- (1.) SINGHVI, J. - In this writ petition the petitioner has prayed for quashing order of termination of his service and for issuance of order of appointment on regular basis as well as payment of salary in the regular pay scale with effect from 10. 9. 90.
(2.) THE petitioner's case is that he was initially appointed on the post of Instructor in the service of Gemstones Artisans Training School on being appointed as such by an order dated 28. 8. 89 issued by the Regional Convener, Gem and Jewellery Export Promotion Council (for short the Council ). This appointment was preceded by a regular selection. THE petitioner was, however, forced to submit his resignation on the assurance that he will be absorbed in the service in the next Session. An advertisement dated 19. 7. 90 was issued by the Gem Stones Artisans Training School in Rajasthan Patrika for the purpose of Instructors. THE petitioner was interviewed by a Selection Committee on the basis of his application, which he had submitted in pursuance to the advertisement dated 19. 7. 90. According to the petitioner he was selected in the interview and was appointed with effect from 10. 9. 90. However, no letter of appointment has been given to him and he was paid wage @ Rs. 60/- per day and not in the regular pay scale prescribed for the post. He was told that the appointment letter will be given after completion of formalities. No letter of appointment was, however, issued by the petitioner even thereafter and suddenly on 1. 7. 91 he was asked to submit his resignation, as had happened earlier. This time he refused to abide by the wishes of the respondents and therefore, he has been verbally told by the Principal of School that his services will not be continued beyond 5. 7. 91. THE petitioner has sent a telegram dated 2. 7. 91 against this action of the respondent No. 2. In the meantime another advertisement was issued by the respondent No. 2 in the Rajasthan Patrika dated April, 91 Since the petitioner was already in the service he has no occasion to apply for appointment. One Shri Arun Sharma has been selected and then appointed as Instructor in the regular pay scale. Although, the petitioner was appointed earlier to Shri Arun Sharma, but he has not been paid salary in the regular pay scale. The petitioner has challenged the action of the respondents in not giving the appointment on permanent basis and in not giving regular pay scale. His case is that he had applied against the post of Instructor with a legitimate expectancy that after his selection he will be appointed on permanent post and will be paid salary in the regular pay scale. The petitioner has in fact been selected by a duly constituted selection committee. Notwithstanding this, his service has been terminated from 5. 7. 91, even though the posts are still available and the work is also continuing. The petitioner has been subjected to hostile discrimination in as much as Shri Arun Sharma has been appointed on regular basis and has been given salary in the regular pay scale. This action of the respondents has resulted in violation of fundamental rights of the petitioner, guaranteed to him by Articles 14 and 16 of the Constitution. Additional Affidavit dated 12. 7. 91 has been filed by the petitioner in which he has stated that the Gem and Jewellery Export Promotion Council has been sponsored by the Ministry of Commerce, Government of India. 80% of the funds of the Council are provided by the Central Government and the Central Government also provides fund for the School run by the said council. The Budget of the Council is passed by the Ministry of Commerce and the Council cannot incur any expenditure outside the budget. The policy decisions are taken by the Central Government and the same are implemented through the Council. All the actions of the Council are required to be approved by the Ministry of Commerce, Government of India. All salaried posts in the Council and the School are sanctioned by the Ministry of Commerce, Government of India. The appointment of the Secretary of the Council has to be approved by the Ministry of Commerce. Similarly, the appointment of the Principal of the School has also to be approved by the Ministry of Commerce, Government of India. Rules of the Central Government are applicable for regulating the conditions of service of the employees of the Council and the school. The Petitioner has also stated that the statement contained in the order dated 5. 7. 91 is not correct. In fact there one post of Sr. Instructor (pay scale starting from 2200/-) was vacant. That was filled by promoting Shri Sajid Ali. Shri Sajid Ali was working as Instructor in the pay scale starting from Rs. 1460 -. That post was filled by promoting Shri Surendra Khadiya. His post carrying starting salary of Rs. 1200/- and has thus fallen vacant and Shri Arun Sharma has been absorbed against that post.
(3.) THE respondents have filed reply to the writ petition in which it has been started that the respondent Council is the parent body of the School and under its guidance the school functions. THEre is a Local Advisory Committee headed by a Regional Convener of the Council, who looks after its management. THE respondent Council is a Company duly incorporated and registered in the year 1966 under the Indian Company Act, 1956. It is neither a State nor an instrumentality of the State. It does not come within the scope of the term 'other authorities' used in Article 12 of the Constitution of India. THE activities of the Council are neither controlled nor directly governed by Government of India (Ministry of Commerce ). THE respondent Council is not engaged in any statutory activities. It is not a statutory body created or set up under any statute. THE Counsel has in fact been floated by the individuals as per the Memorandum and Articles of Association. THE main source of the 'funds of the Company comes from the membership subscriptions, donations and other activities. Grant-in-aid is also received from the Government of India, Ministry of Commerce. It has then been stated that the affairs of the Council are controlled and managed by the "working Committee" consisting of 34 members, out of which only 3 are the nominees of the State. Since the Council is engaged in the promotion and research for the benefit of Gem and Jewellery Industry and to advise or represent to the Government in respect of this industry, the Council is bound by instructions as well as direction given by the Government of India. Respondent School has been set up by the Council in order to impart technical to know how on Gem Cutting and polishing to the students so that trained persons may be available to the industry. It has further been stated that although all the proposals are prepared by the Council and submitted on the Working Committee and the Union Government and all expenses are incurred on sanction by the Working Committee in consultation with the Union Government but this exercise is done only with the object that the Government of India shall feel satisfied that the grant-in-aid given by it is utilized properly and in a responsible manner and for the purpose of achieving object of the Council. THE respondents have raised other objections about maintainability of the writ petition by urging that the petitioner has not completed 240 days in the service and therefore, was not entitled to the benefit of provisions contained in the Industrial Disputes Act, 1947. A preliminary objection about maintainability of the writ petition has been raised by learned counsel for the respondents. They have argued that the respondent Council is neither a creature of statute nor it is an agency of the State. It does not discharge any sovering, regal or governmental functions. Its functioning is not of public nature and activities of the Council and the School do not affect the public at large. It is also their argument that the Government of India does not have any direct control over the working of the Council. The Council is not engaged in any activity, which was being previously carried out by a department of the Government of India. The Government of India does not provide 100% finances to the Council or to the School. Funds are arranged by the Council also. On that premise it has been submitted that no writ could be issued in favour of the petitioner for his re-employment/reinstatement or for enforcement of his so called fundamental rights. Shri P. K. Sharma, learned Counsel for the petitioner on the other hand argued that the Council is fully controlled by the Government of India (Ministry of Commerce ). Huge funds are provided by the Government of India. The Government of India keeps full control over the working of the Council. Therefore, it must be held to be an instrumentality of the State and it must be held to be a body covered by the scope of the term "other authorities" as used in Article 12 of the Constitution of India. It is an admitted position of both the parties that the Council is a body registered under the Companies Act, 1958. The Council was formed by 8 individuals who applied for registration of the Council under the Companies Act as its subscribers. These persons were : ;