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2004 DIGILAW 1495 (RAJ)

Shrawan Kumar Sharma v. State of Rajasthan

2004-10-12

SUNIL KUMAR GARG

body2004
JUDGMENT 1. - The petitioner has filed the present writ petition under Article 226 of the Constitution of India on 28.11.2002 against the respondents with a prayer that by an appropriate writ, order or direction the respondents may be directed to allow the petitioner to resume his duties as Circle Organizer (C.O. Scout). 2. It arises in the following circumstances : i) That the petitioner was appointed as Circle Organizer (C.O. Scout) for a period of six months on purely temporary basis by the respondent No. 1 (Secretary, Rajasthan Rajya Bharat Scout and Guide, Jaipur) vide order dated 17.7.1997 (Ex. 1). ii) That in pursuance of order dated 17.7.1997 (Annexure-1), the petitioner joined his duties on 21.7.1997. A copy of the joining report is marked as Ex. 2. iii) That thereafter a dispute arose and the petitioner submitted his resignation to the respondent No. 2 (Mandal Secretary, Rajasthan Rajya Bharat Scout and Guide) Mandal Mukhyalaya, Jodhpur) through application dated 5.9.1997 (Ex.3) stating that his resignation be accepted w.e.f. 10.10.1997. iv) That the application (Ex.3) dated 5.9.1997 was forwarded by the Respondent No. 2 (Mandal Secretary, Rajasthan Rajya Bharat Scout and Guide, Mandal Mukhyalaya, Jodhpur) to the Respondent No. 1 (Secretary, Rajasthan Rajya Bharat Scout and Guide, Jaipur) through communication dated 18.9.1997 (Ex.4). v) That further case of the petitioner is that before his resignation could have been accepted, he withdrew his resignation through application dated 20.9.1997 (Ex.5). vi) Further case of the petitioner is that he applied for medical leave from time to time which is evident from the communication dated 18/21.10.1997 (Ex.6) issued by the Mandal Secretary (respondent No. 2). vi) That further case of the petitioner is that in the meanwhile, he was transferred from Jaisalmer to Pali vide order dated 29.11.1997 (Ex.7) in place of one Shri Sharad Kumar. vii) Further case of the petitioner is that through letter dated 17/20.2.1998 (Ex.8) issued by the respondent No. 2 (Mandal Sachiv), the petitioner was asked to join the duties within 7 days. He was further asked to join the duties through letter dated 28.2.1998 (Ex.9) issued by respondent No. 2 (Mandal Sachiv). viii) That further case of the petitioner is that he submitted an application dated 28.2.1998 (Ex.10) to the respondent No. 2 (Mandal Sachiv) stating that the letters (Ex. He was further asked to join the duties through letter dated 28.2.1998 (Ex.9) issued by respondent No. 2 (Mandal Sachiv). viii) That further case of the petitioner is that he submitted an application dated 28.2.1998 (Ex.10) to the respondent No. 2 (Mandal Sachiv) stating that the letters (Ex. 8 and 9) were not received by him timely and they were received after expiry of time limit and it was further stated in the application (Ex.10) that he was joining the duties within three days. ix) Further case of the petitioner is that thereafter the petitioner offered his services after three days, but he was not allowed to join the duties. Hence, this writ petition with the prayer stated above. 3. Reply was filed by the respondents and they have taken a preliminary objection that the respondent Rajasthan Rajya Bharat Scout and Guide does not fall within the definition of the term "State" as contemplated by Article 12 of the Constitution of India. It has been contended that the respondent- Rajasthan Rajya Bharat Scout and Guide is a society registered under the Societies Registration Act, 1860 and as such it would not amenable to writ jurisdiction and hence, the writ petition be dismissed. 4. Heard. 5. The question as to whether the Rajasthan Rajya Bharat Scout and Guide is a State or an authority for the purpose of Article 12 of the Constitution of India has to be examined. 6. The similar question arose before the Madhya Pradesh High Court in the case of Dr. (Smt.) Mradula Sharma v. Chief Commissioner M.P. Bharat Scouts and Guides, AIR 1995 (Madhya Pradesh) 88 and Madhya Pradesh High Court after discussing the various authorities of the Hon'ble Supreme Court has come to the conclusion that since the M.P. Bharat Scouts and Guides Association was not performing any governmental functions and as such it could not be said to fall under the term "State" or "Authority" as contemplated by Article 12 of the Constitution of India. 7. The Division Bench of this Court in the case of Narain Ram v. Rajasthan Rajya Bharat Scout and Guide Association (D.B. Civil Special Appeal No. 1510/1999, decided on 16.10.2000) has taken the same view. 8. 