Calcutta High Court (Appellete Side)
The Indian Science Congress … vs The Union Of India & Ors on 2 April, 2025
Author: Saugata Bhattacharyya
Bench: Saugata Bhattacharyya
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A. 167069 of 2023
CAN 3 of 2023
The Indian Science Congress Association & Ors.
-vs-
The Union of India & Ors.
For the Petitioners : Mr. Subir Sanyal, Advocate
Mr. Ratul Biwas, Advocate
Mr. Shoham Sanyal, Advocate
Mr. Sourojit Mukherjee, Advocate
For the Respondent Nos. 1 to 5 : Mr. Dhiraj Trivedi, Ld. D.S.G.,Advocate
Mr. Sukanta Chakraborty, Advocate
Ms. Anamika Pandey, Advocate
Ms. Sanjukta Guha, Advocate
For the Respondent Nos. 7 & 8 : Rajdeep Bhattacharyya, Advocate
Hearing concluded on : 6th March 2025
Judgment on : 2nd April, 2025
Saugata Bhattacharyya, J.:
1. The Indian Science Congress Association (hereinafter referred to as ‘said
Association’) its General President, one Executive Committee Member and
one Council Member have approached this court with the present writ
petition, inter alia, challenging an order dated 3rd May, 2023 and
subsequent communication dated 8th June, 2023, first one was issued by
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the Scientist ‘G & Head (AI)’ and the subsequent communication was issued
by the Under Secretary, Government of India, Department of Science and
Technology (hereinafter referred to as ‘DST’). By order dated 3rd May, 2023
said Association was intimated that its Rules & Regulations and Bye-Laws
were amended and the amended Rules & Regulations and Bye-Laws were
appended to the impugned order dated 3rd May, 2023 and there was further
direction to take necessary action to notify and implement the amended
Rules & Regulations and Bye-Laws immediately and an action taken report
was called for by DST.
2. By subsequent communication dated 8th June, 2023 referring to the
letter dated 9th May, 2023 being no. GP/I/2023-24 of the Executive
Secretary of said Association, the General President of the said Association
was further informed that former DG, CSIR being a renowned scientist was
nominated as a member of the Executive Committee by DST and the
composition of Executive Committee and the names of members of the said
Executive Committee were also delineated therein.
3. At the outset, Mr. Subir Sanyal, learned senior advocate representing the
petitioners has elaborated brief history of said Association from the time of
its inception. Said Association was originally registered under Act XXI of
1860 and now deemed to be registered under West Bengal Societies
Registration Act, 1961 (hereinafter referred to as ‘said Act of 1961’).
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According to the petitioners, it is well acclaimed scientific organization of the
country having its Head Quarter at Kolkata which started its journey 1914.
First congress of the said Association was held in 1914 at Kolkata and
Hon’ble Justice Sir Asutosh Mookerjee being the then Vice-Chancellor of the
University of Calcutta presided over the first congress. Initially there were
105 scientists from different parts of India and abroad attended the said
congress. In efflux of time the said Association has grown up and at present
it has more than thirty thousand members who are scientists. The annual
meeting of the said Association is held in the month of January every year.
Renowned personalities in the field of Science & Technology who made
endeavour for the promotion of science were the General Presidents of the
said Association and the first General President was Hon’ble Justice Sir
Asutosh Mookerjee and thereafter, Colonel Sir Sidney G. Burrard, Acharya
Prafulla Chandra Ray, Sir Rajendra Nath Mukherjee, Sir J.C. Bose,
Professor C.V. Raman, Professor M.N. Saha, Sir U.N. Brahmachari adorned
the chair of General President of the said Association.
4. It has been submitted that from 1972 said Association is in receipt of
Government grant without any interference in its autonomy for facilitating
the said Association to make endeavour for the development of science. A
Memorandum of Understanding (for short ‘MoU’) for the first time was
signed by said Association and DST from 2017-2018 and the last MoU was
signed for the year 2022-2023. According to the petitioners, the reason for
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introducing MoU was to deal with financial affairs of the said Association
without altering its Memorandum of Association, Rules & Regulations and
Bye-Laws. It is the specific contention made on behalf of the petitioners as
per terms and conditions contained in the said MoU which were in existence
from 2017-2018 to 2022-2023 said Association was permitted to function
following its Rules & Regulations and Bye-Laws without altering the nature
and character of the said Association and without tweaking three bodies
namely, Executive Committee, Council and General Body which were
formed and functioning based on the objects of said Association as
delineated in the Memorandum of Association.
5. In terms of Memorandum of Association of ISCA the objects are as
follows :-
a) To advance and promote the cause of Science in India;
b) To hold an annual Congress at a suitable place in India;
c) To publish such proceedings, journals, transactions and other
publications as may be considered desirable;
d) To secure and manage funds and endowments for the
promotion of science including the rights of disposing of or
selling all or any portion of the properties of the Association;
e) To do and perform any or all other acts, matters and things as
are conducive to, or incidental to, or necessary for the above
objects.
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6. As per the key features of the Regulations of the said Association
membership shall be open to all persons with graduate and equivalent
qualification who are interested in advancement of science in India. There
are Honorary Members, Sessional Members and persons studying in under
graduate level may be enrolled as Student Member provided his application
needs to be duly certified by the Principal or Head of the Department.
