Allahabad High Court
Harsh Vardhan Agarwal And Ors. vs Director General, Indian Council Of ... on 5 February, 1998
Equivalent citations: (1998)2UPLBEC1423
Author: O.P. Garg
Bench: O.P. Garg
JUDGMENT O.P. Garg, J.
1. To combat a menace of breeding of mosquitoes which by itself a health hazard of mosquitoes which by itself is a health hazard throughout the country, Malaria Research Centre (for short 'MRC') with headquarters at New Dehli was constituted under the aegis of the Indian Council of Medical Research f ICMR' for brevity), which is a Society, registered under the Societies Registration Act No. XXI of 1860. In course of time MRC spread its wings throughout the length and breadth of the country and field stations were opened at various places in India to facilitate research work by expert research scientists to study the causes of the biological growth of various malpractices, their control and eradication, and by the very nature of the work, the operational area of these fields-was villages. These parasites are found in large numbers where enormous pits .and ponds filled up with dirty water, specially during the rainy season and the research scientists are aided t(r) collect samples of these parasites by Research Assistants appointed by MRC, Delhi with the help of labourers who are engaged on daily wages or purely on temporary basis as the work is seasonal and does not require their engagement throughout the year. Whenever the work of field station is over, which is retained hardly for 10 years or so, then it is closed down and shifted to other areas, where the menace of mosquitoes is found alarming after survey by the higher officials of the MRC.
2. The petitioners, who are 5 in number are class III and IV employees employed at MRC Shahjahanpur, in Uttar Pradesh. The petitioner No. 1-Harash Vardhan Agarwal and petitioner No. 4-Mangat Ram Jedli are employees of class III cadre, having been appointed in the years 1969 and 1987 respectively. The other three petitioners, namely, O.P. Lal. P.K. Rai, and Devish Kumar Misra are class IV employees. Except P.K. Rai and Devish Kumar Misra, petitioners, all the other three petitioners are working in the regular pay scales. P.K. Rai and Devish Kumar Misra have been engaged as class IV employees on a consolidated salary of Rs. 2500 per month. The establishment of MRC at Shahjahanpur consists of about 50 workers. These workers formed a Union for them selves and informed the Director General of ICMR Delhi about the formation of the Union on 30th May, 1996. The case of the petitioners is that the idea of forming an Association or Union of the workers was not palatable to the higher authorities and having felt inensed, they, with a view to victimie the petitioners, transferred them along with one another person Shanti Kumar to Madras by order dated. 3.6.1996, which is Annexure 10 to the writ petition. It is also alleged that Dr. G.D. Dutta, Research Officer has written a letter to the then Officer Incharge of Shahjahanpur to allow the petitioners to continue at Shahjahanpur and that similar recommendation was made by the Officer Incharge to the Director General ICMR. But no heed was paid to their recommendations. According to the petitioners, they have a fundamental right to from Union under Article 19(c) of the Constitution of India and, therefore, the respondents could not take any exception to the formation of the Union. The petitioners earlier filed Civil Misc. Writ No. 20289 of 1996 before this Court. This writ petition was disposed of on 4.7.1996 with the direction that since the Officer Incharge of the Unit had intervened in the matter, the concerned authorities shall consider and decide the representation of the petitioners within specified time. The representations made by the petitioners have been rejected by the Director General ICMR on 24.7.1996, a copy of which is Annexure 14 to this writ petition. It is this order, which has been challenged in the present writ petition by the petitioners on the ground that the order of transfer and rejection of their representation made in the light of the orders of this Court are illegal and bad. It is also alleged that the Director General ICMR has failed to take into account the awards made by the Labour Courts in favour of petitioner No. 1-Harsh Vardhan Agarwal while he was posted at Port Blair. In the dispute which the petitioner No. 1 raised before the Labour Court at Port Blair, he claimed Duty Allowance and the plea taken by the respondents in that labour dispute was that the petitioner No. 1 had no liability of All India transfer and, therefore, he was not entitled to duty allowance and it was for this reason that the claim for duty allowance was disallowed by ,the Labour Court. A copy of the order of the Labour Court is Annexue 7 to the writ petition. A reference was also made to another Labour Court award made in favour of the petitioner No. 1 on 14.10.1993, Annexure 8 to the writ petition, whereby it was ordered that the petitioner No. 1 shall be transferred from Port Blair to some establishment on the main land; It was urged that the awards made by the Labour Court are binding on the respondents and now they are debarred from transferring the petitioners from Shahjahanpur to any other establishment. The plea that the class IV employees cannot be transferred to an out-station or for that matter to a place like Madras from Shahjahanpur has also been taken. Accordingly, by means of the present writ petition, the petitioners have prayed that the order of transfer dated 3.6.1996, Annexure 10 to the writ petition and the order dated 24.7.1996, passed by the Director General, ICMR rejecting their, representations be quashed and the respondents be restrained from preventing the petitioners to perform their duties at MRC Shahjahanpur.
