- (1.) The Petitioners before me in this batch of writ petitions are all academic staff of the Indian Association for Cultivation of Science. This is a society registered under the provisions of Act XXI of 1860.I shall refer to the society in the later part of this judgment as the said society.
(2.) The grievance of the Petitioners is over certain disputes relating to service in the said institute. Appearing for the institute, Mr. Sengupta, learned Counsel has raised a preliminary objection on maintainability of these writ petitions on the ground that his client is not "State" or other authority within the meaning of Article 12 or Article 226 of the Constitution of India, and hence not amenable to the Constitutional Writ Jurisdiction of this Court. Relying on a decision of a Division Bench of this Court involving the same institute in the case of Director, Indian Association for the Cultivation of Science, Jadavpur and Ors. v. Ashoke Kumar,1992 1 CLJ 319, he seeks dismissal of all these writ petitions on this ground. In this judgment, the status of this very organisation was tested by the Hon'ble Division Bench to ascertain whether it fulfilled the character of "State" or "other authority" or not and it was held: In the result, we uphold the preliminary objection raised on behalf of the Appellant that the Indian Association for the Cultivation of Science, Jadavpur is not an 'authority' within the meaning of Articles 12 and 226 of the Constitution and as such no writ lies against the Appellant association. In view of our determination with regard to the preliminary point it is not necessary on our part to go into the merits of this case. Accordingly, the order of the learned Trial Judge dated 20th July, 1990 passed in C.R. No. 13063(W) of 1986 is set aside
(3.) The reason as to why the Hon'ble Division Bench came to such a conclusion appears from paragraphs 4 and 5 of the judgment in the said report, in which it has been held: The composition of the Council is dominated by private persons and not by person appointed or nominated by the Central Government or State Government. The money required for running the said Institution is not provided by the Central Government or State Government, but from various other sources and the Council may or may not accept such grants given by the Government. There is no provision that the Society can accept money only with the approval of Central Government and Central Government had no manner of Control over the receipts and disbursement of the money by the society. The accounts of the society are not to be submitted by the Government for their scrutiny and or approval. Only in respect of grants received from the Central Government the account has to be audited by the Auditor and Comptroller General and Audit report has to be sent for information of the Government. There is no provision that the Society has to comply with all such directions are may be issued by the Central Government in this behalf. Reliance was placed to the decision of the Supreme Court in the case of (2) Ajay Hasia v. Khalid Mujib, 1981 AIR(SC) 487, wherein the Supreme Court observed that "Where a Corporation is an instrumentality or agency of the Government it must be held to be an authority within the meaning of Article 12 and hence subject to the same basic obligation to obey the Fundamental Rights and the Government. It is immaterial for determining whether a Corporation is an authority 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 enquiry has to be not as to how the juristic person is born but why is has been brought into existence. The Corporation may be a statutory Corporation created by a statute or it may be Government company of a company formed under the companies act or it may be a society registered under the Societies Registration act 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. A Juristic entity which may be "State" for the purpose of parts III and IV would not be so for the purpose of part XIV or any other provision of the Supreme Court in the case of Chander Mohan Khanna v. National Council of Educational Research & Training and Ors, 1992 AIR(SC) 76, wherein the Supreme Court observed that "There are only general principles but not exhaustive test to determine whether a body is an instrumentality or agency of the Government. Even in general principles, there is no cut and dried formula which would provide correct division of bodies into those which are not. The powers, functions, finances and control of the Government are some of the indicating factors to answer the question whether a body is 'State' or not. Each case should be handled with care and caution. Where the financial assistance from the State is so much as to meet almost entire expenditure of the institution, or the share capital of the corporation is completely held by the government, it would afford some indication of the body being impregnated with government character. It may be a relevant factor if the institution or the corporation enjoys monopoly status which is State conferred or State projected. Existence of deep and pervasive State control may afford an indication. If the functions of the institution are of public importance and related to Governmental functions, it would also be a relevant factor. There are merely indicative indicia and are by no means conclusive or clinching in any case. Article 12 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 to State control. The State Control does not render such bodies as "State" under Article 12. The Control, however vast and pervasive, is not determinative. The combination of State and 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 difficulty in identifying the body as "State" within the meaning of Article 12 of the Constitution. [See (3) P.K. Ramchandra Iyer v: Union of India, , 1984 (2) SCC 14; AIR 1984 SC 541, (4) Central Inland Water Transport Corporation v. Brojonath Ganguli, 1986 3 SCC 156 ; AIR 1986 SC 1571; and (5) Tekraj Vasandhi alias K. K. Basandhi v. Union of India, 1988 2 SCR 260 ; AIR 1988 SC 469. In that case it was further held that the National Council of Educational Research and Training (referred to as NCERT) was a society registered under the Societies Registration Act. Like all societies, it was a memorandum of Association. It has Rules for internal management. The Supreme Court considered the object of the NCERT and held that the affairs of the NCERT are conducted by the Executive Committee comprising of Government servants and educationists. The Executive Committee would enter into arrangements with Government. Public or private organisations or individuals in furtherance of the objectives for implementation of programmes. The funds of the said society consisted of (i) grants made by the Government, (ii) contribution from other sources, and (iii) income from its own assets. It was free to apply its income and property towards the promotion of its objectives confined only to the proper utilization of the grant. It was held that the said society thus was largely an autonomous body.;