S. H. A. Raza and R. P. Nigam, JJ.@mdashIt was vehemently urged by the learned counsel for the petitioner that the pronouncement of Hon''ble Supreme Court in
2. The arguments advanced by the learned counsel for the petitioner has substantial force. Much water has flown since the decision of the Hon''ble Supreme Court in Sabhajit Tewary v. Union of India and others (supra). The Hon''ble Supreme Court in the recent years have enlarged the jurisdiction of the Court in entertaining the writ petitions against the order passed by the other instrumentalities of the State like ICAR. In an every-fast changing society, the law should also be vibrant and dynamic. It cannot remain static.
3. The doctrine of stare decisis cannot stall the progress of law as the Courts often reconsider its own judgments and pronouncements.
4. In Ajay Hasia etc. v. Khalid Mujib Sehravardi and others (supra) while discussing the pronouncement of Hon''ble Supreme Court in Sabhajit Tewary v. Union of India and others (supra), Hon''ble Supreme Court held in Para 13 of the report that :
"The test which the court applied for determining this question was the same as the one laid down in the International Airport Authority''s case approved by us, namely, whether the Council was an instrumentality or agency of the Government. The Court implicitly assented to the proposition that if the Council were an agency of the Government, it would undoubtedly be an "authority". But, having regard to the various features enumerated in the judgment, the Court held that the Council was not an agency of the Government and hence could not be regarded as an "authority". The Court did not rest its conclusion on the ground that the Council was a society registered under the Societies Registration Act, 1860, but proceeded to consider various other features of the Council for arriving at the conclusion that it was not an agency of the Government and therefore, not an "authority". This would have been totally unnecessary if the view of the Court were that a society registered under the Societies Registration Act can never be an "authority" within the meaning of Article 12."
5. In Ajay Hasia etc. v. Khalid Mujib Sehravardi and others (supra), Sabhajit Tewary v. Union of India and others (supra) was although diluted, but Hon''ble Supreme Court did not hold that Sabhajit Tewary did not hold the field. But in Ajay Hasia, Hon''ble Supreme Court summarised the relevant tests gathered from the decision in the International Airport Authority''s 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."
(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."
(3) "It may also be a relevant factor ................. whether the corporation enjoys monopoly status which is the State conferred or State protected."
(4) "Exercise of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality."
(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."
(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."
More or less similar view was taken by Hon''ble Supreme Court in
"This Court accordingly concluded that C.S.I.R. is not an instrumentality of the Government comprehended in the expression "other authority" within the meaning of Article 12 of the Constitution, and the writ jurisdiction cannot be invoked against it. Much water has flown down the Jamuna since the dicta in Sabhajit Tewary case and conceding that it is not specifically overruled in later decision, its ratio is considerably watered down so as to be a decision confined to its own facts. The case is wholly distinguishable on the facts apart from the later indicia formulated by the Court for ascertaining whether a body is "other authority" within the meaning of Article 12. A mere comparison of the history of I.C.A.R. as extensively set out hereinbefore and the setting up of C.S.I.R. would clearly show that I.C.A.R. came into existence as a department of the Government, continued to be an attached office of the Government even though it was registered as a society and wholly financed by the Government and the taxing power of the State was invoked to make it financially viable and to which independent research institutes set up by the Government were transferred. None of these features was present in the case of C.S.I.R. and therefore, the decision in Sabhajit Tewary case would render no assistance and would be clearly distinguishable."
It was further observed in Para 13 of the judgment that:
"The ratio, if any, of the decision in Sabhajit Tewary case was examined by a Constitution Bench of this Court in Ajay Hasia case and it was held that decision is not an "authority" for the proposition that a society registered under the Societies Registration Act, 1860 can never be regarded as an ''authority'' within the meaning of Article 12. The Court further held that having regard to the various features enumerated in the judgment in Sabhajit Tewary case, the conclusion was reached that the C.S.I.R. was not an agency of the Government, but the Court did not rest its conclusion on the sole ground that C.S.I.R. was a society registered under the Societies Registration Act, 1860, and on the contrary proceeded to consider various other features of the Council for arriving at the conclusion that it was not an agency of the Government and therefore, it was not an authority for the proposition that a society registered under the Societies Registration Act for that reason alone would not be comprehended in the expression "other authority". In Ajay Hasia case, this Court after taking note of the decisions in Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCO 489 and
In this connection, the Hon''ble Supreme Court further observed that:
"The State and the Central Government have even the power to appoint any other person or persons to be members of the Society and any member of the Society other than a member representing the State or the Central Government can be removed from the membership of the Society by the State Government with the approval of the Central Government. The Board of Governors, which is in charge of general superintendence, direction and control of the affairs of Society and of its income and property is also largely controlled by nominees of the State and the Central Governments. It will thus, be seen that the State Government and by reason of the provision for approval, the Central Government also, have full control of the working of the Society and it would not be incorrect to say that the Society is merely a projection of the State and the Central Governments and to use the words of Ray, C.J. in Sukhdev Singh case, (1975) 1 SCC 421, the voice is that of the State and the Central Governments and the hands are also of the State and the Central Governments. We must, therefore, hold that the Society is an instrumentality or the agency of the State and the Central Governments and it is an "authority" within the meaning of Article 12."