3. Counter and rejoinder affidavits have been filed. The. plea taken in the counter affidavit by the respondents is that by the very nature of the work, the petitioners are holding transferable post; that they have become surplus at Shahjahanpur and their services are sought to be usefully utilised at Madras where there is scarcity of staff. It is also stated that class IV employees who were engaged on consolidated salary as well as on temporary basis have been retained in service and are being transferred to Madras to continue their employment though there is no such obligation on the part of respondents and they could easily dispense with their services engagement. A preliminary objection about the maintainability of the present writ petition has also been taken by the respondents. It is alleged that ICMR is an authorities body and is, therefore, not covered by the expression 'state' as occurring in Article 12 of the Constitution of India, and since the ICMR which is a registered society is not an instrumentality or agency of the State the extra ordinary jurisdiction to issue writs under Article 226 of the constitution of India cannot be invoked in the present case.
4. Heard Dr. R.G. Padia, learned Counsel for petitioners and Sri P.M. Gupta, learned Counsel for the respondents at considerable length.
5. The main question for consideration is whether ICMR is 'state' as defined under Article 12 of the Constitution. For a proper consideration of this question, it is necessary to look into Constitution of the body, the purposes for which it has been created, the manner of its functioning including mode of its funding and the broad features which have been found in the several decisions of the Supreme Court as well as of this Court to be relevant in the matter of determining a dispute of this type. The ICMR was constituted in the year 1949 with its principal aims and objects, inter alia, to initiate, aid, develop and coordinate medical and scientific research in India with the help of research Scientists, the funds for which sought, and promised to be required by gifts, donations and subscription of cash and securities. Rai Kumari (Smt.) Amrit Kaur and 12 others, eminent personalities of distinction, some holding high position in Health Services were the members of the Governing Body of ICMR. It was registered as a Society under the Societies Registration Act, 1860. The Governing Body appointed a person of high ranking of health Services, designated as Director General, ICMR, who was to exercise all the executive and administrative powers. The Health Minister, Government of India is to be the President of the Council and the Secretary of the Ministry of Health and Family Welfare of the Government of India is the Vice President of the Council. The Governing Body has been authroised to appoint, with the approval of the Central Government, a Director General of the Council to act as the Chief Executive of the Council. Besides official members, certain non-official members were also nominated to the Council. They were non-medical Scientists of eminence, one representative to be elected by Rajya Sabha, two representative to be elected by Lok Sabha and three representatives of the Medical Faculties of the Universities. The objects for which the. Council was established as described in the Memorandum of Association, are :-
(i) To take over and manage the assets of the Indian Research Fund Association (registered under the previsions of Societies Act XXI of 1860) on its dissolution; on such part thereof as can be taken over and" manage the assets of any parts of the assets of any other organization having objects similar to those of the Council.
(ii) The prosecution and assistance of research the propagation of knowledge and experimental measures generally; in connection with the causation; mode of spread; and prevention of diseases; primarily those of communicable nature.
(iii) To initiate aid; develop and coordinate medical scientific research in India and to promote and assist institutions for this study of diseases, their prevention; causation and remedy.
(iv) To finance inquiries and researches.
(v) To exchange information with other institutions, associations and societies interested in the same objects, and specially in the observation an study of diseases in the east, and in India in particular.
(vi) To prepare print, and publish any papers or periodicals in furtherance of the objects of the council and to contribute to any such periodicals.
(vii) To issue appeals and applications for money and funds in furtherance of the said objects and to accept gifts, donations and subscriptions of cash and subscriptions of cash and securities and of any property either movable or immovable.
(viii) To invest and deal with the funds and money of the council of the Council or entrusted to the Council not immediately required, in such manner as may from time to time be determined by the governing body.
(ix) To permit the funds of the council to be held by the Government of India.
(x) To acquire and hold; whether temporarily or permanently; any movable or immovable property necessary or convenient for the furtherance of the objects of the council and Whether in India or outside the frontiers of India.
(xi) To sell; lease; exchange and otherwise transfer all or any of the properties; movable or immovable of the council.
(xii) To construct, maintain and alter any buildings or works necessary or, convenient for the purposes of the council.
(xiii) To undertake and accept the management of any endowment or trust funds or donation the undertaking where of may seem desirable.
(xiv) To establish a provident fund for the benefit of employees,
(xv) To offer prizes and to grant scholarships; including travelling scholarships in furtherance of the objects of the council.
(xvi) The doing of all such other lawful things as are incidental or conductive to the attainment of the above objects.
