JUDGMENT Rakesh Tiwari, J.
1. Heard Sri Ashok Khare, Senior Advocate assisted by Sri S.K. Gupta for the petitioners and Sri Ashok Mehta for the respondents and also perused the record.
2. This writ petition has been filed for a direction in the nature of certiorari for quashing the notice issued by the Surveillance Officer, National Polio Surveillance Project, Azamgarh Unit, Azamgarh as published on the notice board on 23.6.2003 and all the proceedings in pursuance thereto. Further a direction has also been sought commanding the respondents to permit the petitioners to function as Block Monitors under the National Polio Surveillance Project at Azamgarh Unit, Azamgarh, not to cause any interference in such functioning and to pay the petitioners their regular monthly salary and conveyance allowance as has been paid till the month of June, 2003, regularly every month.
3. An indo-Danish Government agreement on Danish support to the pulse polio campaign in India was signed in May 1996. The Danish grant included supply of vaccine and cold chain equipment, support to development of immunity surveillance system and support to a Polio Surveillance System (PSS) for the whole of India. In August 1996 an agreement was signed with World Health Organization (WHO) country office in India according to which, the WHO country office is assisting the Government of India (GOI) with implementation of the Pulse Polio Surveillance Scheme (PSS). The Assistant Commissioner for Project Implementation Programme (PIP) in the Ministry of Health and Family Welfare (MOH & FW) is in charge of implementing the PSS assisted by a national level epidemiologist from WHO. According to the Project Organization the PSS project is implemented by the MOH & FW in collaboration with the WHO country office. The Danish Government (DANIDA), U.S. AID and Rotary international provided financial support to the implementation of the PSS. WHO's technical assistance is provided through a complimentary PSS project organization. A central office-the National Surveillance Unit (NSU)- is establishes in Delhi with office space provided by the GOI. The National Surveillance Unit works with the Assistant Commissioner responsible for surveillance. A network of (project) surveillance officers was established to assist with the integration and strengthing of polio (and other diseases) surveillance activities at State and district levels for which Regional Surveillance Medical Officers (RSMO) were placed in 7 "regions" and 40 Surveillance Medical Officers (SMO) plus 12 Assistant Surveillance Medical Officers (ASMO) were placed at State level. The WHO representative to India has overall responsibility for the project with power to delegate the project implementation to the national level epidemiologist as incharge of the PSS. The national level epidemiologist is to be assisted by the National Surveillance Unit, including a National Surveillance Coordinator (WHO posting). The Administration and Accounts Coordinator, who will be guided on administrative and financial matters by the WHO country office, will function as the day-to-day administrator of the PSS. All staff in the National Surveillance Unit and all RSMOs, SMOs and ASMOs are to report to the national level epidemiologist. RSMO's, SMO's and ASMO's driver and administrative assistant would report to the RSMO, SMO or ASMO.
4. Sri Ashok Mehta, the counsel appearing for the respondents at the out set has raised a preliminary objection on the following grounds:-
1. The Government of India and the World Health Organization are necessary parties to the writ petition but the writ petition has been filed without impleading them as a party to the petition;
2. Respondent Nos. 1 and 2 i.e. Project Manager, National Polio Surveillance Project and the Surveillance Medical Officer, National Polio Surveillance Project, Azamgarh Unit, Azamgarh are not State within the meaning of Article 12 of the Constitution of India; and
3. The World Health Organization has been given privileges and immunities only by the United Nations by resolution 179 (II) adopted on 21st November, 1947 by the General Assembly.
5. Act No. (XLVI of 1947) is an act to give convention on the privileges and immunities of the United Nations by the International Civil Aviation Organization and their representatives and officers. Government of India, Ministry of External Affairs, New Delhi on 16th December, 1948 issued a notification in exercise of powers conferred by Section 3 of the United Nations (Privileges and Immunities) Act, 1947 (XLVI of 1947) which provides that the provisions of the Schedule to the said Act shall apply mutatis mutandis to the World Health Organization and their representatives and officers; hence respondent Nos. 1 and 2 to have enjoyed immunity from legal process of every kind. Relevant provisions granting immunity under Article IV Section 11(a) is as under:-
"(a) Immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind."
