Delhi High Court
K.K. Saksena vs International Commission On ... on 25 April, 2011
Equivalent citations: AIRONLINE 2011 DEL 10
Author: Dipak Misra
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: February 7, 2011
Judgment Delivered on: April 25, 2011
+ LPA No. 554 Of 2006
K.K. Saksena ..... Appellant
Through: Mr. Piyush Sharma, Advocate.
Versus
International Commission on
Irrigation & Drainage & Ors. ..... Respondents
Through: Mr. Bharat Sangal, Ms. Vernika Tomar
and Ms. Alka Singh, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether reporters of the local papers be allowed to see the judgment? YES
2. To be referred to the Reporter or not? YES
3 Whether the judgment should be reported in the Digest? YES
DIPAK MISRA, CJ
In this intra-Court appeal which is preferred against the order dated
17.1.2006 passed by the learned Single Judge in CWP No.1846/2006, the
seminal issue whether the respondent - International Commission of
Irrigation and Drainage (hereinafter referred to as „ICID‟) is a „State‟ under
LPA 554/2006 page 1 of 32
Article 12 of the Constitution of India and further if the said organization
is not treated as a State and other authority its actions will be amenable for
judicial review under Article 226 of the Constitution of India on the
foundation that it performs public duty, emerges for consideration.
2. The facts which are requisite to be stated are that the appellant was
appointed on 20.1.1997 as Secretary, ICID. On 8.1.1999, a letter was issued
by the Secretary General relating to the role and responsibility in respect of
the post. Thereafter, on 11.8.1999, the Secretary General sent a fax message
from Stockholm directing him to look after day to day work during his
absence for the conference at Granada and shortly after, on 15.8.1999, a
communication was issued by the Secretary General terminating the
services of the appellant. On 19.8.1999, the appellant claimed three
months‟ salary as per the rules as also payment for provident fund. Later
on, he requested for revocation of the order of termination and when no
response was shown, a reminder was sent on 2.9.1999 and on 16.10.1999, a
representation was made to the Secretary General to review the
termination order and reinstate him but the same fell on deaf ears.
LPA 554/2006 page 2 of 32
3. Being dissatisfied with the said action, the appellant invoked the
writ jurisdiction of this Court contending, inter alia, that the action of the
ICID is arbitrary and unreasonable being violative of Article 14 of the
Constitution of India. It was urged that ICID is a State and other authority
within the meaning of the expression under Article 12 of the Constitution
of India and further it is involved in performing public duty. It was
averred that the ICID is under the Government control and the criteria and
test set out for determining whether a corporation or society is a State or
other authority under Article 12 of the Constitution of India is satisfied
inasmuch as the ICID was established by the Central Government by
giving a grant of Rs.15,000 in 1950; that there are instances when the
Government officers had come on deputation to the society; that the
Central Government has been paying the subscription for administrative
and other functions of ICID and, hence, the financial control rests with the
Government; that the staffing pattern of the ICID is in accord with the line
of the Government; that the ICID has monopoly status since it is the only
society established by the Government of India to bring together
information on irrigation from India and outside; that the Government
provides to it irrigation related information generated in the country and
LPA 554/2006 page 3 of 32
uses public cost and also uses information pulled by it for Government
irrigation works; and that the President or Vice-President in-charge of the
central office of the society is a Government officer and the officers of the
Central Government are ex-officio Secretary General though they do not
draw salary from ICID. It was also contended that the term „other
authority‟ used in Article 226 of the Constitution is of much wider
connotation and even if it is held that the ICID is not a State within the
purview of Article 12 of the Constitution still then its actions would be
amenable for judicial review under Article 226 of the Constitution of India
as it discharges public function or public duty of great magnitude.
4. We may note with profit that apart from making these averments, it
was also pleaded in the writ petition how the order of termination was
absolutely illegal as the appellant could not have been removed from
service without holding an enquiry and further, the said order of
termination was violative of the Rules, namely, ICID Employees Conduct
Rules, 1967 controlling the service conditions of the appellant. It was also
put forth that there was no reason to dispense with the enquiry as
stipulated under Rule 33(b) of the Rules.
