M.M.S UNDRESH, J - (1.) IN view of the common issues involved in both appeals, they have been taken up together for disposal.
(2.) THE brief facts of the case in a nutshell are as follows: i. THE 1st appellant is a Society registered under the Societies Registration Act. It was established in the year 1990 being an autonomous Centre of the Ministry of Environment and Forests, Government of India. It was promoted by the Bombay Natural History Society, which is also an autonomous and a registered society. THE 1st appellant is governed by its own Memorandum of Association having its own Rules and Regulations framed by it. As per the Rules and Regulations, the membership of the appellant society would consist of eminent Ornithologist, Environmentalist, Administrators and Social and Physical Scientist. ii. THE principal object of the appellant society is to "develop an institution of excellence in the fields of Ornithology and Natural History". THE appellant society has a large number of research projects in various parts of the country including the Andaman and Nicobar Islands. THE executive organ of the appellant society is the governing council which shall function under the direct supervision and control of the society. iii. As per the rules and regulations, the membership of the appellant society consists of nominees of the Bombay Natural History Society, the Secretary and Finance Advisor of the Ministry of Environment and Forests, Government of India, Ex-officio the Secretary, Environment and Forest Department, Government of India, Ex-officio, Chief Executives of Research Institutions / Universities such as the Centre for Ecological Sciences, Indian Institute of Science, Bangalore, the Wild Life Institute of India, Dehradun, the Bombay Natural History Society, the Bharathiar University, Coimbatore, as well as the other members co-opted by the governing council. THE President of the Bombay Natural History Society is also the President of the appellant society and the Chairman of the governing council is a nominee of the above mentioned society. THE Director is appointed by the governing council and he is the Chief Executive and the Member Secretary of the appellant society. iv. In so far as the financial control is concerned, there shall be a Finance Committee which was include the Financial Advisor of the Ministry of Environment and Forest, Government of India to assist the governing council in financial matters. THE budget of the society shall be scrutinised by the Finance Department and approved by the governing council before the same is sent to the Government of India. Rule 13 speaks about the power of the Central Government in financial matters and also in relation to expenditure pertaining to adoption of pay-scale allowances and revisions thereof as well as the creation of posts carrying higher scale. Likewise Rule 18 speaks about the maintaining of the accounts as prescribed by the Central Government in consultation with the Comptroller and Audit General of India. THE accounts will have to be forwarded to the Central Government and it is open to audit by the accounts by the Comptroller and Audit General of India. THE Comptroller and Audit General of India will exercise the same power against the appellant society as in the case of auditing of other Government accounts. Rule 21 deals with alteration, extension or amendment of the object or purpose of the appellant society subject to the prior approval of the Ministry of Environment and Forest, Government of India. v. THE appellant society had appointed the respondents on probation for a period of two years by the proceedings dated 19.02.1992 and 19.10.1993 respectively. THE respondent in W.A.No.2837 of 2002 was appointed a System Analyst and the respondent in W.A.No.2838 of 2002 was appointed a Senior Scientist. It has been stated at the time of appointment by the appellants that the period of probation will be extended at the discretion of the appellants and the appointment made may be terminated without assigning any reasons by giving one month's notice. After the said appointments, the respondents have been working with the appellants in the capacity in which they have been appointed. However by the proceedings dated 30.01.1996, the services of the respondents were terminated and they have been discharged by the 1st appellant. THE said orders have been passed on the ground that the governing council considered the case of the respondents for the declaration of the probation and it was found that their work and conduct during the period of probation was unsatisfactory. vi. Challenging the orders passed by the 1st appellant dated 30.01.1996 on the ground that it has been passed with malafide intention, the respondents filed writ petitions in W.P.No.1842 of 1996 and W.P.No.1784 of 1996 seeking to quash the said orders with a further direction directing the appellants to reinstate them in service with backwages, continuity of service and other attendant benefits. THE learned single Judge on a consideration of the materials available on record has allowed the writ petitions by ordering reinstatement with service benefits while rejecting the request for backwages. Challenging the said orders passed by the learned single Judge, the appellants have preferred the writ appeals. Shri.R.Muthukumaraswamy, learned senior counsel appearing for the appellants submitted that the writ appeals will have to be allowed, since the writ petitions filed by the respondents are not maintainable in law. According to the learned senior counsel, the appellant being a society registered under the Societies Registration Act and also being a Non-Governmental autonomous Organisation having its own bye-laws, Rules and Regulations, the writ petitions are not maintainable, since the 1st appellant is not a State coming within the definition of Article 12 of the Constitution of India and therefore not amenable to the jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India. The learned senior counsel further submitted that there is no financial, administrative and functional control of the Government of India over the 1st appellant society. It is the case of the learned senior counsel that by applying the triple test of financial, administrative and functional control by the Government to the facts of the present case it has to be held that the appellant is not amenable to the jurisdiction of this Hon'ble Court. In support of his contention, the learned senior counsel has referred to the bye-laws, Rules and Regulations and administrative control of the appellant society. The learned senior counsel submitted that the bye-laws are made by the society and the appellant was promoted by Bombay Natural History Society which is also an autonomous Non-Governmental Organisation registered under the Societies Registration Act. The appellant society is governed by its own Memorandum of Association with its own Rules and Regulations framed by it. The members of the appellant society are from various places and the governing council which is the executive organisation of the appellant society functions under the direct supervision and control of the appellant. It is further submitted that the decisions of the governing council or the 1st appellant are based upon the view of the majority. The object of the appellant society is research, training, education in the field of ornithology and Natural History. Hence, the learned senior counsel submitted that the object, results and functions of the appellant society are Non-Governmental in nature. It is further submitted that even though the Government has given some fund to the appellant it is free to mobilise its own fund and purchase its own properties towards the promotion of its objectives and implementation of the programmes.
(3.) SHRI.R.Muthukumaraswamy, learned senior counsel submitted that the mere fact the appellant society was given finance by the Central Government by itself cannot be a ground to hold that the appellant is a State under Article 12 of the Constitution of India. According to the learned senior counsel that in the absence of any pervasive control by the Central Government over the appellant it cannot be said the appellant is an instrumentality of the State under Article 12 of the Constitution of India. In other words, the learned senior counsel submitted that a mere regulatory or supervisory control of the Central Government over the appellant would not bring the appellant within the purview of Article 12 of the Constitution of India. In support of his contention, the learned senior counsel has relied upon the judgments reported in (1991) 4 SCC 578 [CHANDER MOHAN KHANNA v. NATIONAL COUNCIL OF EDUCATIONAL RESEARCH AND TRAINING AND OTHERS], (2002) 5 SCC 111 [PRADEEP KUMAR BISWAS v. INDIAN INSTITUTE OF CHEMICAL BIOLOGY] and the recent judgment of the Apex Court reported in (2008) 1 MLJ 902 [LT. GOVERNOR OF DELHI v. V.K.SODHI] and contended that applying the ratio laid down by the Hon'ble Supreme Court in the said judgments, the appellant is not an instrumentality of the State and therefore not amenable to the jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India.;