Gujarat High Court
Gujarat Industrial Security Force ... vs Gujarat Industrial Security Force ... on 18 July, 2025
NEUTRAL CITATION
C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025
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Reserved On : 08/07/2025
Pronounced On : 18/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12712 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 8175 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 1889 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 1999 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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GUJARAT INDUSTRIAL SECURITY FORCE SOCIETY KARMACHARI
UNION & ORS.
Versus
GUJARAT INDUSTRIAL SECURITY FORCE SOCIETY & ORS.
==========================================================
Appearance:
MR AMRISH N PATEL, MR YOGEN PANDYA AND MR IM PANDYA,
ADVOCATES for the Petitioners - Union & Sangh
MS VACHA J NANAVATI(6588) for the Respondent - Society
MS SURBHI BHATI, AGP for the Respondent - State Authorities
MR VYOM H SHAH, ADVOCATE for the Respondent - Raksha Shakti
University
HCLS COMMITTEE(4998) for the Private Respondents
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
CAV JUDGMENT
1. Challenge in these petitions, under Articles 226 of Page 1 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined the Constitution of India, are identical and mainly made to the recruitment process, for the post of Security Guards, initiated by the Gujarat Industrial Security Force Society -
the respondent ('Society' for short) from the year 2012 onward.
2. Heard Mr. Amrish N. Patel, Mr. Yogen N. Pandya, Mr. I.M. Pandya learned advocates for the petitioners, Ms. Vacha J. Nanavati for the contesting respondent - Society, Mr. Vyom H. Shah for - Raksha Shakti University and Ms.Surbhi Bhati, learned AGP for the State Authorities.
3. Since the issue involved in all these petitions is identical, the contentions, averments and submissions are common, therefore, with consent of the learned advocates for the respective parties, all these matters are heard and decided together by this Court.
4. Rule returnable forthwith.
5.1 The learned advocates for the petitioners have mainly contended that the Gujarat Industrial Security Force Society - the Society is a 'State' under Article 12 of the Constitution of India, therefore, the Society is under obligation and required to follow procedure for public Page 2 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined employment and recruitment rules.
5.2 Additionally, it is submitted that any public employment has to be in terms of the constitutional schemes;
and that the post and condition cannot be altered without advertising in the widely public newspaper; and that if any recruitment contrary is made, such recruitment is completely illegal and against the basic rights; and that the Society has no such reservation policy which is part of the recruitment rules; and that it is not desirable to have appointment of retired person's from the police departments as security guards / gunmen; and that even on temporary basis, the post cannot be filled up without there being any advertisement.
5.3 It is further submitted that since the Society is an instrumentality of State under Article 12 of the Constitution of India, it should follow the regular recruitment process by advertising in the public newspaper. In support of the submissions, they have relied upon the decision of the Hon'ble Apex Court in the case of Amrit Yadav versus State of Jharkhand and others reported in 2025 SCC OnLine 280.
It is submitted that these petitions may be allowed.
6.1 Per contra, learned advocate Ms. Vacha J.
Nanavati for the contesting respondent - Society has Page 3 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined vehemently opposed these petitions. She has submitted that the Society is an independent Society and a registered Public Trust under the Societies Registration Act and Bombay Public Trust Act; and that the Society has been established for the purpose of providing security shelter of various Government, Semi-Government, offices/establishments as well as private establishments at reasonable rate and to save the persons so deployed from the exploitation of the private security agencies; and that it is 'no profit, no loss' organisation; and that there is no financial support from the Government; and that the Society is a self-sufficient Society and has to create its own source of income for its activities; and that the recruitments made are in conformity with the object of its Memorandum of Association as it does provide employment to educated unemployed persons, and that since the Society is having valid license under the Private Security Agencies (Regulation) Act, 2005, it is bound to follow the provisions of the Act and Rules thereunder; and that there are no statutory enactments or administrative instructions governing the activities of the Society except the Act, 2005 ('the Act, 2005' for short); and thus, it is a private security agency, therefore, the Society is not a 'State' instrumentality within the meaning of Article 12 of the Constitution of India.
6.2 She has further submitted that this Hon'ble Court Page 4 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined has, time and again, not restrained the recruitment process so as to enable the Society to recruit the educated unemployed persons, but in some cases, subject to outcome of the litigation. The Coordinate Bench of this Court has, vide order 27.07.2021 recorded on Civil Application No.1 of 2021 in Special Civil Application No.8175 of 2018, observed that there cannot be total stall on the recruitment process if such process is sought to be undertaken as per provision of law.
Further, it is also observed that the Society is empowered to appoint Security Guard, as per provision of Section 10(3) of the Private Security Agencies (Regulation) Act, 2005. She has also submitted that the Coordinate Bench of this Court has also clarified vide order dated 09.01.2023 recorded on Civil Application (for clarification) No.2 of 2021 in Special Civil Application No.8175 of 2018, which was preferred by the Union (one of the present petitioners), that it is always open for the Agency (the Society) to give the preference to a person, who belongs or a member of the categories mentioned in sub-section (3) of Section 10 of the Act.
6.3 She has drawn the attention of this Court towards the fact that even those persons, who have failed to secure job in the police department and failed either in written test, ground test or oral interview are appointed as Security Guards or Security Sub-Inspectors in the Society. She has Page 5 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined submitted that as an attempt to train the personnel properly, to enable them to get self-employment at a later stage, the Society also requested the State Officials to give training at the campus which are meant for training State Reserve Police Force Personnel. She has further submitted that as because the help of some Government agencies were taken for the purpose of training, the persons employed by the Society cannot become a State employee, the Society cannot thus become a 'State' instrumentality within the meaning of Article 12 of the Constitution of India.
6.4 She has further submitted that even the State Government has not accepted the Society as his baby, as submitted by the learned Advocate General appearing for the State itself in the proceedings of Special Civil Application No.16360 of 2004 and cognate matters. The submissions denying the Society is a State are recorded by the Coordinate Bench of this Court in those proceedings vide order dated 18.04.2009. Thus, since the State Government on his own disowns to take liability of the Society, the question of deciding the issue as to whether the Society is a 'State' or not does not arise. She has also submitted that not only that even the Society is charging the Government for rendering its services, as and when State Government had taken any work from the Society like deployment of force for election duty or Page 6 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined at the time of State sponsored festivals; like Kite festival or Navratri festivals or programmes like Vibrant Gujarat, etc. 6.5 She has also submitted that since the Society is not a 'State' instrumentality under the meaning of Article 12 of the Constitution of India and this Court has, time and again, clarified that it is open for the Society to make recruitment as per the provisions of the Private Security Agencies (Regulation) Act, 2005, the Society is at liberty to make recruitment of the persons as per its requirement. She has also submitted that the Society always follows the transparent procedure as per the Act and assures that the Society will work without influence of any other authorities in future.