LPA 554/2006 page 4 of 32
5. Resisting the aforesaid stand and stance put forth in the writ
petition, it was contended by the respondent that the ICID is neither a
State under Article 12 of the Constitution of India nor is it amenable to writ
jurisdiction under Article 226 of the Constitution. It was put forth that the
said society does not fulfill the requisite tests which would bring it within
the purview of Article 12 of the Constitution inasmuch as the management
of the affairs of the society is vested in an International Executive Council
(IEC) consisting of office bearers and one duly appointed representative
from each National Committee; that the office bearers of the ICID consist
of one President, 9 Vice-Presidents and one Secretary General and all the
office bearers except the Secretary General, who is the full time office
bearer appointed by IEC, are elected by majority of votes of the members
of the said Council; that the representatives of the World Bank, FAO,
United Nations Educational, Scientific and Cultural Organizations
(UNESCO) and International Irrigation Management Institute (IIMI),
amongst others, have a place in the International Executive Council of the
ICID as permanent observers; that the representatives of the World Bank,
FAO, UNESCO and other related UN agencies also participate in the work
and various activities of the ICID; that the ICID comprises about 30 staff
LPA 554/2006 page 5 of 32
members in all and works under the general supervision of the Council
and under the immediate direction of the President; that clause 7.3 of the
Constitution of the ICID empowers the Secretary General to frame such
rules and procedure as he considers necessary for governing the staff and
for the proper functioning of the central office in consultation with the staff
committee; that the following of a staffing pattern by ICID in the line of the
Central Government does not bring the society under the control of the
State; that the ICID is an independently funded organization whose
functions are financed by subscriptions from several countries; and that
deputation of some officers from the Government at certain times does not
give it the character of a State.
6. It was also contended by the respondent ICID that it does not
perform any public duty which would make it amenable to writ
jurisdiction under Article 226 of the Constitution since its objects stimulate
and promote the development and the application of the arts, sciences and
techniques of engineering, agriculture, economics, ecology and social
sciences in managing water and land resources for irrigation, drainage,
flood control and river training and for research in a more comprehensive
manner adopting upto date techniques and its activities cannot be stated to
LPA 554/2006 page 6 of 32
be intrinsically public in nature or closely related to those performable by
the State in its sovereign capacity.
7. It is also apt to note here that the respondent justified the order of
termination on the ground that the functioning of the appellant was not
satisfactory and, therefore, his services were dispensed with as per the
rules and, hence, no enquiry was necessary. That apart, various other
grounds were urged to justify the order of termination.
8. The learned Single Judge, analyzing the facts and taking note of the
authorities cited at the Bar, came to hold that the ICID is not a State or
other authority under Article 12 of the Constitution of India and its
functions are not such which will bring the same within the ambit of
public duty as a consequence of which it would be amenable under Article
226 of the Constitution of India. Being of this view, he declined to address
himself with regard to the justifiability and sustainability of the order of
termination and observed that it would be open to the appellant to take
recourse to appropriate remedy as advised in law.
9. First, we shall advert to the issue whether the respondent-society is a
State under Article 12 of the Constitution of India. Before delineating the
LPA 554/2006 page 7 of 32
facts brought on record for the purpose of establishing that it is a State
within the purview of Article 12 of the Constitution, we think it
appropriate to refer to few authorities which deal with the test and the
criteria for determination of the status of any organization or
establishment or a society as a State under Article 12 of the Constitution.
10. The Constitution Bench in Ajay Hasia and others v. Khalid Mujib
Sehravardi and others, (1981) 1 SCC 722 referred to the decision in
Ramana Dayaram Shetty v. International Airport Authority of India,
(1979) 3 SCC 489 and thereafter summarized the relevant tests gathered
from the decision of the International Airport Authority case as follows:
"(1) One thing is clear that if the entire share capital of the
corporation is held by Government it would go a long way
towards indicating that the corporation is an instrumentality
or agency of Government. (SCC p.507, para 14)
(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 governmental character. (SCC p. 508, para 15)
(3) It may also be a relevant factor...whether the corporation
enjoys monopoly status which is State conferred or State
protected. (SCC p. 508, para 15)
(4) Existence of deep and pervasive State control may afford
an indication that the corporation is a State agency or
instrumentality. (SCC p. 508, para 15)
LPA 554/2006 page 8 of 32
(5) If the functions of the corporation of public importance
and closely related to governmental functions, it would be a
relevant factor in classifying the corporation as an
instrumentality or agency of Government. (SCC p. 509, para
16)
(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. (SCC p. 510, para 18)"
Thereafter, the Constitution Bench opined thus:
"11. We may point out that it is immaterial for this purpose
whether the corporation is created by a statute or under a
statute. The test is whether it is an instrumentality or agency
of the government and not as to how it is created. The inquiry
has to be not as to how the juristic person is born but why it
has been brought into existence. The corporation may be a
statutory corporation created by a statute or it may be a
Government company or a company formed under the
Companies Act, 1956 or it may be a society registered under
the Societies Registration Act, 1860 or any other similar
statute. Whatever be its genetical origin, it would be an
"authority" within the meaning of Article 12 if it is an
instrumentality or agency of the government and that would
have to be decided on a proper assessment of the facts in the
light of the relevant factors. The concept of instrumentality or
agency of the government is not limited to a corporation
created by a statute but is equally applicable to a company or
society and in a given case it would have to be decided, on a
consideration of the relevant factors, whether the company or
society is an instrumentality or agency of the government so
as to come within the meaning of the expression "authority"
in Article 12."
