ORDER
1. In this petition for a writ of certiorari, the petitioner has called in question the validity of an appointment made by the respondent-Institute to the post of Assistant Professor in Paediatric Cardiology. The challenge is primarily based on the ineligibility of the appointee to seek appointment and to hold the post to which he has been appointed. The ineligibility in turn arises out of and is related entirely to the age of the incumbent as on the date of her appointment. According to the petitioner, the second respondent who was selected for appointment and is presently holding the post was not eligible having gone past the maximum age limit prescribed by the Pay and Recruitment Rules of the Institute. The only question that falls for serious consideration, apart from an objection relating to the maintainability of this petition therefore is, whether the Institute could make the appointment in question relying upon the provisions of Karnataka Civil Services (General Recruitment) Rules, 1977. The controversy arises in the following circumstances.
2. By a Notification dated 21st of May, 1997, the respondent-Institute invited applications from eligible candidates for appointment against among others the post of Assistant Professor in Paediatric Cardiology. The petitioner and the second respondent both applied in response and appeared in the written test prescribed for the purpose. They were both called for interview conducted by a Committee of Experts culminating in the issue of an order dated 27th of September, 1997, appointing the second respondent in preference to others vying for the post. Aggrieved, the petitioner has questioned the said appointment and prayed for a writ of certiorari besides one in the nature of quo warranto ousting the second respondent from the post presently held by him.
3. Appearing for the petitioner Mr. Chidanandaiah, mounted a three pronged attack against the selection and consequential appointment of the second respondent. It was argued that the rules regulating recruitment in the Institute prescribed the conditions of eligibility for appointment against the post of Assistant Professor in Paediatric Cardiology, one out of which conditions was that the candidate should not be morethan 40 years of age relaxable in the case of SC/ST candidates by five years and three years in the case of those belonging to Categories 1, 2-A, 2-B, 3-A and 3-B. The second respondent was much beyond the age so prescribed on the date of her appointment and even on the date the Notification in question was issued thereby rendering her ineligible. Alternatively, it was urged that the Selection Committee had committed a material irregularity affecting the validity of the appointment in that it had not prepared a panel of names in the order of merit as envisaged by Rule 8 of the Recruitment Rules. It was lastly argued that since the selection was based on a Written Test followed by interview, the weight age for interview could not go beyond 12%, as held by the Supreme Court in Ashok Kumar Yadav and Others v State of Haryana and Others, followed by the other decisions in Mohinder Sain Garg and Others v State of Punjab; and Vikram Singh and Another v Subordinate Services Selection Board, Haryana and Others.
4. Mr. Achar, Counsel appearing for the respondent-Institute on the other hand raised a preliminary objection to the maintainability of this writ petition. It was contended that the Institute being an autonomous body registered as a Society under the Karnataka Societies Registration Act, was neither State nor an Authority within the meaning of Article 12 of the Constitution so as to be amenable to the writ jurisdiction of this Court. It was argued that the Institute had came into existence with the help of an initial donation of Rs. 5 lakhs made by Sri Ambli Channabasappa, and even when it was later registered as a Society, the entire management and control of the Institute was vested in the governing Council constituted as per the Memorandum of Association and the bye-laws of the Society. Since only partial financial aid was being received from the State Government, the Society did not, according to Mr. Achar, answer the description of the expressions 'State' or 'Authority' referred to in Article 12. He argued that the appointment of the second respondent did not suffer from any illegality having regard to the provisions contained in Karnataka Civil Services (General Recruitment) Rules, 1977, which were applicable in situations where no separate provision was made. Rule 6 of the General Recruitment Rules, it was contended, sufficiently empowered the Institute to relax the age bar in suitable cases. Such a relaxation having been granted in favour of the second Respondent in view her merit and suitability, the challenge to the appointment was destined to fail.