6.6 She has also submitted that these petitions are filed under Article 226 of the Constitution of India. The petitioners have to join the aggrieved persons, if they have grievance against their selection by the Society and as per their submissions canvassed and contentions raised before this Court in these petitions. She has further submitted that this Court is not the proper forum. The proper forum would be the Industrial Tribunal and they have to approach the Tribunal before approaching this Court by way of these petitions. On this ground, these petitions may not be Page 7 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined entertained by this Court.
6.7 She has submitted that these petitions may be dismissed.
7.1 Learned AGP Ms. Surbhi Bhati for the State Authorities has submitted that the Society is a Society registered under the Co-operative Societies Act and is an independent Society and, therefore, is not a 'State' within the meaning of Article 12 of the Constitution of India and, therefore, the present petitions under Article 226 of the Constitution of India are not maintainable and may not be entertained. It is submitted that except acting as a launch pad to form a Society, there is no financial, functional or administrative control of the State over the Society. There is no control either direct or indirect over the functioning of the Society. It is further submitted that the Society has to obtain all the licences under the relevant labour laws. It is further submitted that though the Society was formed with the help of the Government, there is no financial control of the State inasmuch as the State does not contribute anything towards any of the activities of the Society.
7.2 Under instructions, it is further submitted that the functions and duties of the Security Guards of the Society Page 8 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined are absolutely different and distinct. They are not responsible for the maintenance of law and order inasmuch as they are not performing any statutory duties except guarding the establishments at which they are posted. It is submitted that they are not regular employees of those establishments or Government or the police force at all. It is further submitted that they are paid minimum wages as per the notification issued by the Government from time to time.
7.3 It is submitted that these petitions may be dismissed.
8. Learned advocate Mr.Vyom Shah for Raksha Shakti University has adopted the submissions canvassed by the learned advocate for the Society as well as by learned AGP for the State and has submitted that these petitions may be dismissed.
9.1 I have heard learned advocates for the respective parties. I have perused the documents available on record.
9.2 From the record, this Court finds that these petitions have chequered history. The chronology of events and the orders passed by this Court from time to time are as under.
Page 9 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined 9.2.1 Special Civil Application No.12712 of 2013 is filed by the Gujarat Industrial Security Force Society Karmachari Union and ors., wherein the petitioners have mainly prayed as under :
"5(a) Permanently restraining the respondents from making any recruitment of security guards or any other employee without publicly advertising for the posts and holding the regular selection as per the recruitment rules at ANNEUXRE-C to this petition.
(b) The Hon'ble Court please to set aside the recruitments which has been made from October, 2012 onwards.
(c) During the pendency and final hearing and/or final disposal of the present writ petition by way of ad interim / interim order restrain the Respondent No.1 and 2 (the Society) by making any further recruitment of Security Guards or any other employee without publicly advertising for the posts and holding the regular selection as per the recruitment rules at ANNEUXRE-C to Page 10 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined this petition.
(d) The Hon'ble Court please to
direct by way of interim relief to the
Respondent No.1 and 2 for issuing posting orders to the employees who had been replaced by the new recruitment."
9.2.2 Keeping in mind the above reliefs, the Coordinate Bench of this Court has, vide order dated 12.07.2016, admitted the petition and observed as order.
"The petitioner Gujarat Industrial Security Force Society Karmachari Union has filed the present petition making two prayers. The first prayer is to restrain permanently the respondents from making any recruitment to the post of security guards without issuing public advertisement for the said post and holding regular selection process as per the recruitment rules, which are produced at Annexure-C to the petition. The second prayer is to set aside the recruitments, which have been made from October, 2012 onwards.
2. As far as the second prayer is concerned, the same cannot be granted for Page 11 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined two reasons. Firstly, it is a prayer too omnibus to be considered for the relief. Secondly, in any case appointees who are given appointments since 2012 are directly affected parties and they are not joined as respondents. On that count also, the prayer is not liable to be considered. Therefore, this petition as far as the second prayer is concerned, stands rejected.
3. Rule, confined to the first prayer above. Expedited."
9.2.3 Accordingly, the Coordinate Bench has confined the petitioners qua first prayer only. Thus, Special Civil Application No.12712 of 2013 is required to be considered qua first prayer only that 'permanently restraining the Society from making any recruitment of Security Guards or any other employee without publicly advertising for the posts and holding the regular selection as per the recruitment rules at ANNEUXRE-C to this petition'.
9.2.4 With regard to the recruitment rules at Annexure-
C of Special Civil Application No.12712 of 2013 is concerned, Ms.Vacha Nanavati, learned advocate for the Society has submitted that the said rules are only with respect to the Page 12 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined recruitment of the year 1997 and therefore, the requirements stated in that recruitment rules would be binding only to the recruitment process undertaken in the year 1997. Thereafter, the Act, 2005 has come into force and the Society falls under the said Act, 2005. Even the submissions made by the State tilt the balance in favour of the Society that the Society is an independent Society and not a 'State'.
9.2.5 At this stage, reference is made to the prayers made in Special Civil Application No.8175 of 2018, which is filed in the year 2018 by respondent No.5 of Special Civil Application No.12712 of 2013, which are as under :
"11(A) Your Lordships be pleased to issue a writ, order and direction and thereby quash and set aside the recruitment made for the post of security guard and gunman held in May, 2018 and thereby direct the respondent authority to give the public advertisement for the same and thereby to make the recruitment in the interest of justice.
(B) Your Lordships may be pleased to issue a writ of qua-warrant and thereby quash and set aside the appointment which is made by the respondent authority of Page 13 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined Mr.T.D. Suthar on the post of Clerk in the interest of justice.
(C) Your Lordships may be pleased to issue appropriate writ, order and direction and thereby direct the respondent authority not to make any appointment without there being any public advertisement for the same in the interest of justice.
(D) Your Lordships may be pleased to issue appropriate writ, order and direction and thereby direct the respondent authority not to appoint retire police personnel on the vacant post of the respondent authority and the same may kindly be offered to the young unemployed youth by way of public advertisement, in the interest of justice.
(E) Pending hearing and final disposal of this petition, restrain the respondent, their agent and servants from giving any appointment orders on the basis of interview which has been held in May, 2018 for the post of Security Guard and Gunman, in the interest of justice.Page 14 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025
NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined (F) Pending hearing and final disposal of this petition, direct the respondent not to appoint retire police personnel in the service of the respondent authority in the interest of justice."
9.2.6 While issuing notice on the above petition, the Coordinate Bench of this Court has, vide order dated 18.05.2018, passed the following order.
