1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Bhanwar Singh & Ors. v. State of Rajasthan & Ors. S.B.CIVIL WRIT PETITION NO.1320/2005 under Article 226 of the Constitution of India. Date of Order :: 17th December, 2008 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. M.Mridul, Sr.Advocate with Mr. P.S.Chundawat, for the petitioners. Mr. Rajesh Joshi] Mr. V.K.Mathur ] for the respondents. Mr. C.S.Ojha ] .... BY THE COURT : The Rajasthan Financial Corporation and the Rajasthan Industries Investment Corporation are the government companies incorporated under the Indian Companies Act. The Regional offices of the companies aforesaid and the District Industries Centre, Jodhpur, an office under the Industries Department of the Government of Rajasthan are housed in a common campus 2 known as Udhyog Bhawan, New Power House Road, Jodhpur with a purpose to provide all requisite assistance for industrial development to the entrepreneurs under one roof. The Rajasthan Financial Corporation and the Rajasthan Industries Investment Corporation Limited agreed to bear all expenses relating to the construction and the maintenance of building concerned. A decision was also taken to constitute a society in the name of Udhyog Bhawan Common Facility Society for development, promotion, maintenance of Udhyog Bhawan Campus. It is pertinent to note that at the first instance the concept to house all the agencies of the government providing assistance in industrial development was implemented at Jaipur and in pattern of that Udhyog Bhawans at various places in the State are also developed. A society in the name of “Udhyog Bhawan Common Facility” was first created at Jaipur. This Court in Babulal Saini v. Rajasthan Financial Corporation & Ors., reported in WLR 1992 (S) Raj 198, while considering an issue regarding status of “Udhyog Bhawan Common Facility”, held the same as an instrumentality of the State. The discussions made and the finding given in this regard in the case aforesaid by this Court reads as follows:- “I have heard both the parties and have also gone through the pleadings and documents 3 placed on record. So far as the question of maintainability of writ petitions are concerned, it is evident from the facts mentioned above that UBCF has been created by respondents No.1 to 4 to provide themselves with such services, which are needed by all of them. They are occupying premises of Udhyog Bhawan and a device has been found out to maintain the building and to have an agency to serve them to avoid separate arrangement by each of the respondents No.1 to 4 for the same purpose. This perhaps has been done with a view to economise on the expenses. However, it is clear that the funds are contributed equally by respondents No.1 to 4 for paying salary to employees of UBCF and other expenses involved in the process. A Registrar of UBCF is also nominated by rotation, who exercises day-to-day control on the employees of UBCF. It is also evident that Committee of Directors of UBCF has been formed, in which the Managing Director/ another top official of respondents No.1 to 4 work as Directors and one of them by rotation is nominated Convener of UBCF to have over all administrative control on the employees of UBCF, as is evident from Anx.1 dated 10.3.87. Thus, all the funds are paid by respondents No.1 to 4, each of whom evidently is an instrumentality of State, as had been held by this Court in several cases. Merely because UBCF is not registered body, it does not loose its character of being an Agency created by respondents No.1 to 4, each one of whom is itself covered by the definition of instrumentality of State. Even schools receiving 80% grant from State Government have been held to be amenable to writ 4 jurisdiction of the courts. It may be pointed out that the concept of instrumentality or agency of Government is not limited to a corporation created by a Statute, but is equally applicable to a Company or Society or Organisation and, in a particular case, it would have to be decided on a consideration of relevant factors whether the Company/ Society/Organisation is an instrumentality or agency of Government so as to come within the meaning of expression “Authority” under Article 12 of the Constitution of India. The Apex Court in Ramana Davaram Shetty Vs. The International Airport Authority of India & others (AIR 1979 SC 1628) laid down certain tests for determining as to when an Agency/ Company/Society may be said to be an instrumentality or Agency of Government. These tests include :- (a)All, 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. (b)Existence of deep and pervasive State control may afford an indication that the Corporation is a state agency or instrumentality. Both the conditions enumerated above evidently are applicable with full force to UBCF-an Agency created by respondents No.1 to 4. It has been held time & again by the Supreme Court as well as this Court that the 5 expression “other authorities” in Article 12 must be given a broad and liberal interpretation where constitutional fundamentals vital to maintenance of human rights are at stake and functional realism and not financial cosmatic must be diagnostic tool. Therefore, I do not find any reason why UBCF cannot be held to be an instrumentality of State when the complete finance and control over the employees remains in hands of respondents No.1 to 4, whose officials function on the post of Convener, Director and Registrar etc. from time to time by rotation. I am, therefore, of the considered opinion, that the respondent No. 5 UBCF is an instrumentality of State within the meaning of Article 12 of the Constitution of India and is amenable to writ jurisdiction of this Court.” A “Udhyog Bhawan Common Facility Society” was also constituted at Jodhpur with the same objects as are of “Udhyog Bhawan Common Facility Society, Jaipur”. The Udhyog Bhawan at Jaipur as well as at Jodhpur are maintained by the respective societies. The only difference is that the Udhyog Bhawan Common Facility Society at Jaipur is a registered body whereas the issue relating registration of society at Jodhpur is pending consideration. An application in this regard has already been submitted to the Registrar, Cooperative Societies by a competent committee of Udhyog Bhawan Common Facility Society, Jodhpur. 