LPA 554/2006 page 9 of 32
11. In Pradeep Kumar Biswas & Ors. v. Indian Institute of Chemical
Biology & Ors., (2002) 5 SCC 111, the question arose whether the Council
of Scientific and Industrial Research (CSIR) is a State under Article 12 of
the Constitution of India. The majority, after referring to the decisions in
Ajay Hasia (supra), Ramana Dayaram Shetty (supra), P.K. Ramachandra
Iyer and Others v. Union of India and Others, 1984 (2) SCC 141, B.S.
Minhas v. Indian Statistical Institute & Ors., 1984 (1) SCR 395 and
Mysore Paper Mills Ltd. v. The Mysore Paper Mills Officers Association,
JT 2002 (1) 61, expressed the view as follows:
"40. The picture that ultimately emerges is that the tests
formulated in Ajay Hasia are not a rigid set of principles so
that if a body falls within any one of them it must, ex
hypothesi, be considered to be a State within the meaning of
Article 12. The question in each case would be - whether in
the light of the cumulative facts as established, the body is
financially, functionally and administratively dominated by or
under the control of the Government. Such control must be
particular to the body in question and must be pervasive. If
this is found then the body is a State within Article 12. On the
other hand, when the control is merely regulatory whether
under statute or otherwise, it would not serve to make the
body a State."
LPA 554/2006 page 10 of 32
After laying down the aforesaid principle, their Lordships dealt with
the formation of CSIR, objects and functions, management and control,
financial aid and eventually came to hold that CSIR is a State.
12. In General Manager, Kisan Sahkari Chini Mills Ltd., Sultanpur,
U.P. v. Satrughan Nishad and others, (2003) 8 SCC 639, the Apex Court
was considering whether the appellant was an "other authority" and
hence a State under Article 12 of the Constitution of India. Their
Lordships referred to the decisions in Ajay Hasia (supra), Pradeep Kumar
Biswas (supra), Chander Mohan Khanna v. NCERT, (1991) 4 SCC 578 and
came to hold as under:
"8. From the decisions referred to above, it would be clear that
the form in which the body is constituted, namely, whether it
is a society or a co-operative society or a company, is not
decisive. The real status of the body with respect to the control
of Government would have to be looked into. The various
tests, as indicated above, would have to be applied and
considered cumulatively. There can be no hard-and-fast
formula and in different facts/situations, different factors may
be found to be overwhelming and indicating that the body is
an authority under Article 12 of the Constitution......"
13. In M/s. Zee Telefilms Ltd. and another v. Union of India and others,
(2005) 4 SCC 649, the Constitution Bench was dealing with the issue
whether the Board of Control for Cricket in India is a State within the
LPA 554/2006 page 11 of 32
meaning of Article 12 of the Constitution of India. Their Lordships
referred to Article 12 of the Constitution and traced its origin and scope in
the frame of the Constitution and referred to the decisions in Sukhdev
Singh v. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421, Ramana
Dayaram Shetty (supra), Ajay Hasia (supra) and para 40 of the decision in
Pradeep Kumar Biswas (supra) and laid down the principle as under:
"22. Above is the ratio decidendi laid down by a seven-Judge
Bench of this Court which is binding on this Bench. The facts
of the case in hand will have to be tested on the touchstone of
the parameters laid down in Pradeep Kumar Biswas case. Before
doing so it would be worthwhile once again to recapitulate
what are the guidelines laid down in Pradeep Kumar Biswas
case for a body to be a State under Article 12. They are: -
(1) Principles laid down in Ajay Hasia are not a rigid set
of principles so that if a body falls within any one of
them it must ex hypothesi, be considered to be a State
within the meaning of Article 12.
(2) The question in each case will have to be considered
on the basis of facts available as to whether in the light
of the cumulative facts as established, the body is
financially, functionally, administratively dominated,
by or under the control of the Government.
(3) Such control must be particular to the body in
question and must be pervasive.
(4) Mere regulatory control whether under statute or
otherwise would not serve to make a body a State."
LPA 554/2006 page 12 of 32
After laying down the principle, the majority applied the test and
came to hold as follows:
"30. However, it is true that the Union of India has been
exercising certain control over the activities of the Board in
regard to organising cricket matches and travel of the Indian
team abroad as also granting of permission to allow the
foreign teams to come to India. But this control over the
activities of the Board cannot be construed as an
administrative control. At best this is purely regulatory in
nature and the same according to this Court in Pradeep Kumar
Biswas case is not a factor indicating a pervasive State control
of the Board."