"Heard learned advocate appearing for the petition.
Considering the fact that almost on similar issue, the petition is entertained by this Court, as a result of this, Notice returnable on 14.06.2019.
To be heard alongwith Special Civil Application No.12712 of 2013. Any appointment made is subject to the outcome of the present petition. "
9.2.7 The above proceeding is filed by the Sangh in the year 2018 when the Society has initiated another recruitment process.
9.2.8 During the pendency of the above litigation, Special Civil Application No.1889 of 2020 and Special Civil Application No.1999 of 2020 are filed by the Gujarat Page 15 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined Audhyogik Surakshadal Mazoor Sangh and the Gujarat Industrial Security Force Society Employees' Union, respectively before this Court seeking quashment of the recruitment process initiated by the Society for the post of Security Guard for the year 2021-21 from Raksha Shakti University and thereby seeking public advertisement, wherein the Coordinate Bench of this Court has, vide order dated 27.01.2020, issued notice and directed that no appointment shall be made to the post of Security Guard in pursuance of the notice of the Raksha Shakti University holding interviews for the posts on 28.01.2020 and 29.01.2020.
9.2.9.1 In the year 2021, the Society has filed an application for direction being Civil Application No.1 of 2021 in Special Civil Application No.12712 of 2013 before this Court, wherein the Coordinate Bench of this Court vide order dated 27.07.2021 has passed the following order.
"[1] Present Civil Application is filed, inter alia, for the following prayer, "12(A) The Hon'ble Court be pleased to permit the Gujarat Industrial Security Force Society (Society) to recruit part of its vacancy i.e. 4000 security guards Page 16 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined (aprox) from (I) waiting list of lok rakshak (ii) candidates who have passed from Raksha Shakti University, and (iii) retired persons from police, army, navy etc. security forces for administrative posts; on such terms and conditions as may be prescribed by this Hon'ble Court and the said appointment shall be subject to the outcome of this petition."
[2] Learned advocate Mr.Amrish Patel appearing for the opponent (original petitioners) has submitted that so far as the prayer made at Paragraph No.12(A) first part is concerned, he has no objection. He has submitted that if the respondent society is allowed to recruit/fill up the vacancy of the security guard from the list of Lok Rakshak, the same may be considered.
[2.1] Learned advocate Mr.Patel has submitted that the dispute with regard to appointment of such persons, the Industrial Tribunal, Ahmedabad, passed an order in Award No. 29 of 2016 directing more Page 17 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined particularly that the Agency can recruit any person above 60 years of age in administrative category.
[2.2] Second objection raised by learned advocate Mr.Patel is that the opponent has challenged the recruitment made by Private Security Agency by way of a Writ Petition i.e Special Civil Application No. 13948 of 2021, which is still pending for admission. Thus, he has submitted that the request made at prayer 12(iii) may not be allowed.
[3] The Court has considered rival submissions made by the learned advocates. The applicant is seeking to fill up the vacancies by making appointment as per provision of Section 10(3) of the Private Security Agencies (Regulation) Act, 2005, which reads as under:-
Section 10(3) : Eligibility to be a private security guard :
"Every private security agency may, while employing a person as a private security guard, give preference to a person who has Page 18 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined served as a member in one or more of the following,
(i) Army;
(ii) Navy;
(iii) Air Force;
(iv) any other armed forces of the Union;
(v) Police, including armed constabularies
of States; and
(vi) Home Guards"
[4] It is undisputed fact that the
aforesaid regulation is not challenged before any court and is in force. Under the circumstances, it is open for the applicant to recruit / appoint Security Guard, as per the provision of Section 10 (3) of the Private Security Agencies (Regulation) Act, 2005. If any grievance with regard to appointment / promotion is noticed by the opponent, it is always open for him to challenge the said action before the appropriate forum. There cannot be total stall on the recruitment process if the such process is sought to be undertaken as per provision of law. In the present case, the applicant is empowered to appoint Security Guard, as per provision of Section 10(3) of the Private Security Agencies Page 19 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined (Regulation) Act, 2005.
[5] Accordingly, the present application is allowed to the aforesaid extent."
9.2.9.2 The Gujarat Audhyogik Surakshadal Mazdoor Sangh - respondent No.5 has filed an application for clarification being Civil Application No.2 of 2021 in Special Civil Application No.12712 of 2013 before this Court, wherein the Coordinate Bench of this Court vide order dated 27.07.2021 passed the following order.
"1. This Civil Application No.2 of 2021 has been filed seeking the following prayers:-
"26a. Your Lordships may be pleased to quash and set aside the recruitment and all subsequent actions carried out for the opponent Society subsequent to the order passed by this Hon'ble Court in Civil Application No.1 of 2021 in Special Civil Application No.12712 of 2013.
b. Your Lordships may be pleased to direct the opponent Society to not to recruit anyone in contravention of their own rules and regulation.Page 20 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025
NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined c. Your Lordships may be pleased to clarify/modify/direct the opponent society to recruit the Security Guard in consonance with the provisions of their own recruitment policy.
d. During the admission, hearing and final disposal of the application, grant stay against the opponent Society to carry out recruitment and not to appoint subsequent to the order passed in Civil Application No.1 of 2021 in Special Civil Application No.12712 of 2013 dated 27.07.2021 in contravention of Section 10 of the Private Security Agency (Regulation) Act, 2005"
2. At the outset, learned advocate Mr.Patel has submitted that so far as Civil Application No.2 of 2021 is concerned, the applicants will confine the prayers to prayer clause 26(c) since the substantive writ petitions are already filed challenging the other action of the respondents in issuing the advertisement and also undertaking recruitment process confining the categories mentioned in sub-section (3) of Section 10 of the Private Security Agency (Regulation) Act, Page 21 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined 2005 (for short "the Act"). It is submitted that after the directions were issued by this Court in the order dated 27.07.2021 passed in Civil Application No.1 of 2021, an advertisement dated 26.08.2018 was published by the respondent-Agency inviting the applications from the categories mentioned in sub-section (3) of Section 10 of the Act. It is submitted that all the members of the applicant-Union have undertaken the necessary course in security and also some of them are rendering their duties as Security Guards, however, they are debarred from applying the recruitment process as per the advertisement since it is only confined to the categories mentioned in sub-section (3) of Section 10 of the Act. It is submitted that in fact the advertisement should have invited the applications even from the general public so that they can also apply for the post in question.
3. Per contra, learned advocate Ms.Vacha Nanavati appearing for the respondent-Agency has submitted that the entire recruitment process is undertaken in view of the directions issued by this Court vide order Page 22 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined dated 27.07.2021 passed in Civil Application No.1 of 2021 and after the advertisement was issued inviting the applications for filling up the posts in question, various writ petitions are filed by other persons as well as the petitioners-Union challenging such recruitment process and by various interim orders, the respondent-Agency has been though allowed to conduct the recruitment process, the appointments are restricted.
