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.;