14. The present factual matrix has to be tested on the anvil of the
aforesaid enunciation of law. The preamble which occurs in Article 1 of
the Constitution of ICID reads as follows: -
"1.1. The International Commission on Irrigation and
Drainage is established as a Scientific, Technical, Professional,
and Voluntary Not-for-profit Non-Governmental
International Organization (NGO-ONG), dedicated, inter alia,
to enhance the world-wide supply of food and fibre for all
people by improving water and land management, and the
productivity of irrigated and drained lands through the
appropriate management of water, environment and the
application of irrigation, drainage and flood control
techniques.
1.2. In the text of this Constitution, the International
Commission on Irrigation and Drainage is referred to as the
Commission or as ICID (CIID in the French version) and
among international authorities, as CID (CIID)."
LPA 554/2006 page 13 of 32
15. Article 3 deals with Membership. The basis of membership is as
follows: -
"3.1. ICID consists of National Committees of Participating
Countries, on the basis of one National Committee for each
such country. Where no National Committee exists, officers of
government or of an institution or institutions effectively
representing interests within the scope of the objects of the
Commission may participate in ICID activities. In such cases
one officer shall be designated as Representative.
3.2. Any geographical area independently administered by
a sovereign government and having interest in the activities of
the Commission shall be eligible to participate in the activities
of the Commission. Accordingly, in exceptional cases, the
Council may, having regard to the coexistence of separate
sovereign geographical areas or countries, accept the
representation of the sovereign parts of a country by separate
National Committees. In the case of a Federal System of
government, or similar set-up, only one National Committee
shall be recognized for membership in ICID."
16. Article 4 deals with the composition of the national committees and
its responsibility.
17. Article 5 deals with the International Executive Council. Clause 5.1
of Article 5 reads as follows: -
"5.1. The International Executive Council, hereinafter called
the Council, the Executive Council or the IEC is vested with
the management of the affairs of the International
Commission on Irrigation and Drainage."
LPA 554/2006 page 14 of 32
The role ascribed to it is as under: -
"5.2. The Council shall consider all matters of policy which
may be initiated or sponsored by any member National
Committee or Office-Bearer or by the Management Board and
may itself initiate and determine or otherwise advise and lay
down any matter of policy. The Central Office of ICID shall
act as an instrument for carrying into effect all decisions taken
by the Council. The Council shall also consider what action, if
any, need be taken on the recommendations or conclusions of
the studies, experiments or discussions organized by the
Commission. All matters affecting the executive or
administrative functions and financial liabilities of ICID must
come up before the Council and its decision shall be
conclusive."
18. Article 6 provides for the office-bearers. Clause 6.2 deals with the
election of President and Vice-Presidents. Clause 6.3.1 provides for the
appointment of Secretary General. It is profitable to reproduce clause
6.3.1-
"6.3.1. Nomination: The Secretary-General shall be
nominated by the President, acting as Chairperson of the
Management Board, and appointed by Council."
19. Article 7 deals with Management. Clause 7.1 deals with
Management Board. It is as follows: -
"7.1. The Council shall be assisted in the management of the
affairs of the Commission by a Management Board composed
LPA 554/2006 page 15 of 32
of the President of ICID, who shall be the Chairperson,
immediate past President of ICID (one year only),
Chairpersons of the Permanent Technical Activities
Committee, Permanent Finance Committee and Permanent
Committee on Strategy Planning and Organizational Affairs
and the Secretary-General."
Clause 7.2 of Article 7 provides that the Central Officer shall be
located in New Delhi, India and shall be maintained under the general
provision of the Council and under the immediate direction of the
President. Clause 7.3.1 deals with financial management.
20. Article 10 provides for dues, subscriptions and funds. It is apposite
to reproduce clauses 10.1, 10.2 and 10.3, which read as follows: -
"Annual Subscriptions
10.1 In order to defray the cost of the activities of the
Commission or for special purposes, the National Committees
or representative organizations of participating countries shall
regularly pay to the order of the Secretary-General annual
subscriptions (in as near the beginning of each calendar year
as may be possible) on the basis pre-determined by the
Council and taking into consideration, inter alia, the interest
and the capacity to pay of the participating country. National
Committees or representative organizations of participating
countries shall also pay such other special subscriptions as
may be determined by the Council.