6. The case of the petitioners is that the National Polio Surveillance Scheme had been set up by the Government of India in collaboration with (WHO) World Health Organization and was operational since October 1997. It has been set up to ensure that all cases of Polio are detected, reported, investigated and controlled. The aforesaid project also overseas and supervise the mass immunization of polio campaign which is implemented through the agency of different State Governments. For implementing the surveillance work the National Polio Surveillance Project appoints Block Monitors for monitoring the work pertaining to immunization and control of polio in respect of development blocks.
7. Petitioner Nos. 1 to 4, 6 and 7 were engaged as Block Monitors w.e.f. 24.10.2002 while petitioner No. 5 was engaged from 1.4.2003 in different development blocks of district Azamgarh. They were also issued identity cards which have been appended as Annexure-2 to the writ petition. It is claimed by the petitioners that they have been continuously working from the date of their initial engagement i.e. 24.10.2002 and have been imparting training for discharging the work of block monitors. It is alleged that each of the petitioner has functioned and discharged all duties till 22.6.2003. They were paid their dues and were directed not to discharge any further work as block monitors. The petitioners claim that the work under the surveillance scheme continue to exist and the National Polio Surveillance Project continuous to receive the requisite funds for manning the unit at district level from the Central Government and the World Health Organization also but they have not been engaged. On the contrary a notice by the Surveillance' Officer, Azamgarh unit was published on the notice board of his office notifying the requirement of candidates for discharging field work in the aforesaid project. The notice has been appended as Annexure-4 to the writ petition which is as under:-
"VACANCY Requirement of young energetic dedicated candidates for field work in NPSP-WHO for pulse polio eradication programme.
This is a temporary job on daily basis for three months period. Minimum qualification is graduation; science graduate with biology will be preferred. Preference in health projects field job will be added advantage.
Interview will be held on 10.00 A.M. on 25.6.2003 in NPSP-WHO Unit, District Female Hospital, Matbarganj, Azamgarh."
8. It is stated that the interviews scheduled for 25.6.2003 did not take place and a subsequent notice was issued on the same date i.e., 25.6.2003 postponing the interview convened for 25.6.2003 till further orders.
9. No subsequent date has been fixed for holding any interview nor any selection has actually been made.
10. The contention of the counsel for the petitioners is that it is clear from the notice that apart from work of block monitors there does not exist any other work requirement or field work under the National Surveillance Project at the district level and there is no justifiable reason for dispensing with the services of the petitioners and simultaneously proceedings for holding fresh selection for making appointment for discharging the work for which the petitioners have been engaged. It is further submitted that the practice adopted by the respondents authorities of making appointment and replacing such appointees by appointment again in temporary capacity, is wholly arbitrary and unreasonable and can not be justified on any logic.
11. An ad-interim mandamus was issued by this Court on 2.5 8.2003 to the opposite parties to desist from making fresh appointments in pursuance of the advertisement (Annexure-4 to the writ petition) till the next date fixed in the case. When the matter was listed on 29.7.2004, none had appeared to press the petition and it was dismissed for non-prosecution. It is being heard today on merit on a recall application as the' counter and rejoinder affidavits have already been exchanged.
12. Sri Mehta, the counsel for the respondents has further placed Project Implementation Plan (PIP) for the Surveillance Component of 'he Pulse Polio Campaign in India, 1996-2000 and submits that the project is not funded by the Government of India i.e. it has no state fund. The National Polio Surveillance Project has no concern with the actual Immunization Project but its officers only do surveillance work i.e. collection of data and preparation of report etc. It is further submitted that the funding is done in collaboration with the Government under an agreement.
