Gujarat High Court
Gujarat Industrial Security Force ... vs Gujarat Industrial Security Force ... on 18 July, 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.
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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
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
CAV JUDGMENT
1. Challenge in these petitions, under Articles 226 of
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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
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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
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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
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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
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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
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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
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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
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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.
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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
(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
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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
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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
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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
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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.
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(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
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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
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(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
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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
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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
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(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.
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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,
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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
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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:
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"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
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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
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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;
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(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
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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
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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-
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