LPA 554/2006 page 16 of 32
Registration Fees
10.2 For each Congress, regional conference, technical
session, international workshop or such other international
activity, the Council may, in consultation with the National
Committee of the host country, fix individual registration fees,
or fees for participating organizations. In addition, the portion
of the proceeds that should accrue to the budget of the Central
Office of the Commission from such events shall also be
determined by the Council.
Funds
10.3 The Central Office shall be authorized to receive and to
handle as funds of the Commission, any subscription,
subvention or gift that may be made in the general interests of
the objects of the Commission, or for specific research, special
investigation or experimental work; and it may arrange, under
general authority given by the Council, cooperative research,
investigations or experimental work with other international
organizations, properly qualified institutions, governmental
or private, or with technical societies or associations."
21. Article 12 deals with dissolution and liquidation. Clause 12.1 deals
with dissolution which reads as follows: -
"12.1. ICID may be declared dissolved only by a
decision to be reached at a regular or a special meeting of the
Council and provided that at least two-thirds of the total
number of participating countries, whether represented at
such a meeting of the Council or not, vote for dissolution."
Clause 12.2 deals with liquidation and its procedure.
LPA 554/2006 page 17 of 32
22. There is a set of by-laws which have been frame by the ICID for due
implementation of the provisions of the ICID. It provides for election of
office bearers, working bodies of the ICID, permanent committees, role
and membership, temporary working bodies, International Executive
Council and various other aspects.
23. On a comprehensive survey of the Constitution of ICID and the by-
laws, we do not perceive that there is either any control of the government
either financially, functionally or administratively or it is dominated by
any action of the government. We do not even remotely see that there is
any kind of pervasive control. Some officers may be coming on deputation
regard being had to the character of the ICID or there may be initially a
grant of Rs.15,000/- in 1950 or some aid at times but that does not clothe it
with the character and status of „other authority‟ as understood under
Article 12 of the Constitution of India. Hence, we conclude and hold that
ICID is not an instrumentality of state or other authority under Article 12
of the Constitution of India.
24. The next ancillary or subsidiary issue which is fundamentally a part
of the seminal issue is whether the ICID performs such public activities as
LPA 554/2006 page 18 of 32
a consequence of which it becomes amenable to writ jurisdiction under
Article 226 of the Constitution.
25. In this context, we may refer to certain authorities which have been
cited by the learned counsel for the appellant to highlight that when public
duty is performed by a society or an organization, a writ petition would be
maintainable under Article 226 of the Constitution.
26. In the case of Shri Anadi Mukta Sadguru Shree Muktajee
Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and others v.
V.R. Rudani and others, AIR 1989 SC 1607, a two-judge bench of the Apex
Court was dealing with an issue pertaining to command of mandamus to
any other person or authority performing public duty. In the said case, the
appellant-trust was running a science college at Ahmedabad and when a
dispute arose between the trust and the teachers, the matter was referred
to the Chancellor of the Gujarat University for decision and the Chancellor
passed an Award. The Award passed by the Chancellor was accepted by
the University as well as by the State Government and direction was
issued to all affiliated colleges to pay their teachers in terms of the award.
The trust, instead of implementing the award, served notices of
LPA 554/2006 page 19 of 32
termination and approached the University for permission to remove them
but the same was refused by the Vice-Chancellor. The trust thereafter took
a decision to close down the college to the detriment of the teachers and
students. The teachers submitted their representations that they were
entitled to terminal benefits. When no response was received, they moved
the High Court for issue of a writ of mandamus commanding the trust to
pay them their dues, salary, allowances, provident fund and gratuity in
accordance with the rules framed by the University and pay them
compensation. The trust resisted the writ petition contending, inter alia,
that the trust was not a statutory body and is not subject to the writ
jurisdiction. The High Court repelled the said stand and issued direction
which was challenged before the Apex Court. Regard being had to the
role performed by the trust, their Lordships opined thus -
"14. If the rights are purely of a private character no
mandamus can issue. If the management of the college is
purely a private body with no public duty mandamus will not
lie. These are two exceptions to Mandamus. But once these are
absent and when the party has no other equally convenient
remedy, mandamus cannot be denied. It has to be appreciated
that the appellants-trust was managing the affiliated college to
which public money is paid as Government aid. Public money
paid as Government aid plays a major role in the control,
maintenance and working of educational institutions. The
aided institutions like Government institutions discharge
LPA 554/2006 page 20 of 32
public function by way of imparting education to students.
They are subject to the rules and regulations of the affiliating
University. Their activities are closely supervised by the
University authorities. Employment in such institutions,
therefore, is not devoid of any public character. (See-The
Evolving Indian Administrative Law by M.P. Jain (1983) p.
