B. D. Agrawal, J. - (1.) KRISHNA Murti Foundation India Agricultural School, Rajghat, Varanasi, a society registered under the Societies Registration Act, imparted education in Agriculture and Extension Courses and awarded diplomas to students. The State Government accorded recognition to the starting of these courses provisionally on July 18, 1956 and upon permanent basis on November 13/24, 1961. The two petitioners were appointed Lecturers in the School in respect whereof there was agreement executed in the Form referred to in paragraphs 143 (F) and 293 (2) of the Education Code, 1963. The agreement in both the cases is dated 1-1-1968. Government, it appears, had under consideration whether the scheme to impart Diplomas to students be continued and hence it wrote to all the recognized agricultural institutions to stop admission of students till final decision. No admissions took place in the School in 1985 and 1986. The Secretary, society pleaded with the Government by letters dated December 30, 1985 and June 12, 1986 but there being no response, terminated the petitioners' services by order dated 30th June, 1986, stating therein that this is brought about due to the institutions being closed.
(2.) AGGRIEVED the petitioners have filed these petitions under Articles 226 of the Constitution seeking writ of certiorari to quash the order dated June 30, 1986 and also mandamus directing the respondents to treat the petitioners as continuing in service and entitled as such to all benefits. The School, it may not be doubted, is not a statutory body. The Society or the Committee of Management, which runs the institution is not a creature of statute. It is a body constituted in accordance with the provisions of the Societies Registration Act and the Rules framed thereunder to carry out certain specific objects but is not created by or under the statute nor does it owe its existence to the Act. This constitutes the essential distinguishing feature (Indian Airlines Corporation v. Sukhdeo Rai, (1971) 2 SCC 192 ; Vaish Degree College, (1976) 2 SCC 58 ; Arya Vidya Sabha Kashi v. Krishna Kumar Srivastava, AIR 1976 SC 1073). See also-Agarwal Digambar Jain Samiti, Agra v. Badri Prasad Srivastava, 1984 Education Cases 154 (Division Bench) (All.). Sri R. N. Singh, learned counsel for the petitioners, urged that the Society be treated an ' authority ' within the meaning of Article 12 of the Constitution. In Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331 Mathew, J. advocated a test broader and wider than that laid down in Electricity Board, Rajasthan v. Mohan Lai, AIR 1967 SC 1857 to determine whether a body would be an authority within the meaning of Article 12. The learned Judge observed that if a statutory corporation was an agency or instrumentality of the Government, it was 'other authority' and so 'State'. This test was recognised and further elucidated in International Airports Authority's Case, AIR 1979 SC 1926. Bhagwati J. highlighted the factors which made a legal person, even a registered society an agency or instrumentality of Government. Factors which Krishna Iyer, J. culled out in Somprakash Rekhi, AIR 1981 SC 212 relying on International Airport Authority (supra) were (1) financial resources of the State being the chief funding source; (2) functional character being Government in essence ; (3) plenary control residing in Government; (4) prior history of the same a duty having been carried on by Government and made over to the new body and (5) some element of authority or command. The case in Ajai Hasia, AIR 1981 SC 487 was in relation directly to a registered society. The Supreme Court held that the Regional Engineering College satisfied the tests laid down in Airports Authority and Somprakash Rekhi and was, therefore, an 'authority' within Article 12 being an agency or instrumentality of the State.
(3.) THE governing consideration in Ajay Hasia was thus expressed, "the reality is very much the deeply pervasive presence of the government." THE question arose in B. S. Minhas v. Indian Statistical Institute etc. (1983) 4 SCC 582. THE Court took note of the fact that the money required for running the institute was provided entirely by the Central Government and even if any other moneys were to be received by the Institute it could be done only with the approval of the Central Government. THE accounts of the Institute had also to be submitted to the Central Government for its scrutiny and satisfaction. THE Institute had to comply with all such directions as might be issued by the Central Government. "THE control of the Central Government is deep and pervasive and, therefore, to all intents and purposes it is an instrumentality of the Central Government". This constitutes the ratio of that decision. Can we say this or nearly approaching the same in relation to the School or the Society which governs the same ? The answer to our mind is plainly in the negative. The State Government granted recognition on July 18, 1956 to the starting of Agriculture and Extension Diploma classes in the School. This was provisional on November 13/24, 1961, the recognition was made permanent. The institution was placed on the grant-in-aid list of the State Government. Sri Singh argued that there are various conditions attached to the grant-in-aid incorporated in the form of executive instructions (vide 1979 AWC 726 FB) in para 293 of the Education Code. Even where a provision is statutory upon being incorporated in a contract or lease it becomes a part thereof and loses its statutory character-DFO v. Bishwanath Tea Co. Ltd. (1981) 3 SCC 238. We have also scrutinized those conditions. There is, it would appear, a large field uncovered for the Society to act in accordance with the general law of the land. The composition of the Society is not touched; the executive of the Society need not have any nominee of the State Government; there is no restraint upon the Society raising its funds from other sources; it is not alleged that the State grant constitutes the chief funding source; the Society has the freedom to select and appoint the teachers provided they fulfil the qualifications laid down in the Intermediate Education Act and there is no general mandate to abide by the directions of Government as may be issued from time to time in order to avail the grant. The control exercised by Government is not deep or pervasive nor may this be classed as plenary. Para 293 (4) of the Education Code, referred to by learned counsel, provides in its first part for the award such as the Regional Arbitration Board gives being implemented. Clause 15 of the Agreement, referred to for the petitioners, makes provision for award but we have had an affidavit from the petitioners that no Regional Arbitration Board has come to be constituted. In its second part para 203 (4) says that if a teacher is discharged without prior approval of the Inspector, where such approval is necessary, the grant-in-aid of the School shall be reduced by the amount equal to the pay of the person concerned and in case of wrongful dismissal or discharge the amount may be paid directly to the person concerned with the sanction of the Director for such period as the Director may decide. The duty which this provision casts is again nonstatutory; it is as one of the conditions attached to the grant-in-aid; there is no allegation to the effect that the petitioners have approached the Government or the Director for that matter for payment keeping this provision in view and the same has been declined so as to entitle them to a mandamus in this respect. In fact so far as the State is concerned it is arrayed as a party no doubt but there is no cause of action found set up against it in any of these two petitions. It does not appear possible, upon these facts, to place the Society in question in the category of agency or instrumentality of the State Government.;