5. Article 12 inter alia defines the expression 'the State' for purposes of Part III of the Constitution. Apart from the Central and the State Governments, the Parliament and the State Legislatures, all local or other authorities within the territory of India or under the control of the Government of India, are included in the extended meaning given to that expression. Article 226 on the other hand empowers the High Courts to issue to any person or authority including in appropriate casesany Government within its territory, prerogative writs for the enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose. In Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Others v V.R. Rudani and Others, the Supreme Court declared that the term 'Authority' used in Article 226 must in the context receive a liberal meaning unlike the use of that term in Article 12. The Court observed that Article 12 is relevant only for purposes of enforcement of fundamental rights under Article 32 whereas the Article 226 conferred power on the High Courts to issue directions for enforcement of the fundamental rights as well as non-fundamental rights. The words 'any person or authority' used in Article 226 could not therefore be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing a public duty. The form of any such body was not of much relevance for what was important was the nature of the duty cast upon the body and not the means by which the duty was imposed. As to what would constitute 'Authority' under Article 12 of the Constitution, fell directly for consideration of the Supreme Court in Ramana Dayaram Shetty v International Airport Authority of India and Others and Ajay Hasia v Khalid Mujib Sehravardi and Others. In Ajay Hasia's case, supra, the Supreme Court, after considering its earlier decision in Sabhajit Tewary v Union of India ; Sukhdeu Singh v Bhagatram Sardar Singh Raghuvanshi and Managing Director, Uttar Pradesh Warehousing Corporation v Vijay Narayan Vajpayee, evolved certain broad tests relevant for determining whether a given entity could be said to be an instrumentality or agency of the Government. These tests are as under.-
(1) Whether the entire share capital of the Corporation is held by Government. If so, it would go a long way towards indicating that the Corporation is an instrumentality or agency of the State Government;
(2) Whether the financial assistance of the State to the Corporation is so much as to meet almost the entire expenditure of the Corporation. If so, it would afford some indication of the Corporation being impregnated with governmental character;
(3) Whether the Corporation enjoys monopoly status, which is State conferred or State protected;
(4) Whether there is a deep and pervasive State control. If so it indicates that the Corporation is a State agency or instrumentality;
(5) Whether the functions of the Corporations are of public importance and closely related to governmental functions?
(6) Whether any department or unit of the Government is specifically transferred to the Corporation?
[(7) Whether any department or unit of the Government is specifically transferred to the Corporation;]
(8) Whether any statutory duties are imposed upon the Corporation?
The Court hastened to add that the above tests were neither conclusive nor clinching but merely indicative of the parameters within which an answer to the question may be found. It also declared that while determining the nature or the status of the entity as an instrument only of the State, it was immaterial whether the entity had come into existence by or under a Statute. The test, observed the Court, was whether the entity was an instrumentality or agency of the Government and not as to how it was created. The enquiry was not to be as to how a juristic person was born but why it had been brought into existence.
6. Several decisions have followed Ajay Hasia's case, supra, in which similar questions were answered by reference to the board tests evolved in that case. In P. K. Ramachandra Iyer v Union of India, the Supreme Court declared the Indian Council of Agricultural Research, a Society registered under the Societies Registration Act, as an instrumentality of the State. Similarly, in All India Sainik Schools Employees Association v Defence Minister-cum-Chairman, Board of Governors, Sainik School Society, New Delhi and Others, the Sainik School Society, was held to be State within the meaning of Article 12 of the Constitution, having regard in particular to the fact that the entire funding of the Society was by the State and the Central Government and the control of the affairs of the Society vested in a governmental Authority. In the recent past, the Supreme Court had yet another occasion to review the decisions and reiterate the law settled by the same in Uttar Pradesh State Co-operative Land Development Bank v Chandraban Dubey . The question there was whether the Uttar Pradesh State Co-operative Development Limited, Registered as a Society under the Societies Registration Act, was an instrumentality of the State. The Court held that the language of Article 226 being clear no shackles could be placed on the jurisdiction of the High Courts by a process of interpretation. When a citizen or a person is wronged, observed the Court, the High Court will step in to protect him regardless whether the wrong is done by any instrumentality of the State, a company, a co-operative Society, an association or body of individuals whether incorporated or not.
7. In K.V. Panduranga Rao v Karnataka Dairy Development Corporation, a Full Bench of this Court relying upon the decision of the Supreme Court in Ajay Hasia and International Airport Authority's cases, supra, declared the Karnataka Co-operative Milk Federation Limited, to be an authority under Article 12 of the Constitution. Suffice it to say that deep and pervasive Government control over the affairs of the entity whether registered as a Co-operative Society or a Society under the Karnataka Societies Registration Act, 1960, is one of the important tests applicable for determining the status of the Institution. Fiscal assistance lent by the Government and the nature of the duties and functions, discharged by the institution are the other two tests which help determine the status of the institution.
