Shoniya.K v. Kerala State Bharat Scouts & Guides State Headquarters and The Government of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 22ND DAY OF FEBRUARY 2016/3RD PHALGUNA, 1937 WP(C).No. 25215 of 2015 (B) ---------------------------- PETITIONER : -------------------------- SHONIYA.K AGED 30 YEARS AREEKULAM PARAMBIL HOUSE, METHOTTUTHAZAM, KOMMERI P.O KOZHIKODE 673 007. BY ADVS.SRI.P.C.SASIDHARAN SRI.E.S.ASHRAF SRI.ARAVINDA KUMAR BABU T.K. SRI.P.E.SAJAL RESPONDENTS: ---------------------------- 1. KERALA STATE BHARAT SCOUTS & GUIDES STATE HEADQUARTERS, VIKAS BHAVAN P.O THIRUVANANTHAPURAM REPRESENTED BY ITS STATE SECRETARY. 695 033. 2. THE GOVERNMENT OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION (D) DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM 695 001. R1 BY ADV. SRI.M.K.CHANDRA MOHAN DAS,SC,KOLLAM MPT R2 BY GOVERNMENT PLEADER SRI M A FAYAZ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25215 of 2015 (B) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1. COPY OF THE EXTRACT OF SUMMARY OF DEMANDS FOR GRANTS AND BUDGET ESTIMATE 2015-2016. EXHIBIT P2. COPY OF THE ORDER DATED 23.4.15 ISSUED BY THE GOVERNMENT REVISING THE PAY AND ALLOWANCE OF THE STAFF UNDER THE IST RESPONDENT. EXHIBIT P3. COPY OF THE EMPLOYMENT NOTIFICATION DATED 15.11.14. EXHIBIT P4. COPY OF THE COMMUNITY CERTIFICATE ISSUED TO THE PETITIONER FROM THE TALUK OFFICE, KOZHIKODE DATED 25.5.15. EXHIBIT P5. COPY OF THE MA DEGREE (ECONOMICS) CERTIFICATE OF THE PETITIONER. EXHIBIT P6. COPY OF THE ADMISSION TICKET OF THE PETITIONER. EXHIBIT P7: COPY OF THE CIRCULAR DT 7.8.2012 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS. RESPONDENT(S)' EXHIBITS --------------------------------------- ## EXT.R1: COPY OF THE SERVICE RULES EXT.R2: COPY OF THE RANK LIST FOR THE POST OF CLERK CUM TYPIST TRUE COPY P.A TO JUDGE jma ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 25215 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of February, 2016 ## J U D G M E N T The petitioner an applicant under Ext.P3 notification seeks for implementation of reservation policy of the Government in the selection to be made by Ext.P3. By Ext.P3, the 1[st] respondent had invited application for various posts shown therein. It was also specified that the OBCs and the SC/ST candidates would be given age relaxation. The petitioner applied under the notification for the post of Clerk-cum-Typist. The petitioner had approached this Court after the petitioner figured in the short list made on the basis of the written examination; apprehending that reservation would not be followed for making appointments as per Ext.P3. The petitioner relies on Exts.P1 and P2 to contend that there is a pervasive control of the State over the activities of the 1[st] respondent and hence the 1[st] respondent would be 'State' under Article 12 of the Constitution of India WPC.No.25215/2015 : Page numbers : 2. The learned counsel for the 1[st] respondent as a preliminary objection, contends that no writ would lie against the 1[st] respondent for reason of it being a society registered under the Travancore-Cochin Literary, Scientific & Charitable Societies Registration Act, 1955. There is no all pervasive control by the State, but for the fact that the State has set apart some funds for the purpose of the 1[st] respondent. The learned Counsel would also rely on the decision reported in 1991(4)SCC 578 (Chander Mohan Khanna v. National Council of Educational Research and Training and others) to contend that the position of the 1[st] respondent is similar to the NCERT, the latter of which was found to be not a 'State' coming within the definition of Article 12 of the Constitution. The respondent has also a contention that Ext.P3 was prior to Ext.P2 and there was no reservation noticed specifically in Ext.P3 and alternatively argues that, in any event Ext.P2 would not be binding on the 1[st] respondent. The further argument is that the petitioner who had participated in the interview as per Ext.P3 notification has turned around to WPC.No.25215/2015 : Page numbers : challenge the same knowing fully well that she would not be appointed; but for reservation being applied. The ranklist itself having now been published, it is contended that there are persons above the petitioner who should also be heard before an order is passed. The learned counsel relies on 2016(1) SCC 454 (Madras Institute of Studies and another v. K. Development Sivasubramaniyan and others) to buttress the above contention. 