of the respondent No. 3 & 4 are basically to achieve the targets fixed under different articles of Part-IV. THE learned Single Judge has also omitted to consider the another important aspect of the matter that the Accounts of Social Welfare Advisory Board are to be audited by the State auditor General. That the Rules framed under composition and functioning of the respondent no. 4 are very clear in this connection. Rule 13 clearly stipulates that the accounts of the Board shall be placed before the State Board and the same has to be audited by the State Accountant General or any other auditor appointed by the State Government. THE function of the Central Board in this connection is in respect of consultation, but not beyond that. THE learned Single Judge has not at all considered this vital aspect of the issue while dismissing the writ petition on the ground of maintainability. It has further been stated by the appellant that Rule 15 further reveals that no amendment to the rules shall be made without prior approval of the State Government and Central Board. Thus, the over-all control of the State Government is abundantly clear at every stage. No amendment or modification in the rules can be made by the Board suo-moto or even after the consultation with the Central Board till the prior approval of the State Government is granted. Deep and pervasive control of the State Government over the affairs of the respondent No. 4 is further evident from Rule 3, 10, 12, 13, & 15 of the Rules pertaining to the respondent No. 4. But, it is shocking that none of the submission made in para No. 2 of the Writ petition has been considered while dismissing the petition by the learned Single Judge even in the absence of counsel for the petitioner as the petition came to be dismissed on technical ground. It is settled law that if the petition is dismissed on technical ground, then the Hon'ble Court takes into consideration the averment made in the petition, in the interest of justice, But, in the present case, the averment of the petitioner has not been looked into be the learned Single Judge while dismissing the petition on merit. THE composition of the State Board shows the pervasive and deep control over the affairs of the Board as is evident from the Rule - 3 of the said rules. THE Rule 10 (i & ii) is reproduced hereunder for the ready reference of this Hon'ble Court: 10 (i) "the Board shall have power to make appointment to posts sanctioned by the Central Board on terms to be prescribed with the prior approval of the Central Board, except the Secretary of the Board who shall be appointed by the Board in consultation with the Central Board. 10 (ii) THE authority competent to promote, degrade or dismiss any officer or servant of the Board shall be the authority empowered to appoint such officer or servants. In these matters, the State Board all shall as far as possible apply rules of the State Government/union Territory. " (D) that the learned Single Judge has further lost site on the another important aspect of the matter that the rationalisation of the staff structure of the Rajasthan State Welfare Advisory Board needs approval of the State Government prior to making the appointment on the post of staff structure as is evident from the letter dated 7. 4. 1979. Since the petitioner appellant was not possessing the aforesaid letter at the time of filing the writ petition, as such he could not annex the same with the writ petition, but after the dismissal of the writ petition, he could lay his hands on the copy of letter dated 9. 4. 1979 which bears the reference of letter dated 7. 4. 78 is submitted herewith and marked as Annex. A/1. (E) Both the Boards have the separate entity though with some relations, but the respondent No. 4 cannot be treated at all either of its unit or branch. THE employees of the Central Social Welfare Board are sent on deputation to State Social Welfare Advisory Board. It is settled law that in the unit or branch, no deputation can be made. Deputation is also made on the separate and distinct institution/establishment. THE petitioner appellant was earlier employed in the Central Social Welfare Board, but subsequently he came on deputation on 2. 11. 1988 in the services of the respondent No. 4 as Secretary where he came to be absorbed permanently w. e. f. 16. 2. 1991 after the general Meeting of the Board. Thus the appointing authority of the petitioner appellant is respondent No. 4. His services also came to be terminated by the respondent No. 4. In this connection Rule 2 (vi) is reproduced hereunder for ready reference of this Hon'ble Court:- "secretary" means the Secretary of the Board appointed by the Board in consultation with the Central Welfare Board. " (F) that the interference of the State Government over the administration of the respondent No. 4 is also evident from the fact that the respondent No. 4 has adopted all the service Rules of the State Government including CCA Rules for the purpose of disciplinary action. THEy have not adopted the CCA Rules of the Central Government. Thus, the respondent No. 4 treating itself as part and parcel of the State Government for the purpose referred in foregoing paragraphs. THErefore, the learned Central Administrative Tribunal cannot have any jurisdiction in such matters. As such, dismissal of the writ petition vide order dated 22. 8. 1996 is absolutely erroneous on the face of it, therefore, the same deserves to be quashed and set aside on this count alone. (G) that at the directions of the Government as issued on 16. 9. 78 the post of Secretary of the respondent No. 4 came to be upgraded. Thus, from the bare perusal of the facts mentioned in the foregoing paragraphs, it clearly reveals that the State Government is having deep and pervasive control over the affairs of the functioning of the respondent No. 4, therefore, the same falls under the ambit of `state' being its instrumentality. (H) that since the appellant petitioner has been thrown out of employment illegally by the impugned dismissal order dated 27. 4. 1995 (Annex. 31) under State CCS CCA Rules, 1958 he has prayed to this Court to quash his dismissal order with all consequential benefits alongwith the quashing of other impugned orders referred in prayer clause of the writ petition on the facts and legal grounds mentioned in the body of the writ petition.