8. Coming then to the present case, the respondent-Institute, was established as an autonomous body and registered as a Society in the year 1972. A copy of the bye-laws of the Society produced by Mr. Achar, shows that the Institute was established in terms of a Government order dated 27th of September, 1972. The Memorandum of Association of the Institute vests the administration of the Institute in the Governing Council, which now stands reconstituted in terms of Government Order dated 4th of February, 1995, with the Chief Minister of Karnataka as its Chairman, the Minister for Health and Family Welfare as co-Chairman and Minister for Medical Education as its Vice-Chairman. The Members of the Council include additional Chief Secretary to Government of Karnataka and Principal Secretary, Finance Department, Vice-Chancellor, Bangalore University; Secretary to Government, Planning; Secretary to Government Health; Director of Medical Education, Bangalore; the Director of Health and Family Services, Bangalore; besides a few others nominated as Members. Sri Jayadeva Institute of Cardiology, Rules and Regulations, 1983, inter alia prescribe the powers and the functions of the governing Council. Rule 10 empowers the Council to amend, add, alter or abridge all or any of the objects of the Society, the rules and regulations or the bye-laws of the Society subject to the approval of the Government of Karnataka. It also empowers the Governing Council to frame broad policies and procedures to carry out the object of the Institute, to make bye-laws regulating the business of the Institute, to sanction the budget, estimates and expenditure in accordance with the bye-laws, to invest the funds of the institute, to borrow monies and to create posts and make appointments thereto. There is therefore no gainsaid that the Governing Council is heavily loaded with State Government authorities from Chief Minister of the State down to Director of Health and Family Welfare which gives to the Government a deep and pervasive control over the affairs of the Society. Superadded to all this is the fact that the Government have been and continues to lend considerable financial assistance to the Society to run its affairs. Even according to the objections filed on behalf of the Society, the Government have been extending aid to the extent of at least 30% of the total financial requirement. The nature of the functions discharged by the Society isalso of a public character. The Society has established an institute which provides the much needed service to the citizens in the field of specialised heart treatment. Providing adequate medical facilities to the citizens being one of the governmental duties, the Institute has become an effective instrument in the hands of the State for the discharge of that obligation. I therefore see no logical absurdity in holding that the Institute is an instrumentality of the State hence amenable to the writ jurisdiction of this Court under Article 226 of the Constitution. I am supported in that conclusion by the fact that the Institute has been described thus in the introduction to Jayadeva Institute of Cardiology (Pay Recruitment Conditions of Services and Miscellaneous Provisions) Rules, 1987.
'Sri Jayadeva Institute of Cardiology, Bangalore, is an Institute converted into an autonomous body by the Government of Karnataka, vide Government Order No. HFW 123 HRA 81, dated 31-1-1984 and registered as a Society under the Karnataka Societies Registration Act, 1969 on 31-1-1984. The Governing Council constituted by the Government of Karnataka is the authority responsible for the achievements of the objects, for which the Institute was made autonomous.
Since becoming an autonomous Institute, the consolidation of the existing facilities and progress on all fronts-physical, staff, patient care, research and community oriented programmes have been phenomenal. This has been possible with the financial support from the Government of Karnataka and the Governing Council'.
9. It has been described as the second Centre in the whole of India to have facilities for Open Heart Surgery on new born babies in the Government Sector, in the Report submitted by the Director of the Institute, a copy whereof has been produced as Annexure-G.
10. A certificate issued by the Government of Karnataka dated 26-5-1999, describes the Institute thus.-
'This is to certify that the Sri Jayadeva Institute of Cardiology, Bangalore, is a Society Controlled by State Government fall in category (a)(3) of condition 64 specified in the table annexed to Ministry of Finance (Department of Revenue) Notification No. 29 of 1999, dated 28-2-1999'.
11. The above should therefore leave no manner of doubt as to the real status of the Institute as an extended arm of the Government meant to help the later discharge a vital obligation which it owes to the citizen. The preliminary objection must therefore stand overruled.
12. That brings me to the core question whether the petitioner was eligible for appointment in terms of the Pay and Recruitment Rules framed by the Institute. Rule 1 of the said rules reads thus:
'Classification of posts:
The Institute shall have posts of Group 'A', Group 'B', Group 'C' and Group 'D' as indicated in the Schedule I appended to theserules. The number and pay scale of each category of posts are also indicated in the Schedule.
The method of recruitment, age limit prescribed and the qualifications prescribed for appointment, for such categories shall be as indicated in Schedule II appended to these rules'.
13. Insofar as appointments to the post of Assistant Professor in Paediatric Cardiology is concerned, the Schedule makes the following provision.-
Designation of the post
Qualifications and Experience
Age limit
Probation
Asst. Prof. of Paediatric Cardiology
1.Should be the holder of a degree in Medicine of any University established bylaw in India.
*40years
2years
2. Shouldhave postgraduate qualification in D.M. Cardiology.
3. Shouldhave teaching experience in Cardiology of not less than 3 years in the post oflecturer after acquiring postgraduate qualification.
