2012 (6) TMI 907 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the National Book Trust (NBT) is a "State" or "other authority" within the meaning of Article 12 of the Constitution of India.

Summary:

Issue 1: Maintainability of Writ Petition

The learned Single Judge dismissed the writ petition filed by the appellant on the ground of non-maintainability, holding that NBT is not a "State" within the meaning of Article 12 of the Constitution of India. This decision was based on the precedent set by the Division Bench in J.S. Shamim Vs. National Book Trust, which relied on the Supreme Court's judgment in Chander Mohan Khanna Vs. NCERT.

Issue 2: Validity of Precedent

The appellant's counsel argued that the judgment in J.S. Shamim is no longer valid law due to the Constitution Bench judgment in Pradeep Kumar Biswas & Ors. Vs. Indian Institute of Chemical Biology & Ors., which overruled Chander Mohan Khanna. The Division Bench did not independently assess NBT's status and merely followed the Supreme Court's ruling on NCERT.

Issue 3: Parameters for "State" under Article 12

The Supreme Court in Pradeep Kumar Biswas established parameters to determine whether an entity is a "State" under Article 12. These include financial, functional, and administrative control by the government. The mere autonomy of a body, as held in Chander Mohan Khanna, is not sufficient to exclude it from being a "State".

Issue 4: Application of Tests to NBT

Applying the tests from Ajay Hasia and Pradeep Kumar Biswas, the court examined NBT's formation, objectives, and control mechanisms. NBT was established by a government resolution, receives significant funding from the government, and is subject to pervasive administrative control by the government, including appointment of its members and oversight of its functions.

Issue 5: Deep and Pervasive Control

The court found that the government exercises "deep and pervasive" control over NBT, from its creation to its functioning and financial management. This includes the appointment of the Chairman and other members, approval of regulations, and mandatory submission of reports to the government. Such control indicates that NBT is an instrumentality of the government.

Issue 6: Implications for NBT Employees

The court dismissed concerns that declaring NBT a "State" would automatically entitle its employees to benefits available to government employees, clarifying that such employees are not governed by Article 309 of the Constitution.

Conclusion:

The court concluded that NBT is an "other authority" and thus a "State" within the meaning of Article 12 of the Constitution. The impugned order of the learned Single Judge was set aside, and the case was remitted for a decision on merits. The court appreciated the assistance rendered by Mr. Ashish Mohan as Amicus Curiae.