The office of the council is to situate at the Headquarters of the Government of India. The accounts of the council shall be maintained by the Director General and are auditble by Comptroller and Auditor General of India. The annual report of the work of the council during the preceding financial year and the annual receipt and payment account; income and expenditure account and the balance sheet together with audit report are require to be sent to the Government of India for laying on the table of the both houses of Parliament. It is also provided that on proposition for altering or amending the objects and purposes for which the council is established or for amalgamating the council is established or for amalgamating the council with any other Association or Society shall be taken, into consideration as contemplated by Section 12 of Act XXI of 1860, without the prior approval of the Government of India. In the bye- laws of the ICMR, it is provided that the Executive Committee of the Council shall have the power to invest and deal with funds and money of the Council in such manners they may deem fit and from time to vary and realise such investments, provided that the relevant instruction, guidelines, etc., issued by the Government of India in the matter are complied with. The bye-laws, governing the conditions of Service of the employees provide that in regard to all matters concerning the service conditions of the employees of the Council, the Fundamental and Supplementary Rules framed by the Government of India and such other rules and orders issued by the Government of India from time to time shall mutatis mutandis apply to the employees of the Council. Regular employees of the Headquarters office and in the Institutes/Centres of the council shall be entitled to pension and gratuity benefits according to the rules and order of the Government of India as amended from time to time. The rules of the Government of India governing the retirement of employees as amended from time to time, shall apply to the employees of the Council. The scales of pay for various posts under the Council shall be similar to those with corresponding duties under the Government of India and the Central Civil Service (Classification, Control and Appeal) Rules and the Central Civil Service (Conduct) Rules for the time being inforce and amended from time to time shall mutaits mutandis apply to the Council's employees. The Central Civil Services (Temporary Service) Rules, 1949 of the Government of India as amended from time to time were also made applicable to the temporary employees of the Council in the Headquarters and in its permanent institutes. The employees appointed on a contract basis under the ICMR are to be governed by the same rules as applicable to Contract Officers of the Central Government.
6. On the strength of the above provisions, Dr. R.G. Padia urged that the control of the Central Government throughout the various activities of the Council is not only deep but all pervading and consequently, the ICMR according to learned Counsel, is an instrumentality agency of the State and comes within the ambit of the expression 'State' used in Article 12 of the Constitution of India. In support of his contention, learned Counsel placed reliance on a number of authorities in which similar type of Councils, registered under the Societies Registration Act have been held to be the instrumentality of the State and, therefore, amenable to the provisions of Article 226 of the Constitution of India. A reference was made to P. Ramachandra Iyer v. Union of India, (1984) 2 SCC 141, in which it was held that Indian Council of Agriculture Research is a authority which is covered by the Expression 'other authorities' in Article 12. It was held that there is little doubt that ICAR is instrumentality or the agency of the State, and, therefore, a writ petition against the same is maintainable. In Dr. S.M. Ilyas and Ors. v. ICAR and Ors., AIR 1993 SC 384, on the basis of holding in P.K. Ramachandra's case (supra), it was reiterated that ICAR is an instrumentality/agency of the State. Learned Counsel further placed reliance on the decision of the Supreme Court in the case of B.S. Minhas v. Indian Statistical Institute and Ors., AIR 1987 SC 656, a Children Society was held to be an authority for the purpose of Article 12. In another case All India Sainik Schools Employees Association v. The Defence Minister-cum-Chairman, Board of Governors, Sainik School Society, New Delhi and Ors., AIR 1989 SC 88, a Sainik School Society was held to be a State. Central Inland Water Transport Corporation Limited, though a company, as defined under Section 617 of the Companies Act, was held to be an instrumentality or agency of the State, in Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, AIR 1963 SC 1571. Learned Counsel for the petitioners also derived support from the decision of this Court (Division Bench-Lucknow), in H.M. Abdul Khiyum v. Indian Institute of Management and Ors., 1991 (1) UPLBEC 370. The institute of management was held to be an agency of the State. According to Dr. Padia, since all the above institutes have been held to be amenable to the writ jurisdiction, being the State instrumentalities or agencies, there is on cogent ground or valid reason to give a different treatment to the present society i.e. ICER.
7. In response to the various submissions made by learned Counsel for the petitioners, Sri P.M. Gupta, on behalf of the respondents, with all vehemence at his command, contended that each one of the cases referred to above are distinguishable for the council ICMR as it does not fulfill the various tests as laid down by the Supreme Court in another set of cases to determine whether a society is an instrumentality or agency of the State or not. The submission of the learned Counsel for the respondents is not without force. In P.K. Ramachandra Iyer's case (supra), it was found that the Indian Council of Agricultural Research and its affiliate Indian Veterinary Research Institute were inseparable adjunct of Government of India having a outward from of being a society. It could be styled as a society from of being a society. It could be styled as a society set up by the State and, therefore, an instrumentality of the State. The various functions performed by the Council were earlier performed by the Government of India. These functions were made over by the Government to be discharged by ICAR. Similarly, in B.S. Minhas case (supra), Indian statistical Institute was governed by Statistical Institutes Act and its composition, money required maintenance of accounts were under the direct control and supervision of the Central Government. In AH India Sainik School's case (supra), the entire funding was made by the State Government. The main function of the Society was to run schools and prepare students for the purposes of feeding National Defence Academy. It was purposes of feeding National Defence Academy. It was observed that the defence of the country is one of the legal functions of the State and, therefore, the society was amenable to the jurisdiction of the Court. In Central Inland Water Transport Corporation Ltd. (supra), decided by the Supreme Court and H.M. Abdul Khiyam (supra), decided by Division Bench of this Court, it was on facts, found that the Central Government has . full control over the activities of the corporation or the institute. What is the actual position obtaining in relation to the present society, ICMR, is to be considered after having appraised the various rulings relied upon by learned Counsel for the respondents.