4. Shouldhave experience in Paediatric Cardiology.
*Five years relaxable for SC/ST
3years relaxable for CAT. I, II-A, II-B, III-A, III-B.
14. It is evident from a plain reading of the above that apart from academic qualification and experience, the rule stipulates the upper age limit for purposes of appointment. It is also evident that the relaxation of age bar is in terms of the rules permissible only in the case of Scheduled Caste, Scheduled Tribe and Categories I, II-A, II-B, III-A and III-B candidates by five years in the case of the former two, and three years in the case of the latter. On a conjoint reading of Rule 1 and the Schedule extracted above, it is apparent that in the case of a candidate not falling in any one of the categories referred to earlier, a valid appointment can be made only if he/she is within the age limit prescribed. By stipulating an upper age limit and providing for relaxation only in the case of SC,ST and Backward Group candidates, the rules clearly mean to convey that no relaxation is envisaged in any other situation. The rules do not reserve any power of relaxation for the Institute or any other Authority for that matter. Since the rules make a self-contained provision as regards the age of the candidates, it is neither necessary nor otherwise permissible to look for any other source of power to supplement the scheme underlying the same.
15. It is not in dispute that respondent 2 had at all material points of time including the date of the issue of the notification inviting applications gone beyond the maximum age limit prescribed in the schedule. Born on the 6th of August, 1950, she was more than 46 years of age on the earliest of any of such dates. It follows that the said respondent was on the date of the notification and subsequent dates ineligible for an appointment.
16. Counsel appearing for the respondents however made a strenuous effort to justify the appointment by reference to the provisions of Rule 16 of the Pay and Recruitment Rules of the Institute and Rule 6 of the Karnataka Civil Services (General Recruitment) Rules, 1977. Rule 16 of the Pay and Recruitment Rules reads as under.-
'Other provisions:
In respect of matters not specifically noted here relating to Pay, Recruitment and Promotion, the appropriate rules of the State Government will apply to the employees of the Institute'.
17. It is obvious from a bare reading of the above that the General Recruitment Rules of the State Government shall have relevance only in regard to matters not specifically provided for in the Recruitment Rules of the Institute. The Recruitment Rules however make a clear provision as regards the 'Method of Recruitment', 'Age limit' and 'Qualifications' prescribed for appointments. The General Recruitment Rules as regards any one of those three aspects could therefore have no application to appointments under the Institute. Reliance upon the said rules for purposes of determining the age limit and matters incidental thereto is therefore misplaced.
18. There is yet another angle from which the issue can be examined. Rule 6 of the General Recruitment Rules is itself restricted to situations, where the Rules of Recruitment specially made and applicable to any service or post do not prescribe a higher age limit for appointment. This is evident from sub-rule (1) to Rule 6, the relevant part thereof reads as under.-
'Age limit for appointment.--(1) Save as otherwise provided in the rules of recruitment specially made and applicable to any service or post prescribing higher age limit, every candidate for appointment by direct recruitment must have attained the age of eighteen years and not attained the age of.-
(a) thirty-five years in the case of a person belonging to any of the Scheduled Castes or Scheduled Tribes or Backward Group-A;
(b) thirty-three years in the case of a person belonging to any of the Backward Group-B, Backward Group-C and Backward Group-D.
(c) thirty years in the case of any other person, on the last date fixed for the receipt of applications or on such other date as may be specified by the appointing authority:
Provided that in the case of the following repatriates the upper age limit shall be relaxed by three years for recruitment through competitive examinations held by the Karnataka Public Service Commission and upto forty-five years for all other recruitments, and it shall be further relaxed by five years for persons belonging to the Scheduled Castes and Scheduled Tribes among them.-
(a) persons of Indian origin who migrated to India from East Pakistan (now Bangladesh) on or after 1st January, 1964 but before 26th March, 1971;
(b) persons of Indian origin from Burma who have migrated on or after 1st June, 1963 and the repatriates from Ceylon (now Sri Lanka) who have migrated on or after 1st November, 1964;
(c) persons of Indian origin who have migrated from the East African countries of Kenya, Uganda and the United Republic of Tanzania;
(d) persons of Indian origin who have migrated from Vietnam'.
19. In the instant case, the Special Recruitment Rules, prescribe a higher age limit than the one prescribed by Rule 6 of the General Rules, which makes the later inapplicable.
