- (1.) D. K. Seth, J. The petitioner claims to be Group-B employee in the Institute of Engineering and Rural Technology (hereinafter referred to as the 'i. E. R. T' ). It is alleged by Mr. Sanjiv Singh, learned Counsel holding brief of Shri Namvar Singh, learned Counsel for the petitioner that although the petitioner was engaged as Accounts Clerk but in fact he used to work as Accountant which is evident from various certificates issued by the authorities which are annexed to the writ petition and also to the Supplementary Rejoinder-Affidavit.
(2.) IN paragraph 10 of the supplemen tary-affidavit supporting the amendment application it has been contended that the petitioner was Accountant and not Ac counts Clerk. IN para 10 of the supplemen tary counter-affidavit rebutting the same, the respondents have admitted that the post of Accounts Clerks have been con verted as Accountants subsequently. Rely ing on this, Mr. Sanjiv Singh, learned Counsel appearing for the petitioner con tends that although the services of the petitioner have been accepted as Account ant, but he is being paid salary of Accounts Clerk. He relied on various decisions namely:-Vijay Kumar and others v. State of Punjab and others, reported in AIR 1994 SC 265: Mangey Ram Sharma v. Engineer-in-Chief Irrigation Department and others, reported' in 1996 AWC 141 ; Sichai Mazdoor Sangh v. State of U. P. and others, reported in 1996 (1) UPLBEC 9 ; D. B. Sharma v. Union of INdia, reported in 1996 ALJ 855 and Sisir Kumar Mohanty v. State of Orissa and another, reported in 1966 SCC (Lands) 754. Relying all these cases, Mr. Singh contends that in the facts and circumstan ces of the case, Article 14 of the Constitu tion of India has been violated in the mat ter of grant of scale to the petitioner in view of the principles of equal pay for equal work, as enshrined under Article 39 (d) of the Constitution. Therefore, the prayers made in the writ petition as amended subsequently be granted to the petitioner. Mr. Rahul Srivastava, learned Counsel for the I. E. R. T, on the other hand, raised a preliminary objection to the maintainability on the writ petition on the ground that the engagement of the petitioner has been made in the private capacity of I. E. R. T. Therefore, I. E. R. T. is not a State within the meaning of the Ar ticle 12 of the Constitution so far as its relation with the petitioner is concerned. Therefore, no relief can be granted to the petitioner as claimed by him. He further contends that I. E. R. T. is a Society registered under the Societies Registra tion Act which undertakes imparting of education in Engineering and Rural Tech nology. The teaching staff required for the purpose of carrying out the object arc being paid salary from the fund provided by the State Government, provided all posts are sanctioned by the State Govern ment. None of the staff who do not come within the sanctioned post are eligible for payment of salary provided by the State Government, therefore, two groups of staff have been classified namely Group-A and Group-B. Group-A consists of those posts which have been sanctioned by the State Government and the pay of whom are being provided from the funds sanc tioned by the State Government. Group-B consists of those staffs who have been engaged by the I. E. R. T in its private capacity in order to carry out different projects. The funds are generated from other sources and not provided by the State Government. According to him so far as the projects undertaken by the I. E. R. T. is concerned; it is not a function which brings the I. E. R. T within the ambit of instrumentality and agency. In fact it has dual existence of the organisation one part of it may be State while the other is not since that part does not satisfy the test as has been laid down in the case of Ramana Dayaram Shetty v. International Airport Authority of India Ltd. , reported in AIR 1979 SC 1928.
(3.) ACCORDING to the learned Counsel for the petitioner, the projects undertaken by I. E. R. T are integral part of the or ganisation itself as such it is a State under Article 12 of the Constitution. Relying on the decision in the case of Vijay Kumar and others (supra) he contends that even part-time Lecturers were directed to be paid minimum salary prescribed for regularly appointed Lecturers as has been laid down in the said case. Whereas in the present case the petitioner, a Group-B employee is a full time regular employee as such he is eligible for equal pay for equal work in the scale of Accountant. The fact remains that the I. E. R. T. in its existence has dual capacity. So far as the Groupa employees are concerned even though may satisfy the test laid down in the case of Rama Dayaram Shetty (supra) but admittedly the part of its that employ the Group-B employees does not fulfil the said test. The organisation may be capable of maintaining two existence. Even if it is a State with regard to Group-a employees (though I have not decided the said question because it is not necessary to decide the same in the present context) even then it might undertakes certain ex ercises in the realm of private undertaking which may not render it to be an in strumentality and agency. Inasmuch as ad mittedly the I. E. R. T. undertakes some projects financed from other sources and in order to carry out the said project it engages employees in its private capacity. The dual existence of such organisation can well be accepted. The engagement of employees in private capacity cannot alter the situation because it might be the in strumentality in respect of Group-A employees. If such a distinction can be said to be existing in that State of affairs, the I. E. R. T, cannot be said to be state under Article 12 of the Constitution so far its relation with the Group-B employees are concerned. If it is not an instrumentality and agency in its relation between itself and Group-B employees, in that event it is not amenable to writ jurisdiction with regard thereto. In the event it is not amenable to writ jurisdiction the question, though vehemently pleaded by Mr. Sanjiv Singh, cannot be interfered with by this Court in exercise of writ jurisdiction when it cannot invoke the same against the respondents with regard to its relation with Group-B employees. Therefore, this Court cannot help Mr. Singh's client. In that view of the matter, it is not necessary to refer to and rely upon the decisions cited by Mr. Singh at the Bar, which cannot be attracted in the case of private contract between I. E. R. T. and the petitioner when the former engaged the petitioner in its private capacity not being governed under any statutory rules and in parts not being sanctioned by the State Government.;