However, total number of Honorary Member is limited to 25. The notice of
this court has also been drawn to relevant part of the Regulations which
provides the composition of the Executive Committee of the said Association
consisting of General President, immediate past General President, General
President-Elect, two General Secretaries, Treasurer and ten members
elected by the General Body and Secretary or his nominee, DST,
Government of India. The procedure for electing ten members of the General
Body is also delineated in details under Rule 9(B). Similarly, in the
Regulations the composition of the Council is detailed and how the election
of seven members on the Council to be conducted by the General Body is
narrated in Regulation 13(B). Regulation 13(F) also provides that 1/3rd of
the members of Council shall form quorum. In terms of Regulation 14,
General Body of the said Association consists of all members (with voting
right) and its Honorary Members. In terms of Rule 15(A) the annual meeting
of the General Body is held during its session of the Congress, 1/3rd of the
members with voting right personally present at the commencement of the
meeting shall form quorum for the meeting.
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7. Much emphasis has been laid on Regulation 29 which deals with change
of Regulations. According to the said Regulation 29 proposal for addition
and alteration of the existing Regulations may be made by the Executive
Committee, the Council and the members with voting right or the Honorary
Members of the said Association and such proposal along with
amendments, if any and the opinions thereon of the Executive Committee
and the Council shall be placed before the General Body for its
consideration at its annual meeting during the session of Congress.
Regulation 29 (E) also provides that at the meeting of the General Body
voting on such proposals and amendments, shall be in accordance with
Regulation 15 and the proposal shall be accepted if three-fourth of the
number of members (with voting right) present, cast their vote in favour of
the proposals.
8. It has been submitted on behalf of the petitioners that DST proposed
amendment of Rules & Regulations and Bye-Laws of the said Association
and in response thereto a detailed representation was made by the General
President of said Association by letter dated 11th April, 2022 indicating in
three separate columns existing provisions of said Association, proposed
provision (by DST) and suggestion of said Association in connection with the
proposal of amendment of Rules & Regulations and Bye-Laws made by DST.
One of the proposals regarding amendment of Rules & Regulations and Bye-
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Laws is related to eligibility of Student Members which is confined to PG or
equivalent to B.E, B.Vet, MBBS etc. whereas such restriction of having PG
or equivalent degree as indicated in the proposed amendment is not there in
the Regulations of said Association. Said Association made objection to the
extent of the said amendment on the ground the aim of said Association to
bring inclusivity and to include science teachers with graduate qualification
as members of the association which would be defeated in accepting said
proposal. Another proposed amendment made by DST is minimum
qualification prescribed for membership is post graduate or equivalent
degree in Natural/Agricultural Sciences whereas the existing Regulations
provide that membership is open to all persons with graduate and/or
equivalent academic qualification who is interested in the advancement of
science in India. Such proposal of amendment of Regulation is also objected
by said Association and an alternative proposal has been made that
graduates can be members without voting rights but members having post
graduate qualification can cast vote in order to fulfill the aim of the said
Association to motivate members with general academic background. The
proposal for amendment of Regulation related to deletion of Sessional
Members and Student Members is also objected on the ground that large
number of students, school teachers and Sessional Members take
membership in order to attend the annual event and are benefited. The
proposal of deletion of Regulation relating to presence of elected members in
the Executive Committee is also objected on the ground that Executive
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Committees and Councils of Bodies like NASI, IASc., INSA and INAE are all
elected Bodies. The proposal of DST that the Treasurer shall be a regular
employee of appropriate level of said Association is also objected by the
Association on the ground that Treasurer is inducted as per West Bengal
Societies Registration Act, 1961 and Treasurer renders honorary service and
Treasurers of academies and professional bodies are elected representatives
which is well known practice in the country. Lastly, the proposal of
modification of composition of various committees of said Association on
replacing elected members by the nominated members which has been
made by the respondents is also opposed by the said Association on the
ground that the said Association would be deprived of its autonomy. Other
proposals relating to amendment of Regulations, Rules and Bye-Laws as
made by DST are accepted subject to certain modifications.
9. It was submitted on behalf of the petitioners that surprisingly after
submitting the response of said Association vide letter dated 11th April,
2022 relating to proposal to change Rules & Regulations and Bye-Laws,
Scientist ‘G & Head (AI)’ of DST by issuing impugned order dated 3rd May,
2023 informed the said Association through its General President that Rules
& Regulations and Bye-Laws of said Association have been amended and
are appended to the said order dated 3rd May, 2023 with direction upon the
said Association to take further necessary action to notify and implement
the amended Rules & Regulations and Bye-Laws with immediate effect and
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action taken report was called for. It was also contended on behalf of the
petitioners that the said order dated 3rd May, 2023 is cryptic which reflects
non-application of mind. Why deliberation of said Association as contained
in the letter dated 11th April, 2022 relating to the proposal of amendment of
Rules & Regulations and Bye-Laws as made by DST was discarded, was not
discussed in the said order dated 3rd May, 2023. There was another
communication dated 31st May, 2023 by the Under Secretary, UOI, DST
intimating the General President of the said Association to upload only one
Bye-Laws and Rules & Regulations as finalized by DST vide order dated 3rd
May, 2023 on said Association’s website to avoid confusion.
10. Subsequently, vide communication dated 8th June, 2023 Under
Secretary, UOI, DST informed the General President of the said Association,
the composition of the Executive Committee in terms of amended Rule 7(a)
of the Bye-Laws. Apart from General President, General Secretary
(Membership Affairs), General Secretary (Scientific Activities), names of nine
members of the new Executive Committee were indicated in the said
communication dated 8th June, 2023. On receipt of the aforesaid
communication dated 8th June, 2023 the General President of said
Association vide letter dated 20th June, 2023 intimated the Under Secretary
that duly elected Executive Committee for the year 2023-2024 is functioning
and the said Executive Committee includes representative of DST therefore
it would be legally not correct to notify another Committee.