4. This Court in the captioned writ petition, which is pending since the year 2013, had issued the following directions vide order dated 27.07.2021 passed in Civil Application No.1 of 2021:-
"[3] The Court has considered rival submissions made by the learned advocates. The applicant is seeking to fill up the vacancies by making appointment as per provision of Section 10(3) of the Private Security Agencies (Regulation) Act, 2005, which reads as under:-
"Section 10(3) : Eligibility to be a private security guard:Page 23 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025
NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined "Every private security agency may, while employing a person as a private security guard, give preference to a person who has served as a member in one or more of the following,
(i) Army;
(ii) Navy;
(iii) Air Force;
(iv) any other armed forces of the Union;
(v) Police, including armed constabularies of States; and
(vi) Home Guards"
[4] It is undisputed fact that the aforesaid regulation is not challenged before any court and is in force. Under the circumstances, it is open for the applicant to recruit / appoint Security Guard, as per the provision of Section 10 (3) of the Private Security Agencies (Regulation) Act, 2005. If any grievance with regard to appointment / promotion is noticed by the opponent, it is always open for him to challenge the said action before the appropriate forum. There cannot be total stall on the recruitment process if the such process is sought to be Page 24 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined undertaken as per provision of law. In the present case, the applicant is empowered to appoint Security Guard, as per provision of Section 10(3) of the Private Security Agencies (Regulation) Act, 2005."
5. It is the case of the applicants that the respondent-Agency has restricted the recruitment process for appointment to the persons from the category mentioned in sub- section (3) of Section 10 of the Act by issuing an advertisement dated 26.08.2018.
6. This Court has perused the relevant provisions of the Act, which would be Section 10 (1) (2)(3) of the Act, which are incorporated as under:-
"10. Eligibility to be a private security guard.
--(1) A private security agency shall not employ or engage any person as a private security guard unless he--
(a) is a citizen of India or a citizen of such other country as the Central Government may, by notification in the Official Gazette, specify;
(b) has completed eighteen years of age but Page 25 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined has not attained the age of sixty-five years;
(c) satisfies the agency about his character and antecedents in such manner as may be prescribed;
(d) has completed the prescribed security training successfully;
(e) fulfills such physical standards as may be prescribed; and
(f) satisfies such other conditions as may be prescribed.
(2) No person who has been convicted by a competent court or who has been dismissed or removed on grounds of misconduct or moral turpitude while serving in any of the armed forces of the Union, State Police Organisations, Central or State Governments or in any private security agency shall be employed or engaged as a private security guard or a supervisor.
(3) Every private security agency may, while employing a person as a private security guard, give preference to a person who has served as a member in one or more of the following, namely:--
(i) Army;Page 26 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025
NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined
(ii) Navy;
(iii) Air Force;
(iv) any other armed forces of the Union;
(v) Police, including armed constabularies of States; and
(vi) Home Guards."
7. A bare reading of sub-section (3) of Section 10 of the Act reveals that the Agency has to give "preference to a person", who has served as member in one or more of the categories as mentioned in sub-section (3) of Section 10 of the Act i.e. Army, Navy, Air Force, any other armed forces of the Union, Police, including armed constabularies of States and Home Guards.
8. The aforesaid rules nowhere restrict any other person to apply for getting employment as Security Guard under the provisions of the Act. However, it is always open for the Agency to give the preference to a person, who belongs or a member of the categories mentioned in sub-section (3) of Section 10 of the Act.
9. Under the circumstances, since various Page 27 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined writ petitions are pending and the captioned writ petition is also pending, it is clarified that the observations made in the order dated 27.07.2021 in Civil Application No.1 of 2021 shall not come in the way of the applicants-Union in pursuing their case as mentioned hereinabove in other writ petitions and also in the captioned writ petition.
10. With this clarification, the present applications stand disposed of."
9.2.9.3 As observed above, the Coordinate Bench has recorded no objection of learned advocate Mr.Amrish Patel appeared on behalf of the Gujarat Industrial Security Force Society Karmachari Union qua first part of the prayer 12(A) i.e. quashment of recruitment held in May, 2018. In view of this, the Coordinate Bench of this Court has empowered the Society to act as per the provisions of Section 10(3) of the Act, 2005. This Court finds that the emphasis was on two counts; firstly, the Society is a private Agency and therefore, the Act, 2005 is applicable to it and secondly, which is consequential, the Society should give preference to a person, who belongs or a member of the categories mentioned in sub-
section (3) of Section 10 of the said Act, 2005. Thus, now, the question of following recruitment rules at Annexure-C as Page 28 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined prayed for in Special Civil Application No.12712 of 2013 -
second part of first prayer does not arise.
9.3 At the cost of repetition, if we go through the first prayer again that 'permanently restraining the Society from making any recruitment of Security Guards or any other employee without publicly advertising for the posts and holding the regular selection as per the recruitment rules at ANNEUXRE-C to this petition', there are three parts; first is restraint, second is publicly advertising the posts and third is recruitment rules at Annexure-C. As noted above, the Coordinate Bench has not restrained the Society to recruit the Security guards or any other employee. Further, as noted above, it is clarified by the Society that the recruitment rules of 1997 was for that process only and now, the Society is governing under the Act, 2005 and its respective rules, therefore, the question of following recruitment rules of 1997 does not arise at this stage. Therefore, the third part of first prayer does not stand anymore. With regard to the second part is concerned, as noted above, the Coordinate Bench of this Court has, vide order dated 27.07.2021 and 09.01.2023 categorically held that the Society is empowered to appoint Security Guard, as per the provisions of Section 10(3) of the Act, 2005 and that too by giving the preference to a person, who belongs or a member of the categories mentioned in sub-
Page 29 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined section (3) of Section 10 of the Act, 2005.
10. In view of above, the following questions are framed by this Court for its consideration :
(i) Whether the Gujarat Industrial Security Force Society is a 'State' within the meaning of Article 12 of the Constitution of India or not ? If not, whether these petitions are required to be entertained under Article 226 of the Constitution of India or not ?
(ii) Whether the recruitment process by the Society should continue or not ?
(iii) Whether the Society should follow the Recruitment Rules, 1997 or not ?
(iv) Whether the Society should issue public advertisement for its posts or not ?