8. On behalf of respondents, a reference was made to stale decision in Sabhajit Tewari v. Union of India, AIR 1975 SC 1329, in which it was held that the Council for Scientific and Industrial Research (CSIR) which was sponsored and constituted by the Central Government, registered under the Societies Registration Act, cannot be held a State. In a subsequent case reported in Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, a Constitution Bench of the Supreme Court has distinguished this case though it was not specifically over-ruled but its ratio was diluted to a great extent and it was observed that the said case-Sabhajit Tewari was not an authority Registration Act for that reason alone would not be comprehended in the expression 'other authorities.' Reference was also made to this case Sabhajit Tewari (supra), in R.D. Shetty v. International Airport Authority of India, (1979) 3 SCC 489 : AIR 1979 SC 1628, in which Bhagwati, J. referring thereto, stated :-
"....this decision does not lay down any principle or test for the purpose determining when a corporation can be said to be an 'authority.' If at all any test can be gleaned from the decision, it is whether the corporation is 'really an agency of the Government".
The decision in Sabhajit Tewari's case (supra), stands totally watered down by subsequent decision of the Supreme Court; including, Tekraj Vasandi v. Union of India and Ors., (1988) 1 SCC 236. Therefore, reference to Sabhajit Tiwari's case (supra), is obviously otiose.
9. Virtually a new light was thrown and the matter was dealt with afresh in' R.D. Shetty's case (supra). The question before the Supreme Court was whether International Airport Authority of India was 'state' within the meaning of Article 12 so as to be subjected to enforcement of fundamental rights against it. Examining this aspect. Hon'ble Bhagwati, J. as he then was, spoke for the three Judges Bench, as follows :-
"Now it is obvious that the Government which represents the executive authority of the State, may act through the instrumentality or agency of' natural persons or it may employ the instrumentality or agency of juridical persons to carry out its functions. In the early days, when the Government had limited functions, it could operate effectively through natural persons constituting its Civil Service and they were found adequate to discharge governmental function, which were of traditional vintage. But as the tasks of the Government multiplied with the advent of the Welfare State, it began to be increasingly felt that the framework of Civil Service was not sufficient to handle the new tasks which were often of specialised and highly technical character. The inadequacy of the Civil Service to deal with these new problems came to be realised and it became necessary to forge a new instrumentality or administrative device for handling these" new problems. It was in these circumstances and with a view to supplying this administrative need that public corporation came into being as the third arm of the Government....."
The difficult question, therefore, is how to determine whether corporation is acting as an instrumentality or agency of the Government. Even Supreme Court did not find this question entirely free from difficulty. In R.D. Shetty's case (supra), Supreme Court further stated :-
"....But the public nature of the function, if impregnated with Government or fortified by some other additional factor, may render the corporation an instrumentality or agency of Government. Specifically, if a department of Government is transferred to a corporation, it would be a strong transferred to a corporation, it would be a strong factor supportive of this inference."
It will thus be seen that there are several factors, which may have to be considered in determining whether a "corporation is an agency or instrumentality of Government. We have referred to some of these factors and they may be summarised as under :
"Whether there is any financial assistance given by the State, and if so, what is the magnitude of such assistance; whether there is any other form of assistance given by the State, and I so, whether it is of the usual kind or it is extraordinary; whether there is any control of the management and policies of the corporation by the State and what is the nature and extend of such control; whether the corporation enjoys State conferred or State protected monopoly status and whether the functions carried out by the corporation are public functions closely related to Governmental functions. This particularisation of relevant factors is however not exhaustive and by its very nature it cannot be, because with increasing assumption of new tasks growing complexities of management and administration and the necessity of continuing adjustment in relations between the corporation and Government calling for flexibility, adaptability and innovative skills, it is not possible to make an exhaustive enumeration of the tests which would invariably and in all cases provide an unfailing answer to the question whether a corporation is Governmental instrumentality or agency."
The Supreme Court pointed out that the Corporations acting as instrumentality or agency of Government would obviously be subject to the same limitations in the field to constitutional or administrative law, as the Government itself, though in the eye of law they would be distinct and independent legal entitled. If the Government, acting through its officers is subject to certain constitutional and public law limitations, it must follow a fortiori that Government acting through the instrumentality or agency of corporations should equally be subject to the same limitations. Without being exhaustive, the Court discussed in detail the various factors relevant for determining whether a Body is an instrumentality or agency of the State. These factors, as they were finally summarised by Bhagwati, J, in subsequent decision of the Constitution Bench in Ajai Hasia's case (supra), are :-
1. One thing is clear that if the entire share capital of the corporation is held by Government, it would be a long may towards indicating to that the corporation is an instrumentality or agency of Government.
2. Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with Government character.
3. It may also be a relevant factor whether the corporation enjoys monopoly status which is State coferred or State protected.
4. Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality.
5. If the functions of the corporation are of public importance and closely related to Governmental functions, it would be a relevant factor in classifying, the corporation as an instrumentality or agency or Government.
6. "Specifically, if; a department of Government is transferred to a corporation it would be a strong factor supportive of this inference" of the corporation being an instrumentality or agency of Government.
These tests are not conclusive or clinching but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on .the expression 'other authorities', it must be realised that it should not be stretched so far as to bring in every autonomous body, which has some nexus with the Government within the sweep of the expression.