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11. By further communication dated 26th June, 2023 of the Under Secretary,
UOI, DST the Executive Secretary of said Association was informed that in
terms of the newly amended Bye-Laws notification needs to be issued for
carrying out functions of the organization smoothly. Therefore, said
Association through its Executive Secretary was directed to issue
notification regarding formation of the Executive Committee as per letter
dated 9th May, 2023 which would be in terms of new amended Bye-Laws
and the same was directed to be intimated to the department.
12. It was also brought to the notice of this court by the learned advocate for
the petitioners that after issuance of the impugned order dated 3rd May,
2023 the Executive Secretary of the said Association vide letter dated 9th
May, 2023 informed the concerned authority of DST that Dr. Arvind Kumar
Saxena, General President of said Association by email dated 9th May, 2023
directed him to inform DST based on Rule 16C(v) of the existing Regulations
and Bye-Laws of said Association that it was agreed to implement newly
amended Bye-Laws which has been framed by DST. According to the
petitioners, the basis of the said letter dated 9th May, 2023 being no.
GP/I/2023-24 is email letter of General President of said Association which
was sent to the Executive Secretary. Copy of the said email letter dated 9th
May, 2023 is not part of the writ petition but during course of hearing same
was produced before court and taken on record. Short email letter dated 9th
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May, 2023 was read over during course of hearing and it was submitted
that on referring to Rule 16C(v) of the existing Regulations of said
Association though it was projected on behalf of DST that the General
President was in agreement to implement newly amended Rules &
Regulations and Bye-Laws framed by DST but the learned advocate for the
petitioners invited this court to consider said Rule 16C(v) which is at pages
49 & 50 of the writ petition containing provision that in absence of any
definite Regulation on any questions likely to arise in connection with the
administration of the Association or in case of a doubt as to the
interpretation of the Regulations, the General President shall give decision
and his/her ruling or interpretation which would prevail for the time being.
It was further contended on behalf of the petitioners keeping in view of the
provision as contained in said Regulation 16C(v) that the provision
contained therein is wholly inapplicable in accepting newly amended Rules
& Regulations and Bye-Laws as framed by DST. The purpose of such
Regulation 16C(v) is different. Therefore, email letter dated 9th May, 2023 of
the General President does not come in aid of DST in implementation of
amended Rules & Regulations and Bye-Laws. Furthermore, another email
letter dated 26th June, 2023 is enclosed to this writ petition based on which
it was submitted on behalf of the petitioners that the General President of
said Association intimated the General Secretary to withdraw the
notification which was issued by the General Secretary relating to
amendment and implementation of newly framed regulations as framed by
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DST, from said Association’s website immediately otherwise steps would be
taken against the said General Secretary.
13. Learned advocate for the petitioners in relation to amendment of Rules &
Regulations and Bye-Laws placed reliance on Regulation 29 of the Rules &
Regulations and Bye-Laws of the said Association vis-à-vis Section 4,
Section 8 and Section 9 of the said Act of 1961. According to the petitioners,
the method which has been followed by DST in amending Rules &
Regulations and Bye-Laws of the said Association is contrary to Regulation
29 of the said Association and Section 8 of the said Act of 1961. It was
argued on behalf of petitioners that merely by issuing impugned order dated
3rd May, 2023 nature and character of the Association cannot be altered
thereby a democratic registered society cannot be replaced by an autocratic
organization which would function at the dictate and behest of DST on
changing composition of the Executive Committee thereby removing the
elected members and incorporating the nominated members of DST.
14. It was submitted that as per Regulation 29 the proposal for amendment
of Rules & Regulations and Bye-Laws needs to be placed before the General
Body for its consideration at its Annual General Meeting and proposal shall
only be accepted if three-fourth of number of members (with voting right)
present cast their vote in favour of the proposals. Thereafter, steps are
required to be taken in terms of the provisions of Section 8 & Section 9 of
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the said Act of 1961. According to the petitioners, in absence of such steps
being taken by said Association as contemplated under Regulation 29 of the
said Association and Section 8 and Section 9 of the said Act of 1961
amendment of Rules & Regulations and Bye-Laws is impermissible.
15. In addition to the statements made on behalf of the petitioners regarding
their inability to notify the newly amended Rules & Regulations and Bye-
Laws as framed by DST in affidavit-in-reply affirmed on behalf of the
petitioners on 21st February, 2024 it was averred that in the General Body
Meeting held on 7th January, 2023 the proposal of amendment of Rules &
Regulations and Bye-Laws was rejected by the members present having
voting right for the year 2020-2023. The minutes of annual meeting of the
General Body held on 7th January, 2023 is appended to the said affidavit-in-
reply.
16. A supplementary affidavit filed on behalf of the petitioners which was
affirmed on 3rd August, 2023 contains averments in paragraphs 2 & 3
relating to the authority of the petitioners to institute the present writ
petition in reference to the order passed by a co-ordinate Bench on 1st
August, 2023. In order to satisfy the court minutes of the Executive
Committee meeting held on 2nd June, 2023 was brought on record by filing
the supplementary affidavit and the statements are made in paragraph 3 of
the supplementary affidavit that on virtual mode a meeting was convened on
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2nd June, 2023 relating to implementation of newly amended Bye-Laws
which are not in sync with the autonomy of said Association as ensured by
the existing Bye-Laws and 12 members were present in the virtual meeting
of the Executive Committee unanimously agreed to authorize the General
President, the petitioner no. 2 to take appropriate legal steps in order to
protect the interest of the said Association.