20. That apart, in the case of Government appointments generally, the maximum age limit prescribed under Rule 6 for a candidate not belonging to a Scheduled Caste, Scheduled Tribe or any Backward Group is 30 years as on the last date fixed for the receipt of the applications or such other date as may be specified by the appointing authority. Sub-rule (2) to Rule 6 provides for enhancement in the age prescribed for recruitment in the case of persons belonging to SCs, STs and Backward Groups by five years and three years respectively unless the rules of recruitment framed for the concerned service themselves provide for such enhancement. In the instant case, since the rules of recruitment framed by the Institute themselves provide for enhancement to the extent of five years in the case of SCs and STs and three years in the case of Backward Groups, sub-rule (2) to Rule 6 would have no application. Sub-rule (2-A) of Rule 6 applies to cases, where the rules of Recruitment to any service of post prescribes an age limit lesser than the one prescribed by Rule 6(1) which is not the case here. Sub-rule (3)(b) of Rule 6, reliance whereupon was placed by Mr. Achar may at this stage be extracted:
'(3) Notwithstanding anything contained in sub-rule (1) the maximum age limit for appointment shall be deemed to be enhanced in the following cases to the extent mentioned namely.-
(a)xxx xxx xxx xxx;
(b) in the ease of a candidate who is or Was holding a post under the Government or a local authority or a Corporation established by a State Act or a Central Act or established by the Government under a State Act or Central Act and owned or controlled by the Government by the number of years during which he is or was holding such post or ten years whichever is less'.
21. It was argued that since respondent 2 had been in Government service, the number of years not exceeding 10 of any such service could be added to the maximum age limit otherwise prescribed by the Pay and Recruitment Rules of the Institute, thereby taking the upper age limit in the case of the 2nd respondent to 49 years or so keeping in view the fact that she had served the State Government for nearly 9 years. I find it difficult to accept that line of reasoning. It is true that as per Rule 6(3)(b), supra, the maximum age limit for appointment to the extent stipulated in para (b) of sub-rule (3) of Rule 6 is enhanced, but any such enhancement has to be by reference to the age prescribed by Rule 6(1). That is because, the benchmark for any enhancement in terms of Rule 6(3)(b) is the maximum age limit prescribed by sub-rule (1) of Rule 6. The words 'notwithstanding anything contained in sub-rule (1)' clearly signify that the enhancement to the extent and by the number of years permissible under sub-rule (3) is by reference to the age limit prescribed by sub-rule (1) of Rule 6. If the intention of the rule making authority was to provide for an enhancement beyond the maximum age limit prescribed by the special rules regulating appointments in any service, Rule 6(3) would have been worded differently. Instead of limiting the provision to enhancements beyond what is stipulated in sub-rule (1) of Rule 6, sub-rule (3) would have then said 'notwithstanding anything contained in sub-rule (1) or the age limit prescribed by any special rules governing appointments to service or posts...'. That however is not the position. Sub-rule (3) of Rule 6 does not make any reference to the age limits prescribed by special rules governing any service. The enhancement permissible in terms of Rule 6(3)(b) must therefore remain confined to the limits otherwise fixed by Rule 6(1). This would mean that in the case of a person, who has served under the State or a local authority or a Corporation, the age limit prescribed for recruitment in terms of Rule 6(1) shall for any such person stand enhanced by the number of years that he has served subject to a maximum of ten years. Stated differently, Rule 6(1)(c) read with sub-rule (3)(b) thereof do not envisage an appointment under the State or a person other than a Scheduled Caste, Scheduled Tribe or Backward group candidate if any such person is beyond 40 years of age. Respondent 2 was admittedly much beyond the age stipulated not only by the Pay and Recruitment Rules of the Institute, but also by the Civil Service General Recruitment Rules of the State as on the date of the notification inviting applications. She was therefore clearly ineligible for appointment.
22. In the light of the above, it is unnecessary for me to go into the merits of the other limb of the argument urged on behalf of the petitioner, although I am prima facie of the view that the non-preparation of a panel as envisaged by Rule 8(c) of the Pay and Recruitment Rules may not by itself invalidate the selection and the appointment. It is also unnecessary to go into the question whether the weightage given for the interview was keeping in view the nature of the appointment and the level at which the same was being made excessive.
23. In the result, this writ petition succeeds and is hereby allowed. The impugned appointment order of the 2nd respondent shall stand quashed and by a writ of quo warranto, the said respondent ousted from the post of Assistant Professor (Paediatric Cardiology) presently held by her. The Institute shall be at liberty to make a fresh appointment against the available post in accordance with law after inviting fresh applications from all those eligible for appointment. No costs.