266). So are the service conditions of the academic staff. When
the University takes a decision regarding their pay scales, it
will be binding on the management. The service conditions of
the academic staff are, therefore, not purely of a private
character. It has super-added protection by University
decisions creating a legal right-duty relationship between the
staff and the management. When there is existence of this
relationship, mandamus cannot be refused to the aggrieved
party.
19. The term "authority" used in Article 226, in the context,
must receive a liberal meaning unlike the term in Article 12.
Article 12 is relevant only for the purpose of enforcement of
fundamental rights under Art. 32. Article 226 confers power
on the High Courts to issue writs for enforcement of the
fundamental rights as well as non-fundamental rights. The
words "Any parson or authority" used in Article 226 are,
therefore, not to be confined only to statutory authorities and
instrumentalities 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 be denied."
27. In K. Krishnamacharyulu and others v. Sri Venkateswara Hindu
College of Engineering and another, (1997) 3 SCC 571, a two-Judge Bench
LPA 554/2006 page 21 of 32
of the Apex Court was dealing with parity of employment to the Lab
Assistant as non-teaching staff in private college with the government
employees. An objection was raised with regard to the maintainability of
the writ petition which was sustained by the High Court. It was the
gravamen of contention that at the relevant time, the institution was not
receiving any grant-in-aid. Their Lordships, while dealing with the issue,
opined as follows: -
".....In view of the long line of decisions of this Court holding
that when there is an interest created by the Government in an
Institution to impart education, which is a fundamental right
of the citizens, the teachers who impart the education get an
element of public interest in the performance of their duties.
As a consequence, the element of public interest requires
regulation of the conditions of service of those employees on a
par with government employees. In consequence, are they
also not entitled to the parity of the pay scales as per the
executive instructions of the Government? It is not also in
dispute that all the persons who filed the writ petition along
with the appellant had later withdrawn from the writ petition
and thereafter the respondent-Management paid the salaries
on a par with the government employees. Since the appellants
are insisting upon enforcement of their right through the
judicial pressure, they need and seek the protection of law.
We are of the view that the State has obligation to provide
facilities and opportunities to the people to avail of the right to
education. The private institutions cater to the need of
providing educational opportunities. The teacher duly
appointed to a post in the private institution also is entitled to
seek enforcement of the orders issued by the Government. The
question is as to which forum one should approach. The High
LPA 554/2006 page 22 of 32
Court has held that the remedy is available under the
Industrial Disputes Act. When an element of public interest is
created and the institution is catering to that element, the
teacher, being the arm of the institution, is also entitled to
avail of the remedy provided under Article 226; the
jurisdiction part is very wide." [Emphasis supplied]
28. In G. Bassi Reddy v. International Crops Research Institute and
another, AIR 2003 SC 1764, the Apex Court has opined thus -
"28. A writ under Art. 226 can lie against a "person" if it is a
statutory body or performs a public function or discharges a
public or statutory duty Praga Tools Corporation v. C.V.
Imanual, (1969) I SCC 585: Andi Mukta Sadguru Trust v. V.R.
Rudani, (1989) 2 SCC 691, 698: VST Ind. Ltd. v. VST Ind.
Workers' Union and Another (2001) 1 SCC 298. ICRISAT has
not been set up by a statute nor are its activities statutorily
controlled. Although, it is not easy to define what a public
function or public duty is, it can reasonably be said that such
functions are similar to or closely related to those performable
by the State in its sovereign capacity. The primary activity of
ICRISAT is to conduct research and training programmes in
the sphere of agriculture purely on a voluntary basis. A
service voluntarily undertaken cannot be said to be a public
duty. Besides ICRISAT has a role which extends beyond the
territorial boundaries of India and its activities are designed to
benefit people from all over the world. While the Indian
public may be the beneficiary of the activities of the institute,
it certainly cannot be said that the ICRISAT owes a duty to the
Indian public to provide research and training facilities. In
Praga Tools Corporation v. C.V. Imanual, AIR 1960 SC 1306,
this Court construed Art. 226 to hold that the High Court
could issue a writ of mandamus "to secure the performance of
the duty or statutory duty" in the performance of which the
LPA 554/2006 page 23 of 32
one who applies for it has a sufficient legal interest". The
Court also held that:
".....an application for mandamus will not lie for an
order of reinstatement to an office which is essentially
of a private character nor can such an application be
maintained to secure performance of obligations owed
by a company towards its workmen or to resolve any
private dispute. (See Sohan Lal v. Union of India, 1957
SCR 738).""