11.1 With regard to the first question as to whether the Gujarat Industrial Security Force Society - the Society is a 'State' within the meaning of Article 12 of the Constitution of India or not ? If not, whether these petitions are required to be entertained under Article 226 of the Constitution of India or not ? It is noted that the Society is a Society registered under the Cooperative Societies Act. The Society is Page 30 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined established for the purpose of providing security shelter of various Government, Semi-Government, Offices/establishments as well as private establishments at reasonable rate and to save the persons so deployed from the exploitation of the private security agencies. The Society is paying minimum wages to the Security Guards and Security Sub-Inspectors as declared by the Government in this behalf. The persons who have failed to secure job in the police department and failed either in written test, ground test or oral interview are appointed as Security Guards or Security Sub-Inspectors in the Society. Except acting as a launch pad to form a Society, there is no financial, functional or administrative control of the State over the Society. There is no control either direct or indirect over the functioning of the Society. The Society has to obtain all licences under the relevant labour laws. The Society is a self-sufficient society and has to create its own source of income for its activities. It is working on the basis of 'no profit, no loss'.
11.2 The aims and objects for which the Society are established, as noted in the order dated 18.04.2009 recorded on Special Civil Application No.16360 of 2004 and cognate matters, are as under :
"1. To provide comprehensive security and Page 31 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined safety services covering all aspects of protection to life and properties to industries and industrial undertakings in and out of Gujarat.
2. To provide employment and career opportunities to young, unemployed and well built persons to act as security guards.
3. To recruit ex-army and ex-officers from police department to supervise the guards posted at various places.
4. To provide security guards to clients to protect their properties and executing service contracts for providing services like car parking facility, lift operation facility etc.
5. To ensure the adequate and timely supply of security guards for the purpose of facilitating and doing security work or "watch and ward work" in any factory and establishment.
6. To locate and contact prospective clients residing in and out of Gujarat and motivate them to employ security services at reasonable cost.
7. To create an awareness among the clients residing in Gujarat and out of Gujarat for the importance of maintenance of security for lives and properties of industries and Page 32 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined industrial undertakings.
8. To organise training, guidance and information camps for the security guards to be engaged by the society.
9. To establish, develop and support centres for maintenance and supply of information regarding security services.
10. To provide information to public in general and entrepreneurs in particular regarding the opportunities available in different areas of security services.
11. To collect and maintain database regarding security agencies operating in Gujarat and out of Gujarat and liase with them matters of mutual interest.
12. To organise the training camps periodically to impart training to security personnel in various aspects of security and keep them informed regarding latest development in the area of security.
13. To maintain library of books in connection with the security, fire fighting, first aid and catalogue of equipments and suppliers as well as current and prospective clients.
14. To organise, sponsor, associate or participate in any campaign aimed at Page 33 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined promotion of industrial security.
15. To publish literature in the form of brochures, reports, pamphlets, periodicals and distribute them to the existing and prospective clients.
16. To keep abreast of the latest equipments and ammunitions available in the market for protection of lives and properties of industries and industrial undertakings.
17. To raise or borrow money from time to time furtherance of any object of the society with or without giving any security or by mortgaging / pleading / hypothecating the present or the future assets of the society.
18. To provide, assist and encourage welfare activities for security guards initiated by Central / State, Local or private bodies.
19. To adhere and ensure compliance with the various classification of securities provided by the Indian Police to VIPs.
20. To train the core and most efficient group to be formed as 'commando' group to provide security services to high risked personnel, places or any event.
21. To present the society and its interest before local, state and central authorities and other organizations in India.Page 34 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025
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22. To make from time to time bye-laws for the control, conduct and regulation of the affairs of the society.
23. To generally do all such things as are incidental to and/or conducive to the attainment of the above objects or any of them."
11.3 At this stage, it would be fruitful to refer to the object and reasons of the Private Security Agencies (Regulation) Act, 2005, which is as under.
"Due to increase in the number of business establishments and increasing demands for security, there has been a proliferation of private security agencies in the recent years. The growing tendency to hire security guards from private sources by industrial or business undertakings has led to coming up of large number of private security agencies all over the country. Though these private security agencies have helped in meeting the security needs of business establishments, there has been a growing concern about the manner of functioning of these agencies, many of which seem to conduct their operations without due care for verifying the antecedents of the Page 35 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined personnel employed as private security guards and supervisors.
2. Private multi-national security agencies have also established their branches in the country, which unless properly regulated, may have serious security implications. Unless suitable safeguards are devised, these developments are likely to have wide ranging security implications, which may not be in national interest. There is also a danger of the employees of the private security agencies encroaching upon the duties of the police, using weapons in an illegal manner and wearing uniforms which resemble those of the police. In many instances, personnel employed by these agencies have also been involved in criminal activities.
3. For all these reasons, Union Government has been considering to regular the functioning of these private security agencies, so that they are run within legal parameters and are accountable to a regulatory mechanism. In view of above, it is proposed to regulate the private security agencies through an Act which provides for a Page 36 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined Controlling Authority to be appointed by the State Governments for the purpose of granting licences and also to make holding of licences mandatory for the carrying on of business of security agencies and other related matters."
11.4 Indisputably, the Society has valid license under the Private Security Agencies (Regulation) Act, 2005. The State has time and again submitted before this Court the Society is not a 'State' and the Society is not its baby. The Society is charging from the Government for rendering its services, as and when State Government had taken any work from the Society like deployment of force for election duty or at the time of State sponsored festivals; like Kite Festival or Navratri Festivals or programmes like Vibrant Gujarat, etc. Further, because of the fact that the Society is bound to comply with the Labour Laws, it has been facing complaints filed by the Government Labour Officer and the enforcement agencies at some of the places for alleged violation of the Labour Laws also.
11.5 At this stage, it would be fruitful to refer to the decision of the High Court of Judicature at Allahabad in the case of M/s. Manoj Petroleum and Another versus Union of India and Others reported in 2025 (0) AIJEL-UP 4212891. It Page 37 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined is noted that in the said decision, the Division Bench of the High Court of Judicature at Allahabad has considered the decisions of the Hon'ble Apex Court in the case of Ajay Hasia and others versus Khalid Mujib Sehravardi and others reported in (1981) 1 SCC 722 (Five Judges Bench) as well as in the case of Pradeep Kumar Biswas versus Indian Institute of Chemical Biology and others reported in (2002) 5 SCC 111 (Seven Judges Bench). The relevant paras : 12 to 14 of the decision in the case of M/s. Manoj Petroleum and Another (supra) read as under.
