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1995 Supreme(AP) 739
Andhra Pradesh High Court
Judges : G.BIKSHAPATHY
T.Parimala Prasad - Appellant
Versus
General secretary, YMCA of Greater Hyderabad - Respondent
Decided On : 10-31-95
A writ petition is not maintainable against a private organization that does not perform any public duty.
Headnote:
WRIT PETITION - MAINTAINABILITY - SOCIETIES REGISTRATION ACT - YMCA - TRANSFER OF EMPLOYEE - PUBLIC DUTY - ARTICLE 12 OF THE CONSTITUTION OF INDIA - SUMMARY
Fact of the Case:
The petitioner, a stenographer employed by YMCA, challenged her transfer from the YMCA headquarters to the YMCA Secunderabad branch, alleging that it was illegal and arbitrary. The YMCA contended that the writ petition was not maintainable against it as it was a society registered under the Societies Registration Act and did not fall within the definition of State or instrumentality of State under Article 12 of the Constitution of India.
Finding of the Court:
The court held that the writ petition was not maintainable against YMCA as it was a private organization and did not perform any public duty. The court noted that the objects of the YMCA, as set out in its Memorandum of Association, were to promote the spiritual, intellectual, social, and physical well-being of its members and to provide them with opportunities to understand and accept the responsibility of good citizenship. The court found that these objects were purely private in nature and did not involve the performance of any public duty.
Issues: Whether the writ petition was maintainable against YMCA, a society registered under the Societies Registration Act, which did not fall within the definition of State or instrumentality of State under Article 12 of the Constitution of India.
Ratio Decidendi: The court relied on the Supreme Court's decision in Andi Mukta Sadguni Shree Muktajee vandas Swami Suvarna Jayanti Mahotsav smarak Trust v. V. R. Rudani, which held that mandamus could not be issued against a private body with no public duty. The court also noted that the YMCA's objects, as set out in its Memorandum of Association, were purely private in nature and did not involve the performance of any public duty.
Final Decision: The court dismissed the writ petition, holding that it was not maintainable against YMCA.
( 1 ) THE petitioner seeks declaration that the action of the 1st respondent - General Secretary, YMCA of Greater hyderabad in transferring her from YMCA head-quarters to YMCA Secunderabad branch from the post of Stenographer grade-III to the post of Office Assistants as illegal and arbitrary.
( 2 ) THE petitioner submits that she was appointed as Stenographer in 1987 on temporary basis and subsequently was made permanent. While so by orders dated 31-7-1995 she was transferred to YMCA secunderabad branch with effect from 1-8-1995. The grievance of the petitioner is that the said transfer is wholly illegal and arbitrary and it is an act of unfair labour practice. Therefore, the petitioner assails the action of the 1st respondent and seeks declaration that the said order of transfer is to be quashed.
( 3 ) COUNTER-AFFIDAVIT was filed on behalf of respondents No. 1 and 2 stating that the writ petition is not maintainable against ymca, as it is a society registered under the Societies Registration Act and it does not fall within the definition of State or instrumentality of State, as defined under article 12 of the Constitution of India. Hence, the writ petition is liable to be dismissed on this sole ground. Even on merits also, the respondents submit that the petitioner was transferred from Hyderabad to Secunderabad and there is no loss of emoluments. The power of transfer has been exercised validly and the petitioner cannot complain the same before this court.
( 4 ) NOW, the question that arises for consideration in this writ petition is whether the writ petition is maintainable against YMCA?
( 5 ) THE learned counsel for the petitioner relied on the decision of this court rendered in T. Gattaiah v. The commissioner of Labour (1) 1981 (1) alt 393 wherein this court held that a writ" a writ against a private individual is competent provided that he sought for enforcement of a statutory duty".
( 6 ) ADMITTEDLY, this is a case where the petitioner is challenging the transfer order and, therefore, no element of public duty is cast on the 1st respondent Hence this decision is not applicable.
( 7 ) THE learned counsel for the petitioner also relied on:2) Shri Sohan Lal v. Union of India (2) air 1957 SC 529 3) Dwaraka Nath v. Income Tax officer, Special Circle - D Ward, kanpur (3} AIR 1966 SC 81 4) Rohtas Industries Ltd v. Rohtas industries Staff Union (4) AIR 1976 sc 425 5) Dhari Gram Panchayat v. Saurashtra mazdoor Mahajan Sangh (1987) 4 SCC 213 6) Union of India v. M/s Suksha international and M/s Nutan Gems air 1989 SC 690
( 8 ) I need not refer to all these decisions of the Supreme Court. Suffice to say that the writ petition is maintainable even against the private individual, provided public duty is cast on the person. So long as there is no performance of public duty the petitioner cannot approach this court. The transfer of an employee from one branch to another branch is purely administrative function and it cannot be said that under any circumstances, the ymca is a State or an instrumentality of the State falling under the definition of article 12 of the Constitution of India.
( 9 ) I have considered this issue in w. P. NO. 18439/95, dated 27-09-1995, wherein the services of an employee, by the management of a private trust, have been terminated and he approached this court for necessary relief. The writ petition was dismissed on the ground that a writ petition is not maintainable against a private individual when no public duty is sought to be enforced by him.
( 10 ) IN another W. P. No. 96 of 1995, dated 31-10-1995, I have considered the matter elaborately and held that the Grama swarajya Sangham is not a State nor an instrumentality of the State.
( 11 ) THE decision of the Supreme court in Andi Mukta Sadguni Shree Muktajee vandas Swami Suvarna Jayanti Mahotsav smarak Trust v. V. R. Rudani (7) (1989) 2 scc 691 wherein it was held: That if the rights are purely of a private character no mandamus can be issue