6 The petitioners are working as Chowkidars/ Class-IV employees with Udhyog Bhawan Common Facility Society at Jodhpur. They are getting pay in the regular pay scales applicable for the posts of Class- IV employees with fixation at minimum of the pay scale. The grievance of the petitioners is that the respondents are not extending the service benefits to them which are already given to the employees working with Udhyog Bhawan Common Facility Society, Jaipur. Hence, this petition for writ is preferred with the prayer as follows:- “I. The Respondents be directed to comply with the requirement of Section 14 of the Employees Provident Fund Act, 1952 and deposit their part of P.F. with interest on and from and as and how it was payable but was not paid till it is paid at a penal rate. II. The Respondents may kindly be directed to provide all the facilities to the Petitioners such as supply of uniforms, shoes, torch, whistle, etc. as also the benefit of grant of selection grade on completion of their 9 years services as are being allowed to the employees of Jaipur at UBCF and pay them all that was payable but has not been paid with interest at the rate of 18% p.a. as and how the same became payable but was and has not been paid on and from the date the same became payable but was not paid till it is paid. 7 III. The Respondents be directed to pay by way of compensation appropriate amount for denying facilities as aforesaid for all these years as facilities cannot now be provided for the period for which the same were required to be provided. IV. The Respondents may also be directed to grant all the benefits to the Petitioners so granted by the State Government to its employees during this year with interest @ 18% p.a. on and from the date it becomes due till the same is paid.” It is stated by counsel for the petitioners that the Udhyog Bhawan Common Facility Society, Jaipur as well as Udhyog Bhawan Common Facility Society, Jodhpur are the societies with the same objects and both are creation of a decision of the Government of Rajasthan. Both the societies are funded by the Rajasthan Financial Corporation and Rajasthan Industries Investment Corporation and as such both are instrumentality/agency of the State of Rajasthan. The only difference is that the society operating at Jaipur is registered one whereas the society operating at Jodhpur is not registered body. According to counsel for the petitioners the factum relating to registration of the society cannot be a reason for making any discrimination among the employees working with the Udhyog Bhawan Common Facility Society at Jaipur or at Jodhpur. 8 Per contra, the stand of the respondents is that the Udhyog Bhawan Common Facility Society, Jodhpur and the Udhyog Bhawan Common Facility Society , Jaipur are two different legal bodies and the service conditions of the employees working with the societies concerned cannot be compared with. It is stated that so far as the Udhyog Bhawan Common Facility Society, Jaipur is concerned, that is a registered society whereas the society at Jodhpur is only an unregistered society and as such the employees working with that cannot be compared with the employees working with the Udhyog Bhawan Common Facility Society, Jaipur. Heard counsel for the parties. The Udhyog Bhawan Common Facility Society, Jaipur was constituted under a decision of the Government of Rajasthan to maintain smooth functioning of Udhyog Bhawan where the Government provided single roof to all government bodies operating for industrial development of the State. With the same object the Udhyog Bhawan was established at Jodhpur, wherein the Rajasthan Financial Corporation, Rajasthan Industries Investment Corporation and the District Industries Centre are discharging regular duties and other ancillary activities. The Udhyog Bhawan Common Facility Society, Jodhpur was also constituted for 9 smooth maintenance and development of the Udhyog Bhawan and other activities connected thereto. It is true that the Udhyog Bhawan Common Facility Society, Jodhpur is not a registered society but at the same time it is also not in dispute that the society at Jodhpur is also a creation of a decision of the Government of Rajasthan in consultation with the Rajasthan Financial Corporation and the Rajasthan Industries Investment Corporation. The purpose and objects of the Udhyog Bhawan Common Facility Society, Jodhpur as well as at Jaipur are same. The employees working with the Udhyog Bhawan Common Facility Society, Jaipur and Jodhpur are discharging similar kind of duties to achieve the same object i.e. proper maintenance of Udhyog Bhawan and other activities connected thereto. The respondents in most unambiguous terms accepted in their reply that the Udhyog Bhawan Common Facility Society, Jodhpur was constituted on the pattern of the Udhyog Bhawan Common Facility Society, Jaipur and both are under the control of the standing committee constituted by the Department of Industries in consultation with the Rajasthan Financial Corporation and the Rajasthan Industries Investment Corporation. The concept of equality in part-III of the Constitution of India is neither formal nor imaginary, but a real one. To eliminate discrimination and achieve equality, the policy makers must understand 10 that the mandate of the Constitution is to ensure equality and classification is an exception. The classification is permissible only if that is based on an intelligible criteria. No permission can be given for favorism or exploitation in the name of classification. In the case in hand the societies working at Jaipur and Jodhpur were established with same aims and objects. The participating agencies in the society are also same and both the societies are funded by a common pool created by the Rajasthan Financial Corporation and the Rajasthan Industries Investment Corporation. The classification sought to be made among the societies is absolutely illusory. In such circumstances, any discrimination regarding service conditions of the employees of the Udhyog Bhawan Common Facility Societies merely on the count that one among those societies is not registered shall be in violation of Article 14 of the Constitution of India. There is no just and valid reason for not providing the same service conditions for the employees of the Udhyog Bhawan Common Facility Society, Jodhpur as are available to the employees working with Udhyog Bhawan Common Facility Society, Jaipur. In view of it, this petition for writ is allowed. The respondents are directed to treat the petitioners and other employees of the Udhyog Bhawan Common Facility Society, Jodhpur at the same pedestal 11 with the employees of the Udhyog Bhawan Common Facility Society, Jaipur and the service conditions relating to the employees working with the Udhyog Bhawan Common Facility Society, Jodhpur including the petitioners be made at par with the service conditions of the employees working with the Udhyog Bhawan Common Facility Society, Jaipur. No order to costs. ( GOVIND MATHUR ),J. kkm/ps.