Applying the aforesaid principles in P. K. Ramachandra Iyer and others v. Union of India and others (supra), which is a registered society was held that I.C.A.R. is an "authority" falling within the definition of "State" under Article 12 of the Constitution of India.
7. In U. P. State Co-operative Land Development Bank Limited v. Chandra Bhan Dubey (supra), the Bank which was registered under the Societies Registration Act, 1860, was held to be the State.
8. Considering the ratio of the aforesaid declarations, we have to consider as to whether the Council of Scientific and Industrial Research (CSIR), which is India''s largest Research and Development Organization having 40 laboratories spread over the length and breadth of the country, which is controlled superintended and governed and funded by the Ministry of Human Resources and Development and Science and Technology is a State.
9. In Sabhajit Tewary case (supra), it has been mentioned that :
"The C.S.I.R, is a society registered under the Societies Registration Act and the Prime Minister of India is the ex-officio President of the Society. The Governing Body is appointed by the Government of India representing the administrative ministry under which the Council of Scientific and Industrial Research is included, and the Ministry of Finance and one or more members appointed by the Government of India. The Government of India may terminate the membership of any member or at one and the same time of all members other than the ex-officio members of the Governing Body. The Governing Body shall have the management of all the affairs and funds of the society. The Governing Body shall have power, with the sanction of the Government of India to frame, amend or repeal bye-laws not inconsistent with the rules for the administration and management of the affairs of the Society and in particular to provide for the terms and tenure of appointments, emoluments, allowances, rules of discipline and other conditions of service of the officers and staff of the Society."
10. The C.S.I.R. is controlled, managed and administered by a Council, which is appointed and funded by the Government of India. The only reason for which it was not held as the "other authority", within the meaning of Article 12 of the Constitution was that the society does not have a statutory character like the Oil and Natural Gas Commission, or the Life Insurance Corporation or Industrial Finance Corporation, but it is a society incorporated in accordance with the provisions of the Societies Registration Act.
11. A Full Bench of the Andhra Pradesh High Court in Sri Konaseema Coop. Central Bank Ltd. v. N. Seetharama Raju AIR 1990 AP 171, considered the question whether a writ petition lay against a cooperative society and if it did, in what circumstances. After examining various decisions and treatises on the subject, it was stated that even if a society could not be characterized as a "State" within the meaning of Article 12, even so a writ would lie against it to enforce a statutory public duty which an employee is entitled to enforce against the society. In such a case. It is unnecessary to go into the question whether the society is being treated as a "person" or an "authority", within the meaning of Article 226 of the Constitution. What is material is the nature of the statutory duty placed upon it and the Court is to enforce such statutory duty public duty.
12. In U. P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey and others (supra). Hon''ble Supreme Court held in Para 27 of the report that:
"In view of the fact that control of the State Government on the appellant is all pervasive and the employees had statutory protection and therefore the appellant being an authority or even instrumentality of the State, would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution, it may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of Article 226, there does not appear to exist such a divide. To understand the explicit language of the article. It is not necessary for us to rely on the decision of the English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or person, does not make any such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including, in appropriate cases, any Government. Under clause (1) of Article 367, unless the context Otherwise requires, the General Clauses Act, 1897, shall subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the legislature of the Dominion of India. "Person" u/s 2(42) of the General Clauses Act shall include any company or association or body of individuals, whether incorporated or not. The Constitution is not a statute. It is a fountainhead of all the statues. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals, whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this Court has laid down certain guidelines and self-imposed limitations have been put there subject to which the High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances."
13. In subsequent judgments, Hon''ble Supreme Court has diluted rather watered down the principle, which was evolved in Sabhajit Tewary''s case (supra) and exercised a view that a society registered under the Societies Registration Act, which is controlled and funded by the State comes within the definition of the word "other authority" within the meaning of Article 12 of the Constitution hence, the arguments advanced by Sri Asit Chaturvedi that the dicta of Sabhajit Tewary has attained finality and the C.S.I.R. cannot be subjected to be an instrumentality of the State, does not appear to be sound, C.S.I.R. fulfills all the six relevant tests gathered from the decision in the International Airport Authority and Ajay Hasia''s case, hence we hold that the C.S.I.R. is deemed to be "other authority" within the meaning of Article 12 of the Constitution of India. This view, which we have taken is fortified by the fact that the C.S.I.R. has been included in the Government of India''s notification issued u/s 14(2) of the Central Administrative Tribunal Act, meaning thereby that the Scientists and the staff working in C.S.I.R. are public servants.
14. But the contention of Shri Asit Chaturvedi that as the C.S.I.R. has been included in the Government of India''s Notification issued u/s 14(2) of the Central Administrative Tribunal Act, the petitioner, cannot be permitted to short-circuit the process of law by invoking the jurisdiction of this Court under Article 226 of the Constitution of India without exhausting the alternative remedy available to him as provided u/s 19 of the Central Administrative Tribunal Act by filing an Original Application before the Tribunal, has substantial force.
15. We are definitely of the opinion that, in view of the Hon''ble Supreme Court decision in
