Judgment:
Prabir Kumar Majumdar, J.
1. This is an appeal from the judgment and order dated 7th September, 1989, passed by a learned Judge of this Court on a Writ application filed by the appellant. The learned Judge dismissed the writ application refusing to interfere with the impugned order dated 29th November, 1988.
2. The appellant, a Veterinary Inspector in the respondent Calcutta Society for the Prevention of Cruelty to Animals, was appointed by an order dated 31st July, 1981, issued by the respondent Calcutta Society for the Prevention of Cruelty to Animals (hereinafter referred to as 'the Society') as Hospital Surgeon of the Society with effect from 1st August, 1991. The said order provided that the total remuneration which the appellant was drawing as Veterinary Inspector would remain unchanged except conveyance allowance and further the appellant would be provided with a free unfurnished quarters where the appellant would have to remain, as the service as Hospital Surgeon was a emergent one. By the said order dated 31st July, 1982 the appellant was also directed to hold the post of Veterinary Inspector in addition to his duties as Hospital Surgeon, till the new incumbent joined.
3. By an order dated 29th November, 1988 issued by the Society, the appellant was informed that pursuant to the decision of the Executive Committee of the Society held on 28th November, 1988, the appellant, Hospital Surgeon of the Society, was directed to assume the charge of Veterinary Inspector in order to carry out field work in the interest of maintaining the provisions of Prevention of Cruelty to Animals Act, 1960. By the said order the appellant was also directed to hand over charge of Hospital Surgeon of the Society to one Dr. N. K. Saha, Assistant Superintendent of the Society, within 31st December, 1988.
4. The appellant has challenged this order dated 29th November, 1988 by a Writ application before the trial Court. The appellant invoked the jurisdiction of the Court of first instance under Article 226 of the Constitution by pleading, inter alia, that the Society is run or its expenses are mostly met with the grants from the Government of West Bengal and as such the said Society is a 'State' within the meaning of Article 12 of the Constitution. The appellant challenged the said impugned order dated 29th November, 1988 on the grounds, inter alia, that the impugned order was punitive in nature and was passed in colourable exercise of power, it was arbitrary and mala fide in nature and the order amounted to reduction in rank and was therefore liable to be set aside and quashed.
5. Before the Court of first instance the respondents raised a preliminary objection as to the maintainability of the Writ application filed by the appellant, inter alia contending that the Society is not 'the State' within the meaning of Article 12 of the Constitution and as such the Society is not amenable to the Writ jurisdiction of this Court. The learned Judge held that the respondent No. 1, the Society was not 'the State' or an authority within the meaning of Article 12 of the Constitution. The learned Judge relying on the decision of Andi Mukta S.M.V.S.S.J.M.S. Trust v. V. R. Rudani reported in : (1989)IILLJ324SC held that the Society performing a public duty was an authority within the meaning of Article 226 of the Constitution and as such it was amenable to Writ jurisdiction and the Writ application was maintainable against the respondent Society. On the merits of the case the learned Judge however held that the post of Veterinary Inspector and the post of Hospital Surgeon were interchangeable and as such the Society was competent to transfer the appellant from the post of Hospital Surgeon to the post of Veterinary Inspector and the impugned order dated 29th November, 1988 was not made mala fide nor was it amounting to reduction in a rank as alleged by the petitioner before the trial Court. The learned Judge accordingly finding no merit in the Writ application dismissed the same and vacated the interim orders.
6. The appellant has come up on appeal against the judgment and order passed by the learned Judge of the Court of first instance dismissing the Writ application. The respondent has also raised a cross-objection challenging the finding of the learned Judge with regard to maintainability of the application holding, inter alia, that the respondent Society was amenable to Writ Jurisdiction.
7. The learned Judge held that the respondent Society was amenable to Writ jurisdiction relying on the decision of the case reported in : (1989)IILLJ324SC . In the case before the Supreme Court there was a Trust managing an affiliated college with government aid besides donations. A point arose before the Supreme Court that it was an Authority under Article 226 of the Constitution against which the Writ should lie. The Supreme Court held as follows:
'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 tha control, maintenance and working of educational institutions. The aided institutions like government institutions discharge public functions 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, is: not devoid of any public character. 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.'
The Supreme Court observed that if the rights were of purely private character, no mandamus could issue but where the aided institutions discharged certain public function by way of imparting education to students and also such educational institutions were subject to the rules and regulations of the affiliating University mandamus would lie. As such, the said institutions being an authority under Article 226 of the Constitution was amenable to Writ jurisdiction and Writ lay against such institution. The Supreme Court also observed that the term 'authority' used in Article 226 in the context must receive a liberal meaning unlike the term in Article 12 of the Constitution. The words 'any person or authority' used in Article 226 were not to be confined only to statutory authorities and instrumentalities of the State. They might cover any other person or body performing public duty. The Supreme Court also observed that the form of the body concerned was not very-much relevant and what was relevant was the nature of the duty imposed on the body.