7. The Division Bench of this Court in the case of Narain Ram v. Rajasthan Rajya Bharat Scout and Guide Association (D.B. Civil Special Appeal No. 1510/1999, decided on 16.10.2000) has taken the same view. 8. The Hon'ble Supreme Court in the case of Ramana Dayaram Shetty v. The International Airport Authority of India, AIR 1979 SC 1628 , laid down some of the tests with a view to decide whether a particular authority is an instrumentality of the State or not. In paragraph 19 some of the facts were highlighted as under:- "Whether there is any financial assistance given by the State, and if so, what is the magnitude of such assistance whether there is any other form of assistance, given by the State, and if so, whether it is of the usual kind or it is extraordinary, whether there is any control of the management and policies of the corporation by the State and what is the nature and extent of such control, whether the corporation enjoys State conferred or State protected monopoly status and whether the functions carried out by the corporation are public functions closely related to governmental functions. This particularization of relevant factors is, however, not exhaustive and by its very nature it cannot be, because with increasing assumption of new tasks. Growing complexities of management and administration and Government calling for flexibility, adaptability and innovative skills, it is not possible to make an exhaustive enumeration of the tests which would invariably and in all cases provide an unfailing answer to the question whether a corporation is governmental instrumentality or agency." It was further observed (at p. 1642 of AIR) : "Moreover even amongst these factors which we have described no one single factor will yield a satisfactory answer to the question and the Court will have to consider the cumulative effect of these various factors and arrive at its decision on the basis of a particularized inquiry into the facts and circumstances of each case. "The dispositive question in any State action case" as pointed out by Dougles, J., in Jackson v. Metropolitan Edison Co., (1974) 419 US 345 , "is not whether any single factor or relationship presents a sufficient degree of State involvement, but rather whether the aggregate of all relevant factors compels a finding of State responsibility." It is not enough to examine seriatim each of the factors upon which a corporation is claimed to be an instrumentality or agency of Government and to dismiss each individually as being insufficient to support a finding to that effect. It is the aggregate or cumulative effect of all the relevant factors that is controlling." 9. Again a Constitution Bench of the Hon'ble Supreme Court in the case of Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487 , formulated certain tests which may enable one to find out whether a particular body is an instrumentality of the State or not. The relevant tests were summarised as under (at p. 490 of AIR) : "(1) "One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government." (2) "Whether 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." (3) "It may also be a relevant factor......... whether the corporation enjoys monopoly status which is the State conferred or State protected." (4) "Existence of "deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality." (5) "If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government." (6) "Specifically, if a department of Govt. is transferred to a corporation it would be a strong factors supportive of this inference of the corporation being an instrumentality or agency of Government." 10. It may be seen that none of the tests as indicated in the above two cases are present in the present case and therefore, the respondent-society cannot be held to be an authority for the purposes of Article 12 of the Constitution of India. 11. It may be seen that none of the tests as indicated in the above two cases are present in the present case and therefore, the respondent-society cannot be held to be an authority for the purposes of Article 12 of the Constitution of India. 11. Thus, for the reasons mentioned above, it is held that the Rajasthan Rajya Bharat Scout and Guide is not a State within the meaning of Article 12 of the Constitution of India and the present writ petition is not maintainable and the same deserves to be dismissed.Accordingly, the present writ petition is dismissed as being not maintainable. However, the petitioner is directed to approach the appropriate forum for redressal of his grievance if any, available to him and if he approaches that forum within a period of one month from today, the law of limitation would not come in his way.Petition dismissed. *******