[Emphasis supplied]
29. In M/s. Zee Telefilms Ltd. (supra), their Lordships, after holding that
BCCI is not a state under Article 12 of the Constitution, stated thus -
"31. Be that as it may, it cannot be denied that the Board
does discharge some duties like the selection of an Indian
cricket team, controlling the activities of the players and
others involved in the game of cricket. These activities can be
said to be akin to public duties or State functions and if there
is any violation of any constitutional or statutory obligation or
rights of other citizens, the aggrieved party may not have a
relief by way of a petition under Article 32. But that does not
mean that the violator of such right would go scot-free merely
because it or he is not a State. Under the Indian jurisprudence
there is always a just remedy for violation of a right of a
citizen. Though the remedy under Article 32 is not available,
an aggrieved party can always seek a remedy under the
ordinary course of law or by way of a writ petition under
Article 226 of the Constitution, which is much wider than
Article 32."
30. In Federal Bank Ltd. v. Sagar Thomas and others, (2003) 10 SCC 733
wherein the issue arose whether the bank, namely, Federal Bank Ltd., was
LPA 554/2006 page 24 of 32
amenable to writ jurisdiction of the High Court as it performs public duty,
their Lordships referred to the earlier decision in the field and opined
thus-
"18. From the decisions referred to above, the position that
emerges is that a writ petition under Article 226 of the
Constitution of India may be maintainable against (i) the State
(Government); (ii) an authority; (iii) a statutory body; (iv) an
instrumentality or agency of the State; (v) a company which is
financed and owned by the State; (vi) a private body run
substantially on State funding; (vii) a private body
discharging public duty or positive obligation of public
nature; and (viii) a person or a body under liability to
discharge any function under any statute, to compel it to
perform such a statutory function."
Thereafter, their Lordships referred to the decision in Shri Anadi
Mukta Sadguru Shree Kuktajee Vandasjiswami Suvarna Jayanti
Mahotsav Smarak Trust (supra) and other line of decisions with regard to
the maintainability of writ petition in respect of a private body which
performs public duty and duties of public character and expressed the
view as follows: -
"..... a private company carrying on banking business as a
scheduled bank, cannot be termed as an institution or a
company carrying on any statutory or public duty. A private
body or a person may be amenable to writ jurisdiction only
LPA 554/2006 page 25 of 32
where it may become necessary to compel such body or
association to enforce any statutory obligations or such
obligations of public nature casting positive obligation upon
it. We don't find such conditions are fulfilled in respect of a
private company carrying on a commercial activity of
banking. Merely regulatory provisions to ensure such activity
carried on by private bodies work within a discipline, do not
confer any such status upon the company nor put any such
obligation upon it which may be enforced through issue of a
writ under Article 226 of the Constitution."
31. In Binny Ltd. and another v. V. Sadasivan and others, AIR 2005 SC
3202, the issue arose whether the employees of Binny Ltd. could have been
granted a relief under the writ petition by the High Court by issuing a writ
of mandamus. Their Lordships addressed to the issue of grant of relief
under Article 226 of the Constitution and in that context opined thus -
"29. Thus, it can be seen that a writ of mandamus or the
remedy under Article 226 is pre-eminently a public law
remedy and is not generally available as a remedy against
private wrongs. It is used for enforcement of various rights of
the public or to compel the public/statutory authorities to
discharge their duties and to act within their bounds. It may
be used to do justice when there is wrongful exercise of power
or a refusal to perform duties. This writ is admirably
equipped to serve as a judicial control over administrative
actions. This writ could also be issued against any private
body or person, specially in view of the words used in Article
226 of the Constitution. However, the scope of mandamus is
limited to enforcement of public duty. The scope of
mandamus is determined by the nature of the duty to be
LPA 554/2006 page 26 of 32
enforced, rather than the identity of the authority against
whom it is sought. If the private body is discharging a public
function and the denial of any right is in connection with the
public duty imposed on such body, the public law remedy can
be enforced. The duty cast on the public body may be either
statutory or otherwise and the source of such power is
immaterial, but, nevertheless, there must be the public law
element in such action. Sometimes, it is difficult to distinguish
between public law and private law remedies. According to
Halsbury's Laws of England 3rd ed. Vol. 30, page-682, "a
public authority is a body not necessarily a county council,
municipal corporation or other local authority which has
public statutory duties to perform and which perform the
duties and carries out its transactions for the benefit of the
public and not for private profit." There cannot be any
general definition of public authority or public action. The
facts of each case decide the point."
[Emphasis supplied]
32. Applying the aforesaid enunciation of law, it is to be seen whether
the respondent-ICID functions public duty to make itself amenable to the
writ jurisdiction of this Court. In this context, we may refer with profit to
clause 2.1, which deals with mission of the ICID and clause 2.2, which
deals with scope of the ICID. The said clauses read as follows: -
"Mission
2.1. The Mission of the International Commission on
Irrigation and Drainage is to stimulate and promote the
development of the arts, sciences and techniques of
LPA 554/2006 page 27 of 32
engineering, agriculture, economics, ecology and social
science in managing water and land resources for irrigation,
drainage, flood control and river training applications,
including research and development and capacity building,
adopting comprehensive approaches and up-to-date
techniques for sustainable agriculture in the world.