17. According to petitioners section 2(b) of the said Act of 1961 read with
Regulation 10(A) of the said association authorise the Executive Committee
to take steps in connection with the attempts of the respondent authorities
to amend Rules & Regulations and Bye Laws as it emanates from the
resolution dated 2nd June, 2023 adopted in the virtual meeting of the
Executive Committee. To buttress the decision taken by the Executive
Committee in its meeting dated 2nd June, 2023 reliance is also placed on the
order dated 20th March, 2024 passed on the application being CAN 2 of
2023 preferred by some members of ISCA seeking to be impleaded as
respondents in this writ petition wherein necessity of impleadment was not
felt as elected body of the said association approached the court with the
writ petition.
18. In support of submissions made on behalf of the petitioners reliance was
placed on (1999) 1 CHN 578 (Pradip Kumar Guha vs. State of West
Bengal & Ors.)
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19. On the other hand, first limb of submission advanced by Mr. Dhiraj
Trivedi, learned Deputy Solicitor General appearing on behalf of the Union
of India and Department of Science and Technology being respondent nos. 1
to 5 is against the meeting of the Executive Committee of said association
dated 2nd June, 2023 and the decision taken in the said meeting is also
questioned on the ground that the mode of holding meeting is contrary to
Regulation 11(A) of the said association. It is submitted that there was no
agenda of the said meeting dated 2nd June, 2023 and in absence of agenda
the decision taken thereby authorizing General President of the said
association to file court case against Department of Science and Technology
is void. According to respondents, the meeting dated 2nd June, 2023 is
illegal since in terms of Regulation 11(A) of said association apart from three
statutory meetings of the Executive Committee, additional meeting and
emergency meeting can be held; in case of additional meeting fortnight’s
notice and in case of emergency meeting week’s notice are required. In the
present case in connection with meeting dated 2nd June, 2023 no notice was
given and no such notice is disclosed by the petitioners in the writ petition
as well as in the supplementary affidavit. In furtherance of the submission
made that there was lack of notice of meeting dated 2nd June, 2023 it was
contended that nominee of Department of Science and Technology did not
receive any such notice that the meeting was going to be held on 2nd June,
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2023. Regulation 11(D) of the said association provides that minutes of the
proceedings of every meeting of Executive Committee needs to be prepared
but no such exercise was made for preparation of minutes of the meeting
dated 2nd June, 2023. It was submitted that if meeting dated 2nd June, 2023
is treated as emergency meeting in that event the decision taken by holding
such meeting should contain description of emergent situation which was
not done that makes the decision nugatory. Who were present in the said
meeting dated 2nd June, 2023 is not discernible from the document at page
7 to the supplementary affidavit affirmed on 3rd August, 2023 and
authorization letters issued by the members of the Executive Committee did
not refer specifically the meeting dated 2nd June, 2023. Therefore, the stand
which is taken on behalf of respondent nos. 1 to 5 is that the meeting held
on 2nd June, 2023 was erroneous and no credence may be given to such
meeting and the decision taken in the said meeting on 2nd June, 2023
authorizing petitioner no. 2 to take legal steps against the decision of the
respondent authority to amend Rules & Regulations and Bye-Laws of the
said association is void ab initio as such petitioner no. 2 is not authorized to
present this writ petition being the General President of the said association
which makes the present writ petition not maintainable.
20. Reliance is also placed on Regulation 26 of said association which
according to respondent authorities empowered the Executive Secretary of
shouldering legal responsibilities who is also responsible for general
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administration. It is contended that the Executive Secretary took steps for
implementation of newly framed Rules & Regulations and Bye-Laws as
communicated vide order dated 3rd May, 2023 which is apparent from e-
mail letter dated 9th May, 2023 addressed to the General President of the
said association.
21. Based on the facts as submitted on behalf of the respondent authorities
that the said association is being funded by the Union of India through the
Nodal Department i.e. DST from 1947 which has transformed the said
association as Article 12 Authority over the years. It is asserted that apart
from fund being provided by the Union of India functionally and
administratively the said association is dominated and controlled by the
DST/ Union of India. In support such submission reliance was placed on
the judgment of the Hon’ble Bombay Court reported in 2011(2) MhLJ 723
(Indian Council of Agricultural Research (ICAR), New Delhi & Anr. vs.
Duryodhan Hiraman Ingole & Ors.) and the judgment of the Hon’ble
Supreme Court reported in 1981 (1) SCC 722 (Ajay Hasia Others. vs.
Khalid Mujib Sehravardi & Ors. Placing reliance on paragraph 9 of Ajay
Hasia (supra) it was submitted that since DST has deep and pervasive
control over the said association which should be indicative of the fact that
the said association is “other authorities” as contemplated under Article 12
of the Constitution of India. Reliance was also placed on two other decisions
– (2013) 5 SCC 470 (Rajasthan State Industrial Development and
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Investment Corporation And Another – vs – Diamond & Gem
Development Corporation Limited And Another) and (1990) SCC 613
(Charan Lal Sahu – vs – Union of India).