13. It is also submitted that the National Pulse Polio Surveillance Project cannot said to be financially, functionally and administratively dominated by or under the control of the Government of India. A writ petition would lie only when the petitioner is able to establish that his right or some other legal right has been infringed. Reference in this regard may be made to Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B., AIR 1962 SC-1044. Sri Ashok Khare, senior counsel appearing for the petitioners in reply to the preliminary objection submits that the Assistant Commissioner for PIP in the Ministry of Home and Family Welfare is in charge of the implementing the pulse polio surveillance scheme by National level epidemiologist from WHO as such writ petition is maintainable.
14. It appears from the record that epidemiologist is appointed on a contract basis. Attention of the Court has been 'drawn to Annexure-4 to the counter affidavit which is an offer of appointment of Medical Officer (Epidemiologist) dated 5th July, 2002. The following appear from the record:-
1. The petitioners were not appointed by the State, Government of India or World Health Organization and neither the engagement of the petitioners was on daily wage basis or temporary;
2. The Government of India as well as WHO which are necessary parties have not been arrayed as parties to the writ petition;
3. The petitioners were never appointed against any post in Project and they have failed to establish that there was any post on which they were appointed;
4. They have no right to the post being a daily wagers; and ;
5. The officers in the project working on behalf of the WHO enjoyed immunities under Act No. XLVI of 1947 from legal process of every kind.
15. In para 6 in the case of Praga Tools Corporation v. C.V. Imanual, AIR 1969 SC 1306 the Hon'ble Supreme Court construed Article 226 to hold that the High Court could issue a writ of mandamus "to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest." Relying upon Sohan Lal v. Union of India, AIR 1957 SC-529 the Apex Court has held in para 6 that:
"An application for mandamus will not lie for an order of reinstatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute."
16. To the same effect is the case of G. Bassi Reddy v. International Crops Research Institute (2003) 4 SCC-225. The question whether WHO would be the "State" or "authority" can be considered in the light of the judgment of the Apex Court in similar circumstances in the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 SCC-111. In para 40 it has been held by the Apex Court that:
"The question in each case would be- whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State."
17. The identity cards are issued to the petitioners to enable them to have ingress and egress in the establishment. Appointment of the Government servant on the basis of identity card cannot be inferred until and unless there is concrete evidence of recruitment in accordance with Rules.
18. The petitioners have admittedly not been issued appointment letters. It can be inferred from the subsequent advertisement of vacancies impugned in the writ petition that appointment for surveillance is temporary and for a specific period in a project under the scheme. The notice against which the petitioners have come in this writ petition was only for engagement of temporary hands for a period of three months. Admittedly, even according to the case of the petitioners no subsequent interview in pursuance of the notice has taken place and no one has been appointed. There is no material before this Court that the project in which the petitioners were appointed is continuing and in any event, the petitioners have failed to prove that their engagement was permanent or they have been appointed against any post hence, they cannot be granted any mandamus directing the respondents to continue them in service.
19. From the records and facts narrated above, it is clear that National Polio Surveillance Project Scheme has not financially, functionally and administratively dominated by Government of India. Pulse Polio Surveillance Scheme is a complimentary project organization which is being assisted for implementation by the Government through a surveillance unit and is provided space for office at New Delhi under an agreement between the Ministry of Health and Family Welfare and country office of WHO and the Danish Government. The WHO provides its services voluntarily to a large number of countries besides India. It is neither controlled by the Government of India nor the WHO is accountable. It has not been set up by a statute nor are its activities statutorily controlled. The activities of the WHO are not confined to India only but its functions are similar to or closely related to those performable by the State in its sovereign capacity though Indian public may be beneficiary of the activities of the WHO. Therefore, in the instant case writ petition under Article 226 of the Constitution is not maintainable as it has not been filed against a person or a statutory body which performs a public function or discharge public or statutory duty.
21. Furthermore the officers of the WHO have been granted immunisation by the Government of India, External Affairs from any legal process vide Notification dated 16.12.48. The petitioners could not establish any legal right for relief claimed by them. They have no legal right to a post, as they were never appointed against a post.
22. For the reasons stated above, the writ petition is dismissed. No order as to costs.