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Judgment
T.S. Doabia, J.—A preliminary objection to the maintainability of the writ petition has been made. It is submitted that Jammu & Kashmir
Social Welfare Advisory Board is not a State. It is submitted that it does not fall within the meaning of `other authority' as occurring in Article 12 of
the Constitution of India. It is accordingly submitted that this writ petition would not be maintainable. It is submitted that this Board is subsidiary
and off shoot of the Central social Welfare Board. This is a nongovernment organisation. The Central Social Welfare Board meets 67% of the
financial commitments. 33% of the financial commitments are met by the State Government. On merits it is submitted that the petitioner was
engaged as Crech Teacher. This could be terminated by giving one months notice. Consolidated wages of Rs. 400/ p.m. was sanctioned. The case
of the petitioner is that she served the respondents for 21/2 years. On account of medical ailment she had got admission in the Post Graduate
Institute of Medical Science at Chandigarh. In her place respondent No. 4 was engaged. The petitioner submits that she submitted her joining
report after she recovered from her ailment. It is submitted that the respondents be directed to reengage the petitioner. Non engagement would
amount to bringing about an end to her service tenure. This as per the petitioner cannot be done. The question as to whether the Jammu and
Kashmir Social Welfare Advisory Board falls within the preview of Article 12 of the Constitution be examined. The Supreme Court in the case of
Ramana Dayaram Shetty v. The International Airport Authority of India, AIR 1979 SC 1628 laid down some of the tests with a view to decide
whether a particular authority is an instrumental of the State or not. In paragraph 19 some of the factors were highlighted as under :
Whether there is any financial assistance given by the State, and if so, what is the magnitude of such assistance whether there is any other form of
assistance, given by the State, and if so, whether it is of the usual kind or it is extraordinary, whether there is any control of the management and
policies of the corporation by the State and what is the nature and extent of such control, whether the corporation enjoys State conferred or State
protected monopoly status and whether the functions carried out by the corporation are public functions closely related to government functions.
This particularisation of relevant factors is however not exhaustive and by its very nature it cannot be, because with increasing assumption of new
tasks, growing complexities of management and administration and the necessity of continuing adjustment in relations between the corporation and
Government calling for flexibility, adaptability and innovative skills, it is not possible to make an exhaustive enumeration of the tests which would
invariably and in all cases provide an unfailing answer to the question whether a corporation is governmental instrumentality or agency.
It was further observed (at p. 1642 of AIR) :
Moreover even amongst these factors which we have described, no one single factor will yield a satisfaction answer to the question and the court
will have to consider the cumulative effect of these various factors and arrive at its decision on the basis of a particularised inquiry into the facts and
circumstances of each case. ""The dispositive question in any State action case"" as pointed out by Douglas J., in Jackson v. Metropolitan Edison
Co., (1974) 419 US 345 is not whether any single factor or relationship presents a sufficient degree of State involvement, but rather whether the
aggregate of all relevant factors compels a finding of State responsibility."" It is not enough to examine seriatim each of the factors upon which a
corporation is claimed to be an instrumentality or agency of Government and to dismiss each individually as being insufficient to support a finding to
that effect. It is the aggregate or cumulative effect of all the relevant factors that is controlling.
Again a Constitution Bench of the Supreme Court in the case of Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487 formulated certain
tests which may enable one to find out whether a particular body is an instrumentality of the State or not. The relevant tests were summarised as
under (at p. 490 of AIR) :
i) ""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.
ii) ""Whether the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication
of the corporation being impregnated with governmental character.
iii) ""It may also be a relevant factor .... Whether the corporation enjoys monopoly status which is the State conferred or State protected.
iv) ""Existence of ""Deep and pervasive State control"" may afford an indication that the Corporation is a State agency or instrumentality.
v) ""If the functions of the Corporation 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.
vi) ""Specifically, if a department of Govt. 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.
It be seen that none of the tests as indicated in the above two cases are present in the present case and therefore, the respondentJ&K Social
Welfare Advisory Board cannot be held to be an authority for the purposes of Article 12 of the Constitution of India.
The Delhi High Court in the case of Sarmukh Singh v. Indian Red Cross Society, 1985 Lab IC 1072 held that Red Cross Society is not an
authority for the purposes of Art. 12 of the Constitution of India.