22. Much emphasis was laid on MoU which was being signed on behalf of
the said association and DST from 2017-2018 onwards and the last MoU
which was made for the year 2022-2023 is annexed at pages 74 onwards of
the writ petition. Under Part-II of the said MoU delineating responsibilities of
the institute which has been provided in Clause 3 that for statutory bodies,
the provisions of Parent Act and rules and regulations made thereunder, will
apply. Clause 4 provides the institute shall carry out such directions as may
be issued to it from time to time, by the Government of India for its efficient
management. It was submitted that based on the authority as derived from
Clause 4 of Part-II of MoU, Union of India/DST is authorized to issue order
dated 3rd May, 2023 thereby directing said association to amend Rules &
Regulations and Bye-Laws and to implement the Rules & Regulations and
Bye-Laws which were framed by DST.
23. According to the respondent authorities, MoU was introduced for
providing fund to the said association in terms of the relevant provisions of
General Financial Rules, 2017 (for short ‘GFR’). Rule 230(14) of GFR
contemplates any other special terms and conditions or procedures for
transaction of business as Government may desire to be followed by the
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Grantee Institution or Organization, shall be got incorporated in the Articles
of Association or Bye-Laws of the Institute or Organization concerned before
release of grants-in-aid. According to the respondents, since said
association signed MoU which was introduced in terms of relevant
provisions of GFR made Rule 230(14) applicable in case of the said
association and in terms of Rule 230(14) as per desire of the Union of India
procedure for transaction of business of the said association if required
shall be provided in Articles of Association or Bye-Laws of the said
association which would be pre-condition for release of grant-in-aid. In
other words, the meaning which was attempted to be attributed based on
Rule 230(14) of GFR is empowering Union of India/DST to amend or
substitute new Rules & Regulations and Bye-Laws which were framed by
the Central Organization for the said association since said association is in
receipt of Central government grant. On applicability of GFR one office
memorandum dated 2nd November, 2010 issued by the under Secretary to
the Government of India, Ministry of Finance, Department of Expenditure,
was relied upon wherein it was provided that relevant provisions contained
in GFR shall be deemed to be applicable to autonomous bodies except to the
extent of Bye-Laws of an autonomous body provides for separate financial
rules which have been approved by the Government. Based on such office
memorandum dated 2nd November, 2010 it is submitted that GFR is
applicable to the said association notwithstanding the provisions of GFR
being repugnant to the existing Rules & Regulations and Bye-Laws of said
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association as those existing Rules & Regulations and Bye-Laws are
repudiated by the respondent authorities by deciding to amend existing
Rules & Regulations and Bye-Laws on implementation of new set of Rules
and Bye-Laws as communicated vide order dated 3rd May, 2023.
24. On behalf of added respondent nos. 7 & 8 it was submitted that there are
altogether 22 employees who are working in said association and concern
has been expressed on payment of their salaries in the event government
grant is stopped. According to added respondents, their salaries are being
paid out of the fund provided by the Union of India/DST therefore they are
apprehending in case fund is not provided by the Central Authorities they
may suffer due to non-payment of salaries. According to these respondents,
previously certain amendments to the Rules & Regulations and Bye-Laws
were made by said association without taking recourse to the relevant
provisions of the said Act of 1961; therefore, in implementing new Rules &
Regulations and Bye-Laws as communicated vide order dated 3rd May, 2023
to said association, it is not required to follow the statutory provisions which
were given go-by previously in similar situations.
25. From the respective submissions made on behalf of the parties it appears
that said association was formed in 1914 and registered under Act XXI of
1860 and subsequently registered under the said Act of 1961. Objects of the
said association are delineated under clause 3(a) to 3(e) of Memorandum of
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Association. Perusal of the objects reveals that the said association is
primarily engaged in promoting cause of science, holding annual congress
at a suitable place in the country, publish science journals and other
publications as considered to be found desirable, management of funds and
endowments for promotion of science along with miscellaneous objects as
stated under clause 3(e). Said association is in receipt of financial grant
from Central Government however time of commencement of extending such
grant is disputed as petitioners claimed such grant commenced from 1972
whereas on behalf of respondent nos. 1 to 5 it was alleged that grant is
being extended from 1947. Another important feature is signing of MoU
from 2017-2018 based on which it was argued by the respondents that said
association is required to follow GFR. Therefore, the issue is poised in
between applicability of relevant provisions of the said Act of 1961 vis-a-vis
terms and conditions contained in MoU.
26. It was specifically submitted on behalf of the petitioners that the said
association squarely comes under the purview of the said Act of 1961 as a
result whereof signing of MoU from 2017-2018 by the said association does
not absolve said association of sweep of said Act of 1961. To rebut such
claim much stress was laid on behalf of the respondent nos. 1 to 5 on terms
and conditions of MoU which was being signed by the said association from
2017-2018 onwards read with relevant provisions of GFR. Reliance was laid
on clause1 under Part – II of MoU which provides that institute would
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function as per provisions of its Memorandum of Association (MoA), Rules &
Regulation and Bye-Laws as approved by Government of India (for short
GoI). Authority was conferred upon GoI for creation of posts including
upgradation and down-gradation of posts, condition of service of employees
of the institute shall be identical to those in case of Central Government
employees and institute is required to carry out such direction as may be
issued to it from time to time by GoI for its efficient management. It was
argued that said association being signatory to MoU is under obligation to
accept Rules & Regulations and Bye-Laws approved by GoI and directions
which are issued from time to time by GoI for efficient administration of the
said institute. Therefore, said association is under obligation on accepting
impugned order dated 3rd May, 2023 of DST to adopt and implement
amended Rules & Regulations and Bye-Laws which are appended to said
order dated 3rd May, 2023 and accordingly reconstitute Executed Committee
in terms of letter dated 8th June, 2023 of the DST.