3. In Chander Mohan Khanna (supra), declaration made with respect to the societies like NCERT not falling under the definition of Article 12 of the Constitution of India has been specifically overruled by a Constitution Bench decision of the Hon'ble Supreme Court in 2002(5) SCC 111 (Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and others). Therein, the Hon'ble Supreme Court was concerned with the question as to whether the Council for Scientific and Industrial Research (CSIR) was a State. The majority decision, quoted with approval the decision in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (1975 (1) SCC 421) and specifically affirmed WPC.No.25215/2015 : Page numbers : the following view: “16. Mathew J, in his concurring judgment went further and propounded a view which presaged the subsequent developments in the law. He said:(SCC 449 Para 82) “A State is an abstract entity. It can only act through the instrumentality or agency of natural or juridical persons. Therefore, there is nothing strange in the notion of the State acting through a corporation and making it an agency or instrumentality of the State” 17. For identifying such an agency or instrumentality he propounded four indicia: - (1) “A finding of the State financial support plus - an unusual of control over the degree - management and policies might lead one to characterize an operation as State action.”(SCC p.454, para 96) - (2) “Another factor which might be considered WPC.No.25215/2015 : Page numbers : is whether the operation is an important public function.” (SCC p.454 para 97) (3) “The combination of State aid and the furnishing of an important public service may result in a conclusion that the operation should be classified as a State agency. If a given function is of such public importance and so closely related to governmental functions as to be classified as a governmental agency, then even the presence or absence, of State financial aid might be irrelevant in making a finding of State action. If the function does not fall within such a description, then mere addition of State money would not influence the conclusion.” (SCC p.454, para 97) (4) “The ultimate question which is relevant for our purpose is whether such a corporation is an or of the agency instrumentality WPC.No.25215/2015 : Page numbers : Government for carrying on a business for the benefit of the public. In other words, the question is, for whose benefit was the corporation carrying on the business?” (SCC p.458 para 111)” 4. The following quote from the Constitutional Bench decision in Rajasthan SEB v. Mohan Lal (AIR 1967 SC 1857) was extracted: “The State, as defined in Article 12, is thus comprehended to include bodies created for the purpose of promoting the educational and and economic interests of the people.” 5. Agreeing with the aforesaid statement of law, Chander Mohan Khanna (supra) was specifically found to be contrary to the correct legal position. The CSIR was noticed to be a non-profit making organization, the income and property of which was to be applied to the promotion of those projects subject, nevertheless to the limitation as the Government of India may, WPC.No.25215/2015 : Page numbers : from time to time enforce. The dominant role played by the Government of India in CSIR was emphasized and the fact that the President of the CSIR is the Prime Minister was pointed out to re-affirm the subjugation of the governing body to the will of the Central Government. In such circumstance, looking at the constitution of the Respondent herein and following the binding precedent of the Constitution Bench of the Hon'ble Supreme Court, it cannot be said that the respondent is not a State coming within the definition of Article 12. 6. Ext. P1 would indicate that substantial fund allotment is made to the 1[st] respondent by the State Government. The Government of Kerala is the Patron of the Society. The Executive Committee of the Society is also comprised of the Minister for Education, who is the President, the Director of Public Instructions, The State Chief Commissioner who are all functionaries in the State Government and represent the interests of the State. Ext.P2 is an order by which the 9[th] pay revision benefits were introduced to the employees of the 1[st] respondent, WPC.No.25215/2015 : Page numbers : wherein the Government had specifically referred to creation of posts. Clause (xi) of Ext.P2 indicate that the power to create all posts, irrespective of scale of pay, will be vested in the Government. Clause (xiv) prohibits any appointment to be made without a post validly created by the Government. There is also an amount of parity prescribed for the pay and allowances; the employees of the 1[st] respondent are granted, to that allowable to the State Government employees. 7. The Circular produced as Ext.P7 indicates that the respondent essentially co-ordinates the scouting and guiding activities in schools which is included as a co-curricular activity under the Kerala Education Rules. The Circular projects the respondent as the official organ spearheading such activities and the Director Of Public Instructions issues directions to utilize the special fee fund collected for 'scouting and guiding' to be not diverted and used only for the said purpose. 