8. In the instant appeal before us, the Object of the Society as stated in the writ petition are as: follows :
'(i) To prevent the cruel treatment of animals;
(ii) To secure the welfare of animals within the Town and suburbs of Calcutta and places adjacent thereto;
(iii) To do all things conducive to the aforesaid objects;
(iv) To establish an infirmary by the Society and arrange for medical aid for the treatment of sick and injured animal involved in street accidents ;
(v) To adopt all means, as provided in law to stamp out the most barbarous and agonising practice of PHOOKA performed by the heartless and unscrupulous Goalas ;
(vi) To prevent all forms of cruelty likely to be done towards the dumb and defenceless animals within the city ; and
(vii) To make necessary propaganda indicating lessons on kindness towards animals on the public in general.'
9. It is a fact that besides donations the Society also receives financial aid from the Government out of which the salaries of the employees of the Society are met.
10. It has been submitted on behalf of the appellant that the Society discharges certain public function or public duties for enforcing the provisions contained in the Prevention of Cruelty to Animals Act, 1960 (hereinafter referred to as the said Act). It is also submitted by the appellant that there has been certain financial aid from the Government for the purpose of maintaining the staff of the Society. Therefore, according to the appellant, the Society is an aided institution and also it performs certain public duty.
11. The question whether a particular entity is 'the State' or an authority or instrumentality or agency of the State within the meaning of Article 12 of the Constitution, has been considered in various decisions of the Supreme Court. Reference may be made to (Som Prakash Rekhi v. Union of India), : (1981)ILLJ103SC (Ajay Hasia v. Khalid Mujib Sehravardi), : (1988)ILLJ341SC (Tekraj Vasandi v. Union of India) and lately : (1992)ILLJ331SC (Chander Mohan Khanna v. The National Council of Educational Research & Training).
The Supreme Court in : (1992)ILLJ331SC (Chander Mohan Khanna v. The National Council of Educational Research & Training), has, inter alia, observed that Article 12 of the Constitution 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. The Supreme Court has further observed that 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 State control, however vast and pervasive, is not determinative. The Supreme Court also observed that the financial contribution by the State is 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, according to the Supreme Court, there may be little difficulty in identifying the body as 'State' within the meaning of Article 12 of the Constitution.
12. In : (1988)ILLJ341SC (Tekraj Vasandi alias K.L. Basandhi v. Union of India and Ors., similar point arose whether a particular entity was an authority within the meaning of Article 12 of the Constitution. The Supreme Court observed that there were tests formulated by several cases of the Supreme Court to find out whether an institution was a 'State'. There could not be a strait jacket formula and also it was not necessary that all the tests should be satisfied for reaching the conclusion either for or against holding an institution to be 'State'.
13. The test as formulated by the Supreme Court in several decisions on the point may be stated as that the preponderant considerations for pronouncing an entity as agency or instrumentality are (i) financial resources of the State being the chief funding source, (ii) financial character being governmental in essence, (iii) plenary control residing in Government, (iv) prior history of the same activity having been carried on by Government and made over to a new body, and (v) some element of authority or command. Now, applying the test as formulated, the aid as provided by the Government to the Society, in the instant appeal, is not the primary funding source ; there are donations as well. There is also no element of authority or command by the Government. The Society is a Society registered under the Societies Registration Act and performs certain duty towards prevention of cruelty to animals. It may have to take recourse to the provisions of the said Act for achieving the objects of the said Society, but from this no conclusion can be drawn that the Society performs a public duty pursuant to certain statutory provisions. The respondent Society registered under the Act XXI of 1860 was established in 1861, and it appears to us that till to-day it has never been under direct or indirect control or command of the State.
14. The learned trial Judge in his judgment, however, has relied on the decision of the Supreme Court in Audi Mukta's case reported in : (1989)IILLJ324SC (supra). It is indicated in the said judgment that the form of body is not important and what is important is the nature of duty imposed on the body. The duties of the Society mainly and primarily are to prevent cruelty to animals. It may be a public duty in essence or that it does some public duty. But that would not invariably lead to this conclusion that a body performing certain duties with certain public fund (meaning the Government fund) is authority under Article 226 of the Constitution amenable to writ jurisdiction. The duty as stated by the Supreme Court in the said Audi Mukta's case (supra) is a duty in the nature of some positive obligation and as such the Society performing such duty may be amenable to writ. Here, the challenge is relating to service matter and such service obligations flow from a private contract not having any statutory strappings and the impugned order of transfer has not been made in contravention of any statutory provision or any duty imposed by the statute. Also the condition of service of the appellant is not governed or controlled by any statutory provision. Therefore, the impugned action in the case before us, is not in the nature of public character. The writs as contemplated under the Constitution are public law remedies and these are not available for enforcing private law rights; In the Tekrafs case (supra) the Supreme Court has noticed the caution that even if some institution become 'State' under Article 12 of the Constitution its employees are not entitled to the benefits of Part III of the Constitution or to the cover of Article 311 of the Constitution.