27. While asking the General President of the said association to reconstitute
Executive Committee in terms of the composition as delineated in the said
letter dated 8th June, 2023, one e-mail letter of General President dated 9th
May, 2023 was referred to which is not part of record but during course of
hearing said e-mail letter dated 9th May, 2023 was placed before this court
by which General Secretary was conveyed alleged consent under Rule 16C(v)
of Regulations and Bye-Laws of said association for implementation of the
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Regulations and Bye-Laws as framed by DST. It was argued such e-mail
letter dated 9th May, 2023 of the General President shows acceptance of
Regulations and Bye-Laws framed by DST on behalf of said association.
According to respondent nos. 1 to 5, signing of MoU by the said association
brings it within the domain of GFR; Rule 229(xi) provides autonomous
organizations as also others with a budgetary support of more than rupees
five crores per annum should be required to enter into a Memorandum of
Understanding with the Administrative Ministry or Department with
specifications as contained in sub-rule (xi). According to respondent
authorities, Rule 230(14) is relevant in appreciating the effort made by DST
to amend Rules & Regulations and Bye-Laws of the said association since it
is provided therein that any other special terms and conditions or
procedures for transaction of business as government may desire to be
followed by Grantee Institution or Organization, shall be got incorporated in
the Articles of Association or bye-laws of the Institution or Organization
concerned before release of Grants-in-aid. Sanction of financial grants in
favour of said association according to DST makes the said association
liable under Rule 230(14) of GFR read with terms and conditions of MoU to
accept amended Rules & Regulations and Bye-Laws as communicated by
order dated 3rd May, 2023. Therefore, it is also obligatory on the part of said
association to constitute its Executive Committee as per the composition
details of which were communicated vide letter dated 8th June, 2023.
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28. Now the test is whether the said association which is indisputably
registered under said Act of 1961 and was formed in 1914 for receiving
limited financial grant from the Central Government based on signing MoU
from 2017-2018 is compelled to amend its age-old Rules & Regulations and
Bye-Laws in defiance of Section 8 and Section 9 of the said Act of 1961 read
with Regulation 29 of said association. Section 4(1) of the said Act of 1961
postulates any seven and more individuals associated for any of the objects
mentioned in Sub-Section 2, may subscribe their names to a Memorandum
of Association and file it along with a copy of the regulations with the
Registrar for the registration of association as a society under this Act.
Alteration of Memorandum and Regulations is provided under Section 8
which is quoted below :
“8. Alteration of memorandum and regulations.- (1) A society
shall not alter its memorandum except with the previous permission
of the Registrar in writing, and the votes of three-fourths of its
members.
(2) Before granting permission under sub-section (1), the Registrar
shall satisfy himself that the alternation does not make the society
ineligible for registration under this Act.
(3) Subject to the provisions of this Act, the rules and the provisions
of the memorandum a society may, by the votes of three-fourths of
the members, alter its regulations.”
25
29. After the steps taken as prescribed under Section 8 by any association
registered under the said Act of 1961 for alteration of Memorandum and
Regulations, a copy of every alternation of the memorandum and
regulations needs to be filed with the Registrar within a specified time under
Section 9(1). Court finds it apt to quote Section 9 below :
“9. Altertions to be filed.- (1) A copy of every alteration of the
memorandum and of the regulations shall be filed with the Registrar
within thirty days of such alteration.
(2) The Registrar shall, except for special reasons to be recorded by
him in writing within thirty days from the date of such receipt,
record the alteration and send an intimation of the fact to the society
or communicate to the society his objections to such alteration.
(3) An appeal shall lie to the State Government against any objection
made by the Registrar and the decision of the State Government on
such appeal shall be final.
(4) An alteration shall have effect from the date on which the
intimation referred to in sub-section (2) is received by the society or
in the event of any objection being raised by the Registrar, from the
date on which the State Government allows the alteration on
appeal.”
30. Regulation 29 of the said association also prescribes the procedure which
is required to be followed for altering its regulations which requires proposal
for alteration of regulations can be made by Executive Committee, the
Council, the Members with voting right or the Honorary Members and such
26
proposal and opinions thereon of the Executive Committee and the Council
is required to be placed before the General Body for its consideration at its
Annual Meeting during the Session of the Congress. It is provided under
Regulation 29(E) that in the meeting of the General Body voting on proposal
for amendment is required to be conducted in prescribed manner and,
thereafter, proposal for amendment is accepted if three-fourth of the number
of members (with voting right) present, cast their vote in favour such
proposal.
31. Said association being registered under the said Act of 1961 for
amending its Rules & Regulations and Bye-Laws is obliged to follow Section
8 and Section 9 read with Regulation 29 of the association. This proposition
is fortified by ratio of Pradip Kumar Guha (supra) wherein a coordinate
bench decided that a mere resolution adopted at a Special General Meeting
is not sufficient for the purpose of amendment and/or alteration of the
Rules & Regulations unless there is due compliance of Section 8 of the West
Bengal Societies Registration Act, 1961. On accepting the case made out on
behalf of respondent nos. 1 to 5 if mandamus is issued directing the said
association to amend its Rules & Regulations and Bye-Laws and
reconstitute Executive Committee following order dated 3rd May, 2023 and
letter dated 8th June, 2023 without taking recourse to Section 8 and Section
9 of the said Act of 1961 read with Regulation 29 of the said association
27
that would make statutory provisions of the West Bengal Societies
Registration Act, 1961 nugatory.