"12. In the celebrated case of Ajay Hasia (supra), the five-judge Constitutional Bench of the Supreme Court headed by Justice Y.V. Chandrachud, C.J. considered R.D. Shetty v. International Airport Authority of India reported in (1979) 3 SCC 489 and laid down the six factors test to determine whether an entity is an instrumentality or agency of the Government. The tests are as follows:
(i) If the entire share capital of the body is held by the Government;
(ii) If the financial assistance given by the government is so significant that it meets almost the entire expenditure of the body;
(iii) If the body enjoys a monopoly status Page 38 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined conferred or protected by the State;
(iv) If there is deep and pervasive State control;
(v) If the functions of the body are of public importance and closely related to governmental functions;
(vi) Transfer of a Government department to the corporation. (Emphasis supplied)
13. The relevant paragraphs of judgment in Ajay Hasia (supra) have been delineated below for a better understanding:
"9. The tests for determining as to when a corporation can be said to be an instrumentality or agency of Government may now be culled out from the judgment in the International Airport Authority case [(1979) 3 SCC 489]. These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression "other authorities", it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression. A wide Page 39 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the International Airport Authority case as follows:
"(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.
(SCC p.507, para 14) (2) 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. (SCC p. 508, para 15) (3) It may also be a relevant factor ... whether the corporation enjoys monopoly status which is State conferred or State protected. (SCC p. 508, para 15) (4) Existence of deep and pervasive State control may afford an indication that the Page 40 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined corporation is a State agency or instrumentality. (SCC p. 508, para 15) (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. (SCC p. 509, para 16) (6) 'Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of Government." (SCC p. 510, para 18) If on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of Government, it would, as pointed out in the International Airport Authority case, be an "authority" and, therefore, 'State' within the meaning of the expression in Article 12."
*** "11. We may point out that it is immaterial for this purpose whether the Page 41 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The corporation may be a statutory corporation created by a statute or it may be a government Company or a Company formed under the Companies Act, 1956 or it may be a society registered under the Societies.
Registration Act, 1860 or any other similar statute. Whatever be its genetical origin, it would be an "authority" within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a Company or society and in a given case it would have to be decided, on a consideration of Page 42 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined the relevant factors, whether the Company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression "authority" in Article 12."
14. In Pradeep Kumar Biswas (supra), the Hon'ble Supreme Court further crystallized the test wherein it has been held that to constitute a body as 'State', Government must have a pervasive control over the particular body as has been earlier formulated in R.D. Shetty (supra) and Ajay Hasia (supra). The relevant paragraph of the judgment is provided below:
"40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia [Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258] are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be -- whether in the Page 43 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined 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." "
11.6 It would also be fruitful to refer to the decision of the Division Bench of this Court in the case of Himanshu Dineshchandra Parekh versus Institute for Plasma Research and others reported in 2025(2) GLH 585, more particularly, paras : 5.3 to 5.5, which read as under.
"5.3 On perusal of the rules and regulations of the research institute, the Honble Supreme Court found that there was a dominant role played by the Government of India in the governing body of the CSIR. The Prime Minister of India was the Ex-Officio President of the Society. The control of the Page 44 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined government was ubiquitous. As far as the financial position is concerned, the Honble Supreme Court found that at least 70% of the finance of the CSIR were available from the grants of the Government of India and the accounts were audited by the Comptroller and Auditor General and placed before the table of both the Houses of Parliament. Moreover, the Hon'ble Supreme Court found that on 31.10.1986, the Union of India had issued a Notification under Sec.14(2) of the Administrative Tribunals Act, 1985, notifying the Institute as being a Society owned and controlled by the government.
5.4 Based on these parameters as adopted by the Hon'ble Supreme Court, the Apex Court found that the control of the State was not merely regulatory but it was established that the body was functionally, financially and administratively dominated or be under the control of the government. Paragraphs 40, 42, 44, 45 and 47 to 58 read as under:
"40 The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of Page 45 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article
12. 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, it would not serve to make the body a State.
XXX XXXX XXXX
42 On 27-4-1940, the Board of
Scientific and Industrial Research
and on 1-2-1941, the Industrial
Research Utilisation Committee were set up by the Department of Commerce, Government of India with the broad objective of promoting industrial growth in this country. On Page 46 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined 14-1-1941, a Resolution was passed by the Legislative Assembly and accepted by the Government of India to the following effect:-
This Assembly recommends to the Governor- General-in-
Council that a fund called the Industrial Research Fund be constituted, for the purpose of fostering industrial development in this country and that provision be made in the budget for an annual grant of rupees ten lakhs to the fund for a period of five years.
XXX XXX XXX
44 The 26-9-1942 Resolution had
provided that the functions of CSIR would be:
(a) to implement and give effect to the following resolution moved by the Honble Dewan Bahadur Sir A.R.Mudaliar and passed by the Page 47 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined Legislative Assembly on 14-11-1941 and accepted by the Government of India;
(b) the promotion, guidance and
coordination of scientific and
industrial research in India including the institution and the financing of specific researches :
(c) the establishment or development and assistance to special institutions or department of existing institutions for scientific study of fellowships;
(d) the establishment and award of research studentships and fellowships:
(e) the utilisation of the results of the researches conducted under the auspices of the Council towards the development of industries in the country and the payment of a share of royalties arising out of the development of the results of researches to those who are considered as having contributed towards the pursuit of such researches;
(f) the establishment, maintenance Page 48 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined and management of laboratories, workshops, institutes, and organisation to further scientific and industrial research and utilise and exploit for purposes of experiment or otherwise any discovery or invention likely to be of use to Indian industries;
(g) the collection and dissemination or information in regard not only research but to industrial matters generally;
(h) publication of scientific papers and a journal of industrial resolution mentioned in (a) above.
45 These objects which have been incorporated in the memorandum of association of CSIR manifestly demonstrate that CSIR was set up in the national interest to further the economic welfare of the society by fostering planned industrial development in the country. That such a function is fundamental to the governance of the country has already been held by a Constitution Bench of this Court as far back as in 1967 in Rajasthan SEB v. Mohan Lal, Page 49 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined where it was said:
"The State, as defined in Article 12, is thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people."
XXX XXX XXX 47 Incidentally, CSIR was and continues to be a non-profit-making organization and according to clause 4 of CSIRs memorandum of association, all its income and property, however derived shall be applied only towards the promotion of those objects subject nevertheless in respect of the expenditure to such limitations as the Government of India may from time to time impose.
Management and control 48 When the Government of India resolved to set up CSIR on 26-2-1942, it also decided that the Governing Body would consist of the following members:
(1) The Honourable Member of the Page 50 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined
Council of His Excellency the Governor- General in charge of the portfolio of Commerce (ex officio).
(2) A representative of the Commerce Department of the Government of India, appointed by the Government of India. (3) A representative of the Finance Department of the Government of India, appointed by the Government of India.
(4) Two members of the Board of Scientific and Industrial Research elected by the said Board.
(5) Two members of the Industrial Research Utilisation Committee elected by the said Committee.
(6) The Director of Scientific and Industrial Research.
(7) One or more members to be nominated by the Government of India to represent interests not otherwise represented.