10. There Is yet another decision of the Supreme Court in Tekraj Vasandi's case (supra), in which the question was whether the Institute of Constitutional and Parliamentary Studies (ICPS), which was a society registered under the Societies Registration Act, was an instrumentality or agency of the State. After discussing the law laid down by the Supreme Court in the earlier decisions, it was held that since it was society, which came into existence as a voluntary organization for acquisition of appropriate democratic bias and spirit by the people's representatives, it is not an instrumentality of the State. In that case, the Speaker of the Lok Sabha became its first President and three Ministers, a former Chief Justice of India and a former Attorney General joined as its Vice Presidents. Some of the public officers were also associated in the administrative set .up of the ICPS. The registered office of the ICPS was initially located within Parliament House but later on it was shifted out. The Memorandum of Society permitted acceptance of gifts, donations and subscriptions. Though the annual contribution from the Government constitutes the main source of income of the society, yet some money came from some other sources also. Since Government money has been coming, the usual conditions attached to Government grants have been applied and enforced. On the these facts, it was held that ICPS is neither an agency nor an instrumentality of the State so as to come within the purview of other authorities in Article 12. It was observed that the Speaker and the Ministers who joined as Vice Presidents of the Society were there in their individual capacities and not a Ministers, though designations were indicated. The objects of the Society, it was further observed, were not related to governmental business but were" related to the aspects which were expected to equip Members of Parliament and the State Legislature with the requisite knowledge and experience for better functioning. The final view of the Court was that a society, registered under the societies Registration Act may be treated as 'State' if either the Governmental business is undertaken by the society or what is expected to be the public obligation of the State is undertaken to be performed as a part of the society's. Such was not the position there. The two cases of B.S. Minhas (supra) and P.K. Ramachandra Iyer (supra), were distinguished.
11. There is yet another decision of the Supreme Court which virtually clinches the issue. It is Chandra Mohan Khanna v. National Council of Educational Research and Training and Ors., (1991) 4 SCC 758, in which the question was whether the National Council of Educational Research and Training (NCERT) is 'State' and defined under Article 12 of the Constitution The NCERT was a society registered under the societies Registration Act. Its object was to assist and advise the Ministry of Education and Social Welfare in the implementation of its policies and major programmes in the field of education particularly school education. NCERT undertakes several kinds of programmes and activities which include coordination or research extension services and training, dissemination of improved educational techniques and practices in schools collaboration in educational programmes, distribution of ideas and information, preparation and publication of books, materials, periodicals and other literature and allied activities. It was held that these activities were not wholly related to Governmental functions. The funds of NCERT consisted of (i) grants made by the Government, (ii) contribution from other sources, (iii) income from its own assets. It was free to apply its income and property towards the promotion of its objectives and implementation of the programmes. The Government control is confined only to the proper utilisation of the grant. In these circumstances, it was held that NCERT is the largely an autonomous body and does not fall under the definition of 'State' under Article 12 of the Constitution. Hon'ble Jagannatha Shetty, J. observed as follows :
"Article 13 should not be stretched so as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression 'State'. A wide enlargement of the meaning must be tempered by a wise limitation. It must not be lost sight of that in the modern concept of Welfare State, independent institution. Corporation and agency are generally subject of State control. The State control does not render such bodies as 'State' under Article 12. The State Control, however, vast and pervasive is not determinative. The financial contribution by the State also not conclusive. The combination of State aid coupled with an unusual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the State may largely point out that the body is 'State'. If the Government operates behind a corporate veil, carrying out governmental activity and governmental functions of vital public importance, there may be little vital public importance, there may be little difficulty in identifying the body as 'State' within the meaning of Article 12 of the Constitution."
12. From the series of the decisions of Supreme Court, which are in one straight line, it follows that on consideration of relevant factors, it has found that the corporation as an instrumentality or agency of a Government would be an 'authority' and, therefore, 'State' within the meaning of Article 12. The various tests which have been laid down, have been held to be not concessive or clinching. Analysing the facts of the present case in hand, I find that they are much nearer to the two decisions of the Supreme Court in Tekraj Vasandhi and Cnander Mohan Khanna (supra), in which it has been held that the Institute of Constitutional and Parliamentary Studies (1CPS) and the National Council of Educational Research and Training, though autonomous bodies, are not the instrumentality or agencies of the State and, therefore, do not come within th" purview of the provisions of Article 12. The 1CMR has been authorised to issue appeals and applications for money and funds in furtherance of the said objects and to accept gifts, donations and subscriptions of cash securities and of any property either movable or immovable. It is not a case where substantial funds form the Government of India have been released in favour of the society. The accounts of the society are separately maintained and are subject to society are separately maintained and are subject to audit in the same way as the affairs of the societies receiving Government grants are to be audited. The Government thus imposes certain conditions and restrictions when grants are made. No exception has been made in respect of the society and the mere fact that certain been place is not a determinative aspect. My view of the matter is that in the functioning of the Society, there is no deep or pervasive control of the Central Government. The Society has the power to acquire and hold properties and to sell, lease, exchange them without reference to the Government. It can amend its bye laws without any prior approval of the Government. The various authorities occupying official posts have been nominated or made members, of the Council (Society) in their personal capacities. The seat of the Headquarters of the Council are at Delhi not because Central Government has its seat at Delhi, but for the purpose of convenience. The eloquent features in the instant case are indicative of the fact that ICMR which is a registered society is neither an instrumentality nor an agency of the State and consequently, it does not come within the ambit of Article 12 of the Constitution of India.