32. MoU as it appears from page 75 of the writ petition was signed in
pursuant to Rule 229(xi) of GFR-2017. Rule 229 of GFR contains general
principles for setting up of autonomous organization. Said association is
age-old association which commenced its journey from 1914 which is
admittedly registered under the said Act of 1961 as such, provisions to
amend Rules & Regulations of said association whether can be governed by
certain clauses as contained in MoU since it was signed on behalf of said
association from 2017-2018 onwards. It needs to be recorded herein as it
appears from MoU that same was signed by the said association and DST in
pursuance of Rule 229(xi) of GFR-2017 and Rule 229 is confined to general
principles for setting up of autonomous organizations; whether Rule 229
can be extended to the said association which was set up in 2014. Much
emphasis has been laid on Rule 230(14) of GFR whereunder transaction of
business by the grantee institute or organization is required to be conducted
in a particular manner which will form part of Articles of Association or Bye-
Laws of the institution or organization concerned for release of Grants-in-
aid. Therefore, object of Rule 230(14) of GFR is to prescribe certain
conditions relating to transaction of business which is to be followed by
grantee institute before release of Grants-in-aid. In the present case, if court
accepts the submission made on behalf of respondent nos. 1 to 5 that grant
28
is coming from the Central Government from 1947 onwards; then at the
time of signing of MoU on behalf of said association from 2017-2018
onwards why the respondent authorities found it necessary to follow the
provisions of Rule 230(14) of GFR is not discernible. At the same time, it
needs to be kept in mind that MoU was signed pursuant to Rule 229(ix) of
GFR-2017 which is only confined to the purpose of setting up of
autonomous organization.
33. Taking cue from Rule 230(14) of GFR-2017 that certain steps are
required to be taken relating to transaction of business before release of
Grants-in-aid by the Central Government and the concern which was
expressed by the Deputy Solicitor General relating to misuse of Government
Grants detailed in paragraph 13(vii) of the affidavit-in-opposition used on
behalf of respondent nos. 1 to 5 to the writ petition this court granted
opportunity to the respondent nos. 1 to 5 vide order dated 5th September,
2024 to fix modality for proper utilization of fund sanctioned by the Central
Government in favour of the said association, if same is found expedient
and to disclose such modality by filing an affidavit.
34. A supplementary affidavit was affirmed on behalf of respondent nos. 1 to
5 on 7th October, 2024 pursuant to the order dated 5th September, 2024 to
bring on record modality/Standard Operating Procedure (SOP) for utilization
of financial grant comes from the Central Government. However, on perusal
29
of the SOP being annexure-A to the said affidavit it transpires that DST
proposed constitution of Finance and Establishment Committee with varied
administrative powers to control general service conditions of permanent
employees of the said association, to frame conduct rules and leave rules of
employees and other series of administrative powers which have no nexus
with regard to curb alleged misuse of funds sanctioned by the Central
Government. On mere perusal of SOP would reveal a situation where
respondent nos. 1 to 5 in the guise of fixing modality/SOP for proper
utilization of government grant has made a tacit attempt to usurp
administrative control over the said association though same was not the
object of passing the order by this court on 5th September, 2024. Nature of
SOP framed by respondent nos. 1 to 5 taking advantage of the order dated
5th September, 2024 passed by this court has exacerbated the case of the
respondent authorities and it reveals a situation if amendments of Rules &
Regulations and Bye-Laws is not found to be possible in terms of impugned
order dated 3rd May, 2023 as well as letter dated 8th June, 2023 another
veiled effort is made on framing SOP apparently which was framed for
proper utilization of Central Government fund to amend rules & regulations
and bye laws of the said association.
35. From the submissions made on behalf of parties and case made out by
them it appears that entire financial burden of the said association is not
borne by the Central Government/DST and to the extent of rupees five crore
30
per year fund is allotted in favour of the said association out of which lion’s
share is spent for paying officers and staff of the said association and rest is
utilized for other purposes. Therefore, it cannot be inferred that the said
association is fully financed by the Central Government/DST. However, the
Central Government/DST is authorized to express its concern before this
court relating to utilization of government grants if it is found that the same
is not properly utilized. To dispel doubt in the mind of the respondent
authorities concerning utilization of government grant account of said
association needs to be audited by the Comptroller and Auditor General
(CAG) periodically and said association is agreeable to it.
36. By letter dated 11th April, 2022 said association on receipt of proposed
amendment of Rules & Regulations and Bye-Laws made certain suggestions
and objections as detailed in tabular form appended to the said letter dated
11th April, 2022. There were objections raised by the said association
relating to eligibility of Student Members, fixing of minimum qualification
for membership i.e. Post-Graduation or equivalent degree in
Natural/Agricultural Sciences, deletion of Sessional Members and Student
Members, exclusion of Elected Members in the Executive Committee and to
be replaced by Nominated Members therein and substitution of Elected
Members by Nominated Members in other Committees of the said
association. But those objections were discarded without assigning any
cogent reasons. According to said association if proposed amendments
31
without alterations as per objections raised by the said association which
were communicated by letter dated 11th April, 2022 are accepted then said
association would loose its inclusivity by excluding members not having
requisite educational qualification as prescribed by DST in the proposed
amended Rules & Regulations and Bye-Laws and more important is said
association also will loose its democratic character if Executive Committee
and other Committees consist of majority members who are nominated by
government authorities. It was categorically submitted before the court if
objections and observations made by the said association were taken into
consideration and accordingly proposed amended Rules & Regulations and
Bye-Laws would have been altered in that event said association being a
registered society under said Act of 1961 could take steps for amendment of
its Rules & Regulations and Bye-Laws following Regulation 29 of said
association read with Section 8 and Section 9 of the said Act of 1961.