8. In the counter affidavit of the first respondent, it is stated that the majority of its funds are from sources like WPC.No.25215/2015 : Page numbers : individuals or institutions, the membership fee, the amount raised by sale of Stamps, the Institutional Membership fee and the individual registration fee. But the same is not substantiated by any material produced. As was noticed, Ext.P2 indicates setting apart of Rs.35 lakhs under plan expenditure and 19.75 lakhs under non plan expenditure which is quite substantial and coupled with the specifications as noticed from Ext.P2, warrant the finding that there is an all pervasive control of the State in the affairs of the 1[st] respondent. The schools under the government also are directed to enroll as members in the respondent (Ext.P7), the expenses of which are to be met from the special fee fund earlier mentioned. In such circumstance, this Court is unable to reject the writ petition on the ground of the 1[st] respondent being not covered under Article 12 of the Constitution. 9. The further contention raised is with respect to the petitioner having applied under a notification and having approached this Court subsequent to the written examination. The decision in K. Sivasubramaniyan (supra) was specifically in the WPC.No.25215/2015 : Page numbers : context of an unsuccessful candidate having challenged the terms of the notification. Here, it is the admitted fact that the petitioner had been shortlisted after the written examination, when, she approached this Court apprehending that reservation would not be applied to the appointees. The apprehension expressed by the petitioner is justified insofar as the 1[st] respondent has now come forward with the counter affidavit claiming that the rules of reservation are not applicable to the 1[st] respondent. The petitioner also had been shortlisted after the interview in the rank list produced along with the additional counter affidavit. Hence the petitioner cannot be said to be an unsuccessful candidate and the petitioner's apprehension is found to be justified for reason of the 1[st] respondent asserting before this Court that no reservation would be applied. The principles in K. Sivasubramaniyan(supra) would not hence be applicable herein. 10. Ext.P2, specifically by Clause xxi says so: “Reservation to Scheduled Castes/Scheduled Tribes/Other Backward Classes/ differently abled WPC.No.25215/2015 : Page numbers : and all other eligible categories should be strictly followed in recruitments in Kerala State Bharat Scouts & Guides.” 11. Hence the Government intended that the reservation policy of the Government should be followed in the case of all appointments made to the 1[st] respondent. Ext.P3 also indicated that the age relaxation would be applicable to SC/ST/OBC. The first respondent cannot contend that Ext.P2 is not applicable to them especially since the creation of posts, on a reading of Ext.P2, is an exclusive power conferred on the Government. 12. The further contention that the notification did not specify reservation and none of the affected parties are arrayed in the party array, cannot also be countenanced. The 1[st] respondent was obliged to follow the reservation policy of the Government and the mere fact that it did not figure, as a stipulation, in the notification cannot stand against the constitutional right given to the backward classes which was also WPC.No.25215/2015 : Page numbers : implemented in the 1[st] respondent. The right of the persons in the rank list to get employment would be subject to such reservation. The absence of a prescription of reservation, in the notification cannot stand in the way of the reservation being applied as per rules, since then every employer could bring out notifications without reservation being specified and thus defeat the privilege granted to the marginalized sections of the society; sanctioned by the Constitution itself. In that circumstance the only option would be to set aside the entire selection and direct fresh notification to be made. Considering the fact that the selection process has proceeded considerably and also that the respondent is a charitable organization; to avoid further delay and expenditure; this Court would only direct the reservation to be applied when appointments are made. 13. Further the petitioner was before this Court before appointments were made and when selection was in progress. This Court had not stayed the selection process but on a prima facie consideration directed that the appointments would be made only ## WPC.No.25215/2015 : Page numbers : after obtaining orders from this Court. In the circumstance of no appointment orders having been issued it is not necessary that any or all who participated be heard, since none have, as of now, acquired any right to appointment. 14. On the above reasoning it is directed that the appointments shall be made applying reservation as provided in Rule 14 to 17 of Part II, Kerala State and Subordinate Services Rules. The present selection has also to be made from the rank list on the basis of the reservation policy as is indicated above. The writ petition would stand allowed directing the 1[st] respondent to proceed with the selection but however, implementing the reservation policy of the State, in making appointments. No costs. Sd/- - (K. VINOD CHANDRAN, JUDGE) jma // true copy// P. A to Judge