13. The definition of the 'State' as contained in Article 12, however, is only for the purpose of application of the provisions contained in part III (Fundamental Rights) of the Constitution. Hence even though a body of persons may not constitute 'State' within the definition of Article 12, a writ under Article 226 may lie against it on non-constitutional ground or on ground of contravention of some provision of the Constitution outside Part HI, e.g. where such body has a public duty to perform or where its acts are supported by the State or public officials. The law relating to mandamus has made the most spectacular advance. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. Under Article 226 writs can be issued to "any person or authority". It can be issued for the enforcement of any of the fundamental rights or for any other purpose. The term, 'authority' used in Article 226 in the context, has of necessity, to receive a liberal meaning unlike the term in Article 12. This aspect of the matter came to be considered by the Supreme Court in Sri Anandi Mukta Sadguru Sri Muktaji Vandasji Swami Suvarna Janyati Mohotsav Smark Trust and Ors. v. V.R. Rudani and Ors., AIR 1989 SC 1607, in which the view taken by the Supreme Court was that the words any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentality of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No. matter by what means the duty is imposed. If a positive obligation exists mandamus cannot he denied, ft may be pointed out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226. Reliance was also placed on the observations made -in the deadlier decision Praga Tools Corporation v. Sri C.A. Imanual, (1969) 3 SCR 773 : AIR 1969 SC 1306, which run as follows :-
"It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted ^or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would so lie against a company constituted by a statute for the purpose of fulfilling public responsibilities. [See Halsbury's Laws of England (3rd Ed. Vol. II P. 52 and onwards)]."
14. The matter came to be considered by a Division Bench of this Court in the case of Sushil Kumar Agarwal v. Titanere Components Ltd. and Ors., (1996) 72 FLR 513, in which it was observed that as regards the person or authority against whom the writ can be issued, Supreme Court held that such person or. authority need not be statutory authority or the instrumentality of the State and any person or authority performing the public duty is amenable writ jurisdiction of the High Court. The decision of Anandi Mukta Sadguru (supra), was also considered by a Full Bench of Andhra Pradesh High Court in Sri Konaseena Cooperative Central Bank Ltd. v. N. Seetharama Raju, AIR 1990 A.P. 171, in which it was conserved that all that was stated by the Supreme Court was that such public duty need not necessarily be imposed by a statute; it can be imposed by common law, custom or even a statutory contract. In another Division Bench decision in this Court in Raghunath Dwivedi v. Vice Chancellor, Allahabad University and Ors., reported in (1996) 2 UPLBEC 1295 : 1996 All C.J. 337, the Students, Union of Allahabad University was held to be a private body. It was observed that it is an integral part of the University and being an instrumentality of the University itself, the writ petition against the University and its students union is maintainable.
15. In the light of the above authorities, therefore, the present writ petition is maintainable under Article 226 of the Constitution of India and a mandamus shall issue against the respondents if on facts it is found that injustice has been done of the petitioners.
Now it is the time to consider the question whether the petitioners hold transferable post and if so whether their transfers from MRC Shahjahanpur to MRC Madras are actuated by malice or ill-will entertained by the respondents on account of formation of Employees Union in the month of May, 1996. Learned Counsel for the petitioners painstakingly pointed out that in an earlier industrial dispute raised by the petitioner No. 1-H.V. Agarwal while he was posted at Port Blair, he had claimed special duty allowance on the ground that he incurs All India Transfer liability, and the reply of the respondents on the point was that the petitioner No. 1 was not subject to All India Transfer liability and this averment in the Industrial Dispute Case No. 4 of 1988 fortifies the fact that petitioner No. 1 does not hold transferable post. Annexure 7 to the writ petition is the decision of the Labour Court. Claim of special duty allowance was denied and it was observed that a liability to serve in any part of India is not a synonym for All India Transfer liability. The petitioner No. 1 himself has asserted in the said industrial dispute that he is holding transferable post. As a matter of fact, after his initial posting he was transferred to Port Blair and it was he who had claimed transfer form Port Blair to any station in the main land, in respect of which he had filed an industrial dispute case No. 6 of 1992 the decision of which has been notified in the notification of Port Blair dated 4.10.1993, Annexure 8 to the writ petition. It was an ex parte award dated 7.9.1993 and since the respondent did not have breathing time and in order to avoidance adverse legal consequence, they implemented the same by transferring the petitioner No. 1 form Port Blair to MRC Shahjahanpur.