49 The present Rules and Regulations, 1999 of CSIR provide that:
(a) The Prime Minister of India shall be the ex officio President of the Society.Page 51 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025
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(b) The Minister in charge of the ministry or department, dealing with the Council of Scientific and Industrial Research shall be the ex officio Vice- President of the Society:
Provided that during any period when the Prime Minister is also such Minister, any person nominated in this behalf by the Prime Minister shall be the Vice-President.
(c) Minister in charge of Finance and Industry (ex officio).
(d) The members of the Governing Body.
(e) Chairman, Advisory Board.
(f) Any other person or persons appointed by the President, CSIR.
The Governing Body of the Society is constituted by the:
(a) Director General;
(b) Member Finance;
(c) Director of two national laboratories;
(d) Two eminent Scientists /
Technologists, one of whom shall be
from academia;
(e) Heads of two scientific departments / agencies of the Government of India.
50 The dominant role played by the Page 52 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined Government of India in the Governing Body of CSIR is evident. The Director General who is ex officio Secretary of the Society is appointed by the Government of India [Rule2(iii)]. The submission of the learned Attorney- General that the Governing members is, having regard to the facts on record, unacceptable. Furthermore, the members of the Governing Body who are not there ex officio are nominated by the President and their membership can also be terminated by him and the Prime Minister is the ex officio President of CSIR. It was then said that although the Prime Minister was ex officio President of the Society but the power being exercised by the Prime Minister is as President of the Society. This is also the reasoning in Sabhajit Tewary. With respect, the reasoning was and the submission is erroneous. An ex officio appointment means that the appointment is by virtue of the office; without any other warrant or appointment than that resulting from the holding of a particular office. Powers may be exercised by an officer, in this case the Prime Minister, which are not specifically conferred upon him, but are necessarily Page 53 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined implied in his office (as Prime Minister), these are ex officio.
51 The control of the Government in CSIR is ubiquitous. The Governing Body is required to administer, direct and control the affairs and funds of the Society and shall, under Rule 43, have authority to exercise all the powers of the Society subject nevertheless in respect of expenditure to such limitations as the Government of India may from time to time impose. The aspect of financial control by the Government is not limited to this and is considered separately. The Governing Body also has the power to frame, amend or repeal the bye- laws of CSIR but only with the sanction of the Government of India. Bye-law 44 of the 1942 Bye- laws had provided any alteration in the bye-laws shall require the prior approval of the Governor- General-in-Council.
52 Rule 41 of the present Rules provides that:
"The President may review/amend/vary any of the decisions of the Governing Page 54 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined Body and pass such orders as considered necessary to be communicated to the Chairman of the Governing Body within a month of the decision of the Governing Body and such order shall be binding on the Governing Body. The Chairman may also refer any question which in his opinion is of sufficient importance to justify such a reference for decision of the President, which shall be binding on the Governing Body."
53 Given the fact that the President of CSIR is the Prime Minister, under this Rule the subjugation of the Governing Body to the will of the Central Government is complete.
54 As far as the employees of CSIR are concerned the Central Civil Services (Classification, Control and Appeal) Rules and the Central Civil Services (Conduct) Rules, for the time being in force, are from the outset applicable to them subject to the modification that references to the President and government servant in the Conduct Rules would be construed as President of the Page 55 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined Society and officer and establishments in the service of the Society respectively (Bye-law
12). The scales of pay applicable to all the employees of CSIR are those prescribed by the Government of India for similar personnel, save in the case of specialists (Bye-law 14) and in regard to all matters concerning service conditions of employees of CSIR, the Fundamental and Supplementary Rules framed by the Government of India from time to time are also, under Bye-law 15 applicable to the employees of CSIR. Apart from this, the rules/orders issued by the Government of India regarding reservation of posts for SC/ST apply in regard to appointments to posts to be made in CSIR (Bye-law 19). CSIR cannot lay down or change the terms and conditions of service of its employees and any alteration in the bye- laws can be carried out only with the approval of the Government of India (Bye-law
20).
55 The initial capital of CSIR was Rs 10 lakhs, made available pursuant to the Resolution of the Legislative Assembly on 14- 11-1941. Paragraph 5 of the 26-9-1942 Page 56 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined Resolution of the Government of India pursuant to which CSIR was formed reads:
"The Government of India have decided that a fund, viz., the Industrial Research Fund, should be constituted by grants from the Central revenues to which additions are to be made from time to time as moneys flow in from other sources. These other sources will comprise grants, if any, by Provincial Governments, by industrialists for special or general purposes, contributions from universities or local bodies, donations or benefactions, royalties, etc., received from the development of the results of industrial research, and miscellaneous receipts. The Council of Scientific and Industrial Research will exercise full powers in regard to the expenditure to be met out of the Industrial Research Fund subject to its observing the bye- laws framed by the Governing Body of the Council, from time to time, with the approval of the Governor General-in-Council, and to its annual budget being approved by Page 57 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined the Governor- General-in-Council."
56 As already noted, the initial capital of Rs.10 lakhs was made available by the Central Government. According to the statement handed up to the Court on behalf of CSIR the present financial position of CSIR is that at least 70% of the funds of CSIR are available from grants made by the Government of India. For example, out of the total funds available to CSIR for the years 1998-99, 1999- 2000, 2000-01 of Rs.1023.68 crores, Rs.1136.69 crores and Rs.1219.04 crores respectively, the Government of India has contributed Rs.713.32 crores, Rs.798.74 crores and Rs.877.88 crores. A major portion of the balance of the funds available is generated from charges for rendering research and development woks by CSIR for projects such as the Rajiv Gandhi Drinking Water Mission, Technology Mission on oilseeds and pulses and maize or grant- in-aid projects from other government departments. Funds are also received by CSIR from sale proceeds of its products, publications, royalties etc. Funds are also received from investments but under Bye-law 6 of CSIR, funds of the Page 58 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined Society may be invested only in such manner as prescribed by the Government of India. Some contributions are made by the State Government and to a small extent by individuals, institutions and other agencies. The non- governmental contributions are a pittance compared to the massive governmental input.
57 As far as expenditure is concerned, under Bye- law 1 as it stands at present, the budget estimates of the Society are to be prepared by the Governing Body keeping in view the instructions issued by the Government of India from time to time in this regard. Apart from an internal audit, the accounts of CSIR are required to be audited by the Comptroller and Auditor General and placed before the table of both Houses of Parliament (Rule 69).