37. Court taking note of relevant provisions of the said Act of 1961 read with
Regulation 29 does not find it apt to issue mandamus directing the said
association to amend its Rules & Regulation and Bye-Laws de-hors the
provisions as contained in Section 8 and Section 9.
38. Argument was advanced on behalf of respondent nos. 1 to 5 that the
decision taken in the meeting dated 2nd June, 2023 by the Executive
Committee by conducting virtual meeting is defective due to lack of proper
32
notice and agenda. It was submitted in terms of Regulation 11 notice was
required to be issued to the members of the Executive Committee in the
prescribed manner as provided in the said Regulation and in absence of
same authorization made in favour of petitioners vide decision taken in the
meeting dated 2nd June, 2023 was not valid authorization. However, such
technical plea raised on behalf of respondent nos. 1 to 5 pales into
insignificance since out of total 17 members of the Executive Committee 12
members participated in the meeting held on 2nd June, 2023 and submitted
authorization letters in favour of General President of the said association to
take necessary legal steps against the decision of the respondent authorities
to amend Rules & Regulations and Bye-Laws. Therefore, the virtual meeting
dated 2nd June, 2023 does not suffer from lack of quorum. In addition
thereto in the affidavit-in-reply petitioners have disclosed minutes of annual
meeting of General Body dated 7th January, 2023 wherein proposal of
amendment of Rules & Regulations and Bye-Laws was rejected by the
members leaving no scope to the Executive Committee to take steps for
amendment of its parent Rules & Regulations and Bye-Laws in terms of
relevant provisions of said Act of 1961 read with Rule 29 of the Regulation
of said association.
39. Respondent nos. 1 to 5 relied upon one e-mail letter dated 9th May, 2023
addressed to the Executive Secretary of the said association by its General
President regarding implementation of amended Rules & Regulations and
33
Bye-Laws framed by DST in reference to Regulation 16(C)(v) which provides
in absence of any definite Regulation on any questions likely to arise in
connection with administration of the association or in the case of a doubt
as to the interpretation of any of the Regulations the General President shall
give a decision and his/her ruling or interpretation shall prevail for the time
being. Provision under Rule 16(C)(v) does not have nexus with amendment
of Rules & Regulations and Bye-Laws of the said association for which a
separate procedure is prescribed under Regulation 29 vis-a-vis Section 8
and Section 9 of the said Act of 1961. Therefore, the issue of acceptance of
proposed Rules & Regulations and Bye-Laws framed by DST is not covered
by said Regulation 16(C)(v) and there is no exclusive right conferred upon
the General President to adopt Rules & Regulations and Bye-Laws of DST
without following procedure as envisaged under Regulation 29 and the
relevant provisions of the said Act of 1961.
40. It is argued on behalf of respondent nos. 1 to 5 that petitioners cannot
approbate and reprobate based on ratio of decision reported in (2013) 5
SCC 470 (Rajasthan State Industrial Development and Investment
Corporation and Another vs. Diamond and Gem Development
Corporation Limited and Another) in the context that said association
being signatory to MoU is estopped from challenging the decision of DST to
amend Rules & Regulations and Bye-Laws. In view of the discussion alluded
above in consideration of Section 8 and Section 9 of the said Act of 1961
34
read with Regulation 29 of the said Association qua scope of MoU pursuant
to Rule 229(xi) of GFR-2017 challenge laid against alternation of Rules &
Regulations and Bye-Laws cannot be termed an act of approbate and
reprobate on the part of the said association. The very Act of DST to make
an effort to amend Rules & Regulations and Bye-Laws vide impugned order
dated 3rd May, 2023 thereby substituting the present Executive Committee
of the association by the proposed Executive Committee which chiefly
consists of nominated members goes to show that the Central
Government/DST does not have deep and pervasive control over the said
association. Moreover, this court has held in preceding paragraphs that
there is limited financial grant extended by the Central Government/DST in
favour of said association which does not satisfy the tests as contained in
paragraph 9 of the judgment of the Hon’ble Supreme Court in Ajay Hasia
(supra) wherein it has been succinctly held in paragraph 9(2) that financial
assistance of the State is such which can meet almost entire expenditure of
the corporation and it would afford some indication of the corporation being
impregnated with governmental character. Therefore, attempt made on the
part of respondent nos. 1 to 5 to describe the said association as an
authority under Article 12 of the Constitution, fails. Facts of this case and
provisions of Section 8 and Section 9 of the said Act of 1961 since found to
be relevant by this court in altering Rules & Regulations and Bye-Laws of
said association, doctrine of necessity as enunciated by the Hon’ble
Supreme Court in the judgment reported in (1990) 1 SCC 613 (Charan Lal
35
Sahu vs. Union of India) does not come in aid of the respondent
authorities.
41. In aforesaid conspectus impugned order dated 3rd May, 2023 notifying
amended rules & regulations and bye Laws and subsequent letter dated 8th
June, 2023 intimating altered composition of the Executive Committee
stand set aside.
42. Writ petition is allowed to the above extent and same is disposed of.
Connected application if any pending, is also disposed of.
43. Urgent photostat certified copy of the order, if applied for, be given to the
parties, upon usual undertakings.
(Saugata Bhattacharyya, J.)
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