In view of the above discussion and in view of the decisions of the Supreme Court in the aforementioned cases, it becomes apparent that the
J&K Social Welfare Advisory Board is not performing any governmental function and as such it cannot be said to fall under the term ""State"" or
authority"" as contemplated by Art. 12 of the Constitution of India. The preliminary objection raised on behalf of the respondents is upheld and the
present petition is held to be not maintainable and the same would liable to dismissal.
Before parting with the judgment respondent No. 3 who has been arrayed as respondent is directed to take notice of the grievance of the
petitioner. If it is possible to adjust the petitioner then such direction as it may deem proper be given. The petitioner having worked for more than
21/2 years and having recovered from her ailment makes a compassionate appeal that she be reengaged. Let this prayer be considered. In doing
so, the respondents would only be giving effect to the view expressed by the Supreme Court of India. The decisions in this regard were noticed by
a Division Bench of this Court in Daya Krishan and ors. v. State of J&K and ors., 2000 SLJ 365. What was observed in paras 14 and 15 of the
above case is being reproduced below :
Law is well settled that in case their employee complete more than 240 days of their service in one calender year and their services are terminated
without compliance of Section 25F of the Act, then they are entitled to re instatement with back wages. See following decisions :
Bank of India v. N. Sunder Moni, AIR 1976 SC 1111.
Hindustan Steel Ltd. v. Presiding Officer Orissa, 1976(4) SCC 222.
Santosh Gupta v. State Bank of Patiala, 1980(3) SC 340.
Mohan Lal v. Bharat Electronics Ltd., 1981(1) SCC 2
Karnataka SRTC v. Baraiah, AIR 1981(1) SC 2445.
Punjab Land Development and Reclamation Corporation Ltd. Chandigarh v. Presiding Officer Labour Court Chandigarh and ors., 1990(3)
SCC 682.
It be seen that in the matter of calculating 240 days, paid holidays and Sundays have also to be taken into consideration. In one year there would
be 52 Sundays and if these are added then there total number of days on which a workman would have work to work would be much less. For
this no proof is required. The above view was expressed by the Supreme Court of India in the case of Workmen of American Express
International Banking Corporation v. Management of American Express International Banking Corporation, AIR 1986 Supreme Court 458. It
was observed that :
That the qualification for relief under Section 25F is that he should be a workman in an industry and has been in continuous service for not less
than one year under an employer. What is continuous service has been defined and explained in Section 25B of the Act. In view of SubSection (2)
of Section 25B the workman shall be deemed to be in continuous service if he has actually worked under the employer for particular period. The
expression actually worked under employer cannot be mean those days only when the workman worked with hammer, sickle or pen. But must
necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under
express or implied contract of service or by compulsion of statute, standing orders etc. Thus Sundays and other paid holidays should be taken into
account for the purpose of reckoning the total number of days on which the workman be said to have actually worked.
What was said in para 30 be also noticed :
From the judicial precedents noticed above, it can safely be concluded :
(i) that an Government employee can also fall within the definition of workman also.
(ii) that even in the case of employee who is working with a contractor under the Contract labour (Regulation and Abolition) Act 1970, direction
can be given to the Principal Employer to bring the employee on its Rolls.
iii) Even in case of seasonal employee, direction for regularisation of services can be given under circumstances noticed above.
iv) an employee who is engaged under a scheme can be adjusted in another suitable work if it is possible to do so. However, no vested right exist
in that person.
v) that an employee employed in terms of SRO 64 of 1994 is entitled to regularisation on completion of period of seven years of service. In case
this tenure is yet to be completed then he should be allowed to complete this term of seven years of services.
vi) that an employee working under Court's direction acquires no right to claim regularisation.
vii) if similarly situated employee services are regularised then direction can be given for regularising services of other also.
viii) that an employee who have been appointed de hors the rule or does not possess qualification cannot claim regularisation.
In view of the above, this petition is disposed of with a direction to the respondents No. 3 alone to consider the claims of the petitioner. They
would also take notice of the observations made in the above case and would pass appropriate orders. Let this be done within a period of three
months from the date copy of the order passed by this court is made available by the petitioner to the respondentsauthorities.