58 In the event of dissolution, unlike other registered societies which are governed by Section 14 of the Societies Registration Act, 1860 . the members of CSIR have no say in the distribution of its assets and under clause 5 of the memorandum of Page 59 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined association of CSIR, on the winding up or dissolution of CSIR any property remaining after payment of all debts shall have to be dealt with in such manner as the Government of India may determine. CSIR is therefore both historically and in its present operation subject to the financial control of the Government of India. The assets and funds of CSIR though nominally owned by the Society are in the ultimate analysis owned by the Government.
5.5 Obviously therefore, deep and pervasive functional administration and financial control vested in the Central Government which made the Institute a State within the meaning of Article 12 of the Constitution of India."
11.7 It would also be fruitful to refer to the decision of the Division Bench of this Court in the case of C.A. Shah versus Gujarat Cancer and Research Institute reported in 1992 (1) GLR 687, more particularly, para : 21 thereof, which reads as under, where the questions were : (1) whether the "Gujarat Cancer & Research Institute" is "State" within the meaning of Art. 12 the Constitution of India or not, (2) whether the said Institute is amenable to writ jurisdiction or Page 60 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined not :
"21. The conspectus of the aforesaid decisions and the facts narrated hereinabove leave no doubt that the respondent-Institute is not a 'State' or 'Other Authority' as envisaged by Article 12 of the Constitution of India:
[(1) The Institute does not owe its existence to any statute. It is a creation of contract between the Guj. Cancel- Society and the State Government, therefore, it is not a statutory body;] [(2) It is registered under the Societies Registration Act, 1860, and under the Bombay Public Trust Act, 1950;] [(3) Its funds consist of properties belonging to Gujarat Cancer Society, gifts, donations and also grants by the Government. The Institutions owned by the State are normally not funded by gifts and donations. It is an admitted fact that donations to the Cancer Society are substantial. The Institute is entitled to receive contributions or gifts from any indigenous source without government sanction;] [(4) It is administered by the Governing Page 61 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined Board consisting of three members nominated by the Guj. Cancer Society, three members nominated by the Government and by the Director appointed by the Governing Board;] [(5) It does not enjoy any monopoly status. Any private individual, any society or any public trust can open or start such type of cancer institution at any moment without any hindrance;] [(6) As per the rules framed by the Institute, the State Government has no power to give any general directions or to have supervision over the functioning of the Institute. Therefore, it is not subject to the directions which may be issued by the Government from time to time;] [(7) The respondent-Institute is not an agency or instrumentality of the Government for carrying out governmental functions.]"
11.8 In view of above, this Court finds that the respondent - Gujarat Industrial Security Force Society is not a 'State' within the meaning under Article 12 of the Constitution of India. Thus, this Court answers the first part of the first question in 'negative'.
11.9 Now, with regard to the consequential question Page 62 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined that if the respondent Society is not a 'State' within the meaning under Article 12 of the Constitution of India, whether these petitions are required to be entertained under Article 226 of the Constitution of India or not is concerned, the litigation is going on since the year 2013. Thereafter, the aggrieved persons have approached this Court with various petitions which are tagged with the main matter. As such, with the negative answer of first question, these petitions need to be relegated to the Industrial Tribunal under the Labour Laws. One of the contentions of the respondent Society is that these petitions are not maintainable under Article 226 of the Constitution of India. However, though this Court has arrived at the conclusion, as mentioned hereinabove, that the respondent - Society is not a 'State', since much water has flown during these years in such battle, the propriety demands not to send the issue before the Tribunal for adjudication after these many years.
Therefore, in the interest of justice, it would be appropriate to decide these petitions by this Court at this stage, without going into the technicality of the matters any further.
Therefore, this Court answers the second part of the first question in 'affirmative'.
12. With regard to the second question that whether the recruitment process by the respondent Society should Page 63 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined continue or not, is concerned, as noted above, the Coordinate Bench of this Court has vide order dated 27.07.2021 recorded on Civil Application No.1 of 2021 in Special Civil Application No.12712 of 2013 as well as vide order dated 09.01.2023 recorded on Civil Application No.2 of 2021 in Special Civil Application No.12712 of 2013 has already decided the same by observing that there cannot be total stall on the recruitment process if the such process is sought to be undertaken as per provision of law and thereby, the respondent Society is empowered to appoint Security Guard, as per provision of Section 10(3) of the Private Security Agencies (Regulation) Act, 2005. It is further observed that it is always open for the Society to give the preference to a person, who belongs or a member of the categories mentioned in sub-section (3) of Section 10 of the Act, 2005. It is noted that the said order is not challenged by any party before higher forum and thus, it has attained finality. In view of it, this Court answers the second question in 'affirmative'.
13. With regard to the third question that whether the Society should follow the Recruitment Rules, 1997 or not, is concerned, it is noted that the Society is not a 'State' within the meaning under Articles 12 of the Constitution of India, as held hereinabove; and that the Labour Laws are applicable to the Society; and that the Society is governed Page 64 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025 NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined under the provisions of the Private Security Agencies (Regulation) Act, 2005, and that the Recruitment Rules, 1997 are for the recruitment of the year 1997 only, this Court answers the third question in 'negative'.
14. With regard to the fourth question that whether the Society should issue public advertisement for its posts or not, is concerned, since the Society is not a 'State' within the meaning under Article 12 of the Constitution of India, it would be open for the Society to recruit its employees as per its rules by keeping in mind the observation made by the Division Bench of this Court vide order dated 09.01.2023 recorded on Civil Application No.2 of 2021 in Special Civil Application No.12712 of 2013 that it is always open for the Society to give the preference to a person, who belongs or a member of the categories mentioned in the sub-section (3) of Section 10 of the Act, 2005. Therefore, this Court answers fourth question in 'negative'. It is expected that the Society should adopt the transparent recruitment process.
15. There cannot be any dispute with regard to the law enunciated in the decision of the Hon'ble Apex Court relied upon by the learned advocate for the petitioner/s, however, it cannot be helpful to the petitioner/s any further in view of the facts and circumstances of the present case.
Page 65 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025NEUTRAL CITATION C/SCA/12712/2013 CAV JUDGMENT DATED: 18/07/2025 undefined The present case does not fall within the purview of the said decision with such facts.
16. In view of above and under the circumstances, all these petitions need to be dismissed and are dismissed accordingly. Rule is discharged in each petition. Interim relief, if any, stands vacated in each petition.
(SANDEEP N. BHATT,J) After the pronouncement of this judgment, learned advocates for the petitioners request to extend the interim relief/s. Considering the fact that process is stalled due to interim relief/s granted earlier and considering the reasons stated hereinabove for deciding these petitions, this Court is of the view that interim relief/s is not required to be extended any further. Accordingly, request for extension of interim relief/s is rejected.
(SANDEEP N. BHATT,J) M.H. DAVE Page 66 of 66 Uploaded by M.H. DAVE(HC00193) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:30:04 IST 2025