Scope
2.2. The Commission in achieving its mission may consider
the following objectives:
(a) Planning, financing, socio-economic and
environmental aspects of irrigation, drainage,
flood control and undertakings for the
reclamation and improvement of lands as well as
the design, construction and operation of
appurtenant engineering works including dams,
reservoirs, canals, drains and other related
infrastructure for storage, conveyance,
distribution, collection and disposal of water.
(b) Planning, financing, socio-economic and
environmental aspects of schemes for river
training and behaviour, flood control and
protection against sea water intrusion of
agricultural lands as well as the design,
construction and operation of appurtenant works,
except such matters as relate to the design and
construction of large dams, navigation works and
basic hydrology;
(c) Research and development, training and capacity
building in areas related to basic and applied
science, technology, management, design,
operation and maintenance of irrigation,
drainage, flood control, river training
improvement and land reclamation.
LPA 554/2006 page 28 of 32
(d) Facilitation of international inputs required by the
developing countries, particularly the low income
countries lagging in the development of irrigation
and drainage;
(e) Promotion of the development and systematic
management of sustained irrigation and drainage
systems;
(f) Pooling of international knowledge on the topics
related to irrigation, drainage and flood control
and making it available worldwide;
(g) Addressing of international problems and
challenges posed by irrigation, drainage and
flood control works and promoting evolution of
suitable remedial measures;
(h) Promoting savings in use of water for agriculture;
(i) Promoting equity including gender equity
between users and beneficiaries of irrigation,
drainage and flood control systems;
(j) Promotion of preservation and improvement of
soil and water quality of irrigated lands."
33. On a perusal of the preamble and the objects, it is clear as crystal
that the respondent has been established as a Scientific, Technical,
Professional and Voluntary Non-Governmental International
Organization, dedicated to enhance the world-wide supply of food and
fibre for all people by improving water and land management and the
LPA 554/2006 page 29 of 32
productivity of irrigated and drained lands so that the appropriate
management of water, environment and the application of irrigation,
drainage and flood control techniques. It is required to consider certain
kind of objects which are basically a facilitation process. It cannot be said
that the functions that are carried out by ICID are anyway similar to or
closely related to those performable by the State in its sovereign capacity.
It is fundamentally in the realm of collection of data, research, holding of
seminars and organizing studies, promotion of the development and
systematic management of sustained irrigation and drainage systems,
publication of newsletter, pamphlets and bulletins and its role extends
beyond the territorial boundaries of India. The memberships extend to
participating countries and sometimes, as by-law would reveal, ICID
encourages the participation of interested national and non-member
countries on certain conditions.
34. As has been held in the case of Federal Bank Ltd. (supra), solely
because a private company carries on banking business, it cannot be said
that it would be amenable to the writ jurisdiction. The Apex Court has
opined that the provisions of Banking Regulation Act and other statutes
have the regulatory measure to play. The activities undertaken by the
LPA 554/2006 page 30 of 32
respondent-society, a non-governmental organization, do not actually
partake the nature of public duty or state actions. There is absence of
public element as has been stated in V.R. Rudani and others (supra) and
Sri Venkateswara Hindu College of Engineering and another (supra). It
also does not discharge duties having a positive application of public
nature. It carries on voluntary activities which many a non-governmental
organizations perform. The said activities cannot be stated to be remotely
connected with the activities of the State. On a scrutiny of the constitution
and by-laws, it is difficult to hold that the respondent-society has
obligation to discharge certain activities which are statutory or of public
character. The concept of public duty cannot be construed in a vacuum. A
private society, in certain cases, may be amenable to the writ jurisdiction if
the writ court is satisfied that it is necessary to compel such society or
association to enforce any statutory obligation or such obligations of public
nature casting positive public obligation upon it.
35. As we perceive, the only object of the ICID is for promoting the
development and application of certain aspects, which have been
voluntarily undertaken but the said activities cannot be said that ICID
LPA 554/2006 page 31 of 32
carries on public duties to make itself amenable to the writ jurisdiction
under Article 226 of the Constitution.
36. In view of the aforesaid premised reasons, we do not perceive any
merit in this appeal and, accordingly, the same stands dismissed without
any order as to costs.
CHIEF JUSTICE
APRIL 25, 2011 SANJIV KHANNA, J.
Dk/nm/kapil LPA 554/2006 page 32 of 32