16. Learned Counsel for the respondents urged that the provisions of Industrial Disputes Act (Act No. XIV of 1947) did not apply to the respondent-Society-ICMR in view of the definition of the expression 'industry' as defined in clause (J) of Section 2 of the Act and consequently, since the petitioner No. 1 was not workman he did not enjoy even a veiled protection of the labour laws and, therefore, the decision of Labour Court Port laws and, therefore, the decision of the Labour Court Port Blair relied upon by learned Counsels for the petitioners is of no avail. This submission of the learned Counsel for the respondents was repelled by Dr Padia primarily on the ground that the amended previsions of Amending Act No. 41 of 1982, particularly with reference the definition of the expression 'industry' contained in clause (J) of Section 2, have not come into force and only the provisions of Sections 2(a), (b), (d) to (k), 3 to 12 and 23 have come into force on 21.8.1984. The controversy with regard to the fact whether ICMR is an industry and its employees are workmen' or not is not germane to the decision of this case and, therefore, in order to avoid prolixity, this point is left as such. The fact, however, remains that even in the disputes raised before the Labour Court, petitioner No. 1 has asserted in unequivocal term a that he holds a transferable post. Now petitioner No. 1 cannot be allowed to back cut merely on, the basis of the fact that the respondents have, an altogether different context asserted that the petition is not subject to 'AH India Transfer liability'. Moreover, the decision of the Labour Court is not judgment in rem and is of no help to the other petitioners who were not parties to the said dispute, purpose for which the dispute was raised by the petitioner No. 1 before the Labour Court stands exhausted and what ever has been started, considered and decided in the decisions of the Labour Courts are of an relevance for the decision in the present case.
17. Undoubtedly, all the petitioners are holding the posts, which are transferable in nature. The very nature of the establishment makes it clear that the employees were transferable from one place to another. The MRC with head quarters at Delhi was formed under the auspices of the ICMR for the research on the biological birth of parasites of malaria, its control and eradication in India. Thereafter, various research centres were created at different places in India where malaria was wide spread with a stipulation that when the work would be over, then that MRC office shall be shifted to other place where on survey malaria menace would be found predominant. In most of the cases, therefore, the posts were kept temporary and transferable throughout India, especially of the employees belonging to class HI and IV cadres, so that if they do not choose to shift to new station of MRC, they may have the option to resign and if they insist to be retained and not transferred, then their services may be terminated. It is, therefore, obvious that the very nature of work requires the services of the employees to be transferred. The respondents have brought on record a number of transfer orders of different categories of staff by felling Annexures C.A. 5 and C.A. 6 which would make it clear that the transfer from one MRC to another is a normal feature. Not only this, the appointment letters issued in favour of the petitioners clearly stipulate that the employees are liable to serve in any part of India. As a sample, a copy of the appointment letter of Om Prakash Lal-petitioner No. 2 has been brought on record as Annexure C.A. 1, in clause (x) of the conditions of service, it has been specifically provided that he/ she is liable to serve any part of India. It is, therefore, well established that the petitioner are holding transferable posts and are liable to be transferred from one place to another keeping in view the exigencies of service. The main plank on which the petitioners have founded their case that they do not hold transferable posts, stands shatterred.
18. Learned Counsel for the petitioners pointed out that employer has not an absolute right to transfer the employees in a manner which may be detrimental to the interest of the employees and that, as has been held by a Division Bench of this Court in S. C. Duggal v. Department of Personnel, Personnel Policy Section Central Office, Union Bank of India, Bombay and Ors., reported in 1996 AWC 945, the employer is bound to consider even the grievance of personal nature of the employees while deciding their representations. It was urged that in the instant case, the difficulties of the petitioners who are class III and IV employees, have not been taken into consideration by the respondents and consequently, the order dated 24.7.1996 by which the representations of the petitioners have been rejected by Director General, ICMR, is bad in law and amounts to treating the employees in as unfair and unjust manner. A reference was also made to the observations of the Supreme Court in B. Vardha Rao v. State of Karnataka and Ors., AIR 1987 SC 1955, in which it was observed the one cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a Government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship, complications problems and demoralisation. It therefore, follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. According to learned counsel for the petitioners, the petitioners who are employees of class HI and IV cadre, should be given due consideration while making an order of transfer as the petty employees cannot afford to make their both ends meet at a place which is at a considerable distance from their home by the learned Counsel for the petitioners but the fact remains that in the instant case, it was on account of overstuffing of the MRC, Shahjahanpur that the petitioners had to be shifted. If the petitioners were not shifted by transfer to another centre, at Madras they would have, of necessity, faced retrenchment/termination of their services. The fact that there was overstuffing at the field station at Shahjahanpur is evident from the letter written by the petitioner No. 1 himself to the Officer Incharge, MRC, Shahjahanpur on 11.12.1995, which is Annexure C.A. 2. He has recommended that the services of the four employees mentions in the letter be utilised elsewhere as per needs of requirement. A meeting was consequently held at Delhi on 16.3.1996 in which it was noted that the stall posted at Shahjahanpur is surplus and a decision was taken that 50 per cent staff of the field station may be utilised more effectively either at the headquarters or at any other field station because of phasing out activities of Bio-environmental programme in the area. The decision of the meeting is contained in Annexure C.A. 4 on 30.5.1996, vide Annexure C.A. 3 the Officer Incharge of field station Madras had written to the Director, MRC, Delhi about the requirement of the additional staff at Madras centre, according to him there was a very good respond from the public for the mosquitoes proofing of breeding sources. However, he felt handicapped in the matter on account of shortage of field staff. According to him, though the work has of urgent nature, it was not to get momentum due to the shortage of staff. He had requested the Director to provide them additional field as early as possible.