15. In the premises, we hold that the respondent-Society is neither a 'State' nor instrumentality nor agency of 'State' within the meaning of Article 12 of the Constitution nor an authority within the meaning of Article 226 of the Constitution. We, therefore, hold that the learned trial Judge went wrong in holding that the respondent-Society is an authority within the meaning of Article 226 of the Constitution and is amenable to writ jurisdiction. We, therefore, set aside this finding of the learned trial Judge and allow the cross-objection of the respondent-Society.
16. As stated above, the appellant has challenged the said impugned order dated 29th November, 1988 whereby the appellant was directed to assume charge as a Veterinary Inspector and to hand over charge as Hospital Surgeon to Dr. N. K. Saha, the Assistant Superintendent of the respondent-Society. The appellant has challenged the said order on the ground, firstly, that the said order was arbitrary and mala fide. No particulars of mala fide has been furnished in the petition. Secondly, the said order amounted to reduction in rank. It is the contention of the appellant that the appellant was appointed substantively as Hospital Surgeon of the respondent-Society by an order dated 31st July, 1982. And after allowing the appellant to hold the substantive post of Hospital Surgeon since July 1982, according to the appellant, the respondent cannot transfer him to a post from which he had been appointed as Hospital Surgeon. According to the appellant, such order amounted to reduction in rank, e.g., by appointing him as Veterinary Inspector the rank which he was holding as Hospital Surgeon has been reduced. The respondent, however, submitted before the Court of first instance as also before us that the post of Veterinary Inspector which he was holding before being appointed as Hospital Surgeon and the post of Hospital Surgeon are interchangeable posts and under the service condition governing the appointment of the appellant, the respondent is competent to transfer the incumbent from one post to the other post interchangeable in nature and as such there has been no reduction in rank by transferring the appellant from the post of Hospital Surgeon to the post of Veterinary Inspector. The respondent has also drawn our attention to the conditions of Service governing the appellant's appointment and it says, inter alia, that all servants: of the Society holding any of the appointment included in Appendix-I shall be under the direct orders of the Secretary-Superintendent who is empowered:-
(a) to recommend candidates for appointment and promotion ;
(b) to transfer ;
(c) to pass grade increments for ;
(d) to grant leave to ;
(e) to suspend with loss of pay ; and
(f) to accept, subject to Rules 2 & 6, the resignation of all staff.
The Appendix-I, i.e., the Schedule of appointment, indicates the posts including the post of Veterinary Surgeon, which is also called Veterinary Inspector. But from this Appendix-I, it does not appear whether the posts enumerated there are interchangeable posts.
17. It seems to us that there may be some substance in the contention of the appellant and that the learned trial Judge did not truly appreciate the position while holding that the post of Hospital Surgeon and the post of Veterinary Surgeon or Veterinary Inspector are interchangeable posts.
18. Since we have already held that this writ application is not maintainable in view of the fact that the respondent-Society is not a 'state' nor an authority within the meaning of Article 12 of the Constitution, nor is it a State or authority within the meaning of Article 226 of the Constitution, therefore, in our view, on the facts of the case, there is no application of the decision of the Supreme Court in Audi Mukta's case, : (1989)IILLJ324SC (supra).
19. We are of the view that the rights of the appellant and the respondent, even is an 'authority', touching the question of employment flow from a private contract and the conditions of service are not governed or controlled by any statutory provision, as it is in the instant case, and further the impugned action of the respondent Society has no public law character, then there will be no occasion for interference in the writ jurisdiction. We need not make any observation as to the validity or otherwise of the impugned order as we hold that this writ application is not maintainable.
20. It appears to us and it has been submitted before us that the appellant has been occupying the quarters meant for Hospital Surgeon even after the issuance of the impugned order. It is also submitted that the appellant is due to retire in or about six or seven months' time, i.e., early 1993. Learned Counsel appearing for the respondent, however, fairly submits on instruction that his client will not disturb his occupation of the quarters until the appellant's reaching the age of superannuation which may be in early 1993. Considering this submission made on behalf of the respondent and also considering the fact that the appellant has got only a few months to go before his retirement, we direct the respondent to allow the appellant to occupy the quarters meant for Hospital Surgeon which the appellant is presently occupying till he attains the age of superannuation. But the appellant is clearly directed hereby that he will vacate the quarters enjoyed by him immediately upon his attaining the age of superannuation. This direction is given on the basis of the submission made on behalf of the appellant that the appellant has few months to go before retirement and so his possession of the quarters he is occupying at present may not be disturbed, to which the respondent, however, submitted that the respondent would not disturb the appellant's occupation of the quarters until the appellant reaches the age of superannuation.
21. We, therefore, set aside the finding of the learned trial Judge with regard to the maintainability of the writ application. We also set aside the findings as made by the learned trial Judge as to the merits of the writ application.
22. The appeal is, therefore, dismissed with the observations and directions made above and we allow the cross-objection of the respondent which is restricted to the finding of the learned trial Judge as to the maintainability of the writ application.
23. In the facts of the cases, there will be no order as to costs.
B.L. Jain, J.
24. I agree.