19. It was on account of overstaffing at Shahjahanpur field petitioners were transferred from Shahjahanpur to Madras. Learned Counsel for the petitioners made a passing reference to letter dated 17.6.1996 addressed by Dr. G.D.P. Dutt, research officer through Dr. R.N. Prasad who was Officer Incharge, MRC, Shahjahanpur. In this letter, it is mentioned that the petitioners be allowed to continue at Shahjahanpur. In this connection, a reference may be made to the contents of para 14 of the counter affidavit. After the formation of the Employees' union and passing of the impugned transfer orders, Dr. R.N. Prasad was humiliated, insulted and threatened with dire consequences to his life and his family members. Dr. Prasad could not put up with the maltreatment and humiliation of his own employees and thought it proper it quit the post and accordingly resigned. A letter dated 19.6.1996, which is Annexure G.A. 7 addressed by Dr. R.N. Prasad to the Director, MRC, Delhi is self speaking. Dr. G.D.P. Dutt was made to write the letter dated 17.6.1996 on which reliance has been placed by the petitioners under threat and coercion. Even Dr. Dutt was not spared and he was also maltreated and threatened. In the contenxt of the fact that there was overstaffing at Shahjahanpur centre and a decision to shift 5% of the staff had already been taken in the month of March, 1996, the question of recommending the retention of the petitioners at Shahjahanpur should not have arisen in the normal course. It was on account of hooliganism rowdyism, and vandalism of the employees, including the employees who were transferred and retrenched that on ugly situation resulting in total chaos And disorder came into existence.
20. The wild allegation of the petitioners that they have been transferred from Shahjahanpur to Madras on account of ill-will entertained by the higher authorities due to the formation of the Employees' union is not based on firm foundation of facts. As a matter of fact, the decision to transfer 50 of the surplus staff from field station Shahjahanpur was taken in March, 1996 in the meeting, minutes of which are contained in Annexure C.A. 4, by that date, the Employees union had not come in existence.
Not only this, even in the year 1995, it was very much in the air, about which the petitioners were aware that some members of the staff at Shahjahanpur shall have to be shifted to another centre as they have become surplus. In the wake of these facts, no mala fide can be inferred and the insinuations and vague allegations made by the petitioners have to be ignored as they remain unestablished. An order of transfer, which is in public interest, which had occurred in the organization cannot be said to be tainted.
21. The law of transfer has been well settled by Apex Court in a catena of decisions. A person holding a transferable post cannot claim any vested right to word at a particular place as the transfer order does not affect any of his legal rights and Court cannot interfere with a -transfer order passed in public interest of administrative exigency. The Transfer which is a normal incident of service is not to be clearly arbitrary or vitiated by malafide or infraction of any professed norm of principle governing the transfer. In AIR 1991 SC .532, Mrs. Shilpi Bose and Ors. v. State of Bihar and Ors., it was held that the Courts should not interfere with the transfer orders which are made in public interest and for administrative reasons unless the transfer orders are made in evolution of any mandatory statutory rule of on the ground of mala fide. A Government Servant holding a transferable post has no right to resist it, as he is liable to be transferred from one place to other. It was further observed that even if a transfer order is passed in violation of executive instructions of orders, the Courts ordinarily should not interfere with order, instead the affected party should approach the higher authorities in the department. In another case reported in J.T. 1993 (3) SC 678, Union of India and Ors. v. S.I. Abbas, it was held that who should be transferred and where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafide or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transferal the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines, however, do not confer upon the Government employees a legally enforceable right. A reference may also profitably be made to (996) 1 UPLBEC 319, Abani Kantal Roy v. State of Orissa; 1994 (6) SCC 58, N.K. Singh v. Union of India; AIR 1989 SC 1433, Gujrat Electricity Board v. Atmaram. The employer is the best judge how to distribute and utilise services of its employees. It is for the time a public servant is transferred from one place to another.
22. In the instant case, whatever may be the relative hardships of the petitioner, they could not be mitigated for one simple reason that to, begin with, at least 50 per cent of the staff of MRC Shahjahanpur was Jo be shifted and in course of time, no sooner the field station Shahjahanpur out lived its utility, the entire staff is likely to be shifted.
23. There is another striking feature in this case, the petitioners have already been relived from Shahjahanpur centre on 24.6.1996, on their request. Traveling allowance/D.A. Advance, which is payable to them on transfer, has been sanctioned and they have received the said advance for their family members. Annexures C.A. 8 to C.A. 15 to the Supplementary Counter Affidavit are eloquent to prove that the petitioners have accepted the transfer orders and a wasteful exercise and legal battle has unnecessarily been continued.
24. For the reasons stated above, the petitioners have no case, whatsoever, to challenge their transfer orders of the order whereby their representations have been rejected. The petition turns out to be devoid of any merits or substance. It is accordingly dismissed. Costs easy.