Shishir Kumar, J. - (1.) THE present writ petition has been filed for quashing the order impugned dated 13.7.2007 passed by the respondent No. 5 together with impugned order dated 18.8.2007 passed by the respondent No. 2. Further prayer is for issuing a writ in the nature of mandamus commanding the respondents not to interfere in the peaceful function of the petitioner as a Principal of Saraswati Vidya Mandir Inter College, Kakari Pariyojana, Sonbhadra and may be directed to make the payment of salary to the petitioner in accordance with law.
(2.) THERE is a Saraswati Vidya Mandir Inter College, Kakari Pariyojana, Sonbhadra recognised and unaided institution and is governed by the Provisions of U.P. Intermediate Education Act, 1921. The institution was accorded recognition as a Higher Secondary School vide its order dated 29.3.2001, a copy of the same has been annexed as Annexure -1 to the writ petition. It was also accorded recognition as Intermediate College vide its order dated 25.9.2004. The Provisions of U.P. Intermediate Education Act, 1921 and regulation framed thereunder are also applicable to the said institution in question and is also governed by the U.P. Act No. 5 of 1982. The aforesaid institution is also governed by a Committee of Management duly recognised by Mandaliya Samiti headed by Joint Director of Education, Vindhyachal Mandal, Mirzapur vide order dated 2.1.2007. The District Inspector of Schools has attested the signature of Sri Uma Shanker Singh as a manager of the institution, whereas Sri Shyam Sunder Singh has been recognized as a president of the Committee of Management. The institution has got its By -laws and scheme of administration. The Bhartiya Shiksha Samiti Uttar Pradesh Purva, Allahabad is a non registered society having no concern with the institution in question. The respondent No. 5 vide the impugned order dated 13.7.2007 transferred the petitioner from Saraswati Vidya Mandir Inter College, Kakari Pariyojana, Sonbhadra to Barati Lal Ganga Ram Saraswati Vidya Mandir Inter College Lalganj, Rai Bareilly. After the order dated 13.7.2007, the District Inspector of Schools has passed an order dated 16.7.2007, directing the manager of the institution, clarifying therein that the order of impugned transfer is impermissible and is also illegal. Then the Committee of Management wrote a letter on 14.7.2007 stating therein that Saraswati Vidya Mandir Inter College, Kakari Pariyojana, Sonbhadra is an unaided institution, which has got its own scheme of administration. It has also been clarified by the Committee of Management of the institution in question that Mantri of Bhartiya Shiksha Samiti Uttar Pradesh Purva, Allahabad is having no jurisdiction to transfer any employee of the college concerned to some other institution. It has also been stated that since the provisions of U.P. Intermediate Education Act, 1921 and the Regulations framed therein have full application in the institution in question, the petitioner can only be transferred after following the procedure prescribed under the Regulations 55 to 61 of Chapter -III of U.P. Intermediate Education Act. The petitioner has never made any application to any authority for being transferred from the present institution, where he is working. No procedure as provided under any Regulations 55 to 61 framed therein have been followed as such the impugned order is bad in law. Sri Anil Bhushan, who appears for the respondents has raised a preliminary objection regarding maintainability of the writ petition. It has been submitted that it is an unaided private institution, therefore, the provision of U.P. Intermediate Education Act will not be applicable and the respondents are not a statutory body, it is only a society, who has passed the order, therefore, the writ petition itself is not maintainable. As the respondents do not come under the definition of Article 12 of the Constitution of India, as such the writ petition is liable to be dismissed. Sri Anil Bhushan, learned Counsel for the respondent has also brought to the notice of the Court that one Basudeo Prajapati has also filed a Writ Petition No. 74104 of 2005 against the same Committee of Management and this Court has also dismissed the writ petition on 6.12.2005 only on the ground that the Rules are not statutory, therefore, in absence of any violation of statutory Rules, the writ petition is not maintainable. Sri Anil Bhushan has also relied upon a Division Bench judgment of this Court reported in Army School Gorakhpur v. Smt. Shilpi Paul and has placed reliance upon paragraphs 16, 20, 24 and 29 of the said judgment, the same are being reproduced below: 16. Without going into merits or demerits of the case we are of the opinion that this appeal deserves to be allowed on the short point that the appellant is not State under Article 12 of the Constitution and hence the writ petition was not maintainable. It may be mentioned the this objection that the writ petition was not maintainable since the Army School was not State under Article 12 of the Constitution was specifically taken in paragraphs 5 and 6 of the counter affidavit to the writ petition. 20. It may be mentioned that the learned Single Judge in the impugned judgment had not at all dealt with this submission of the appellant that it is not State under Article 12 of the Constitution. It appears that this was because as stated, in paragraphs 60 to 64 of the affidavit filed in support, of the stay application in this appeal, when the case was listed on 6.8.2003 learned Counsel for the respondent in the writ petition (appellant here) could not mark the case in the cause list and hence learned Counsel could not be present and was not heard and the learned Single Judge decided the case ex parte. However, the plea that the Army School is not State under Article 12 was certainly there in paragraphs 4 to 6 in the counter affidavit and should have been dealt with by the learned Single Judge when he decided the petition. In our opinion, without going two this preliminary objection it was not open to the learned Single Judge to have gone into merits of the case, because if the Army School is not State under Article 12 of the Constitution the matter ends there and the writ petition would have to be dismissed. 24. The test as to which body can be regarded as an instrumentality or an agency of the State has been laid down in a series of decisions of the Supreme Court and it is not necessary to refer to all out them. The latest decision is General Manager, Kisan Sahkori Chini Mills Ltd. v. : (2003)IIILLJ1108SC . In that decision the question was whether the Kisan Sihkari Chini Mills was State under Article 12 of the Constitution and hence amenable to writ jurisdiction. The mill was a co -operative society registered under the U.P. Cooperative Societies Act 1965. The Supreme Court held that the State had. no control at all in the functioning of the mill, much less a deep and pervasive one. Hence it was held that Kisan Sahkari Chini Mills was not State under Article 12 of the Constitution. The Supreme Court referred to the Constitution Bench decision of the Supreme Court in Ajay Hasia v. : (1981)ILLJ103SC , wherein it was observed: 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)IILLJ217SC . These tests are not conclusive or clinching, hut they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wife 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 enlargement of the meaning must be tempered by a wide limitation. We may summarise the relevant tests gathered from the decision in the International Airport Authority case (supra) as follows: (1) One thing is clear that if the entire share capital of the corporation is held by the Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. (SCC p. 507, para 4) (2) Where the financial assistance of the State is so much as to meet almost the 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 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 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 factor it is found that the corporation is an instrumentality or agency of Government, it would, as pointed out in the International Airport Authority case (supra), be an 'authority' and, therefore, 'State' within the meaning of the expression in Article 12. 29. In the above decision it was held that the National Council of Educational Research and Training (N.C.E.R.T.) was not State under Article 12 if the Constitution as it was largely an autonomous body. It may be mentioned that in the aforesaid case the Government was giving funds to the N.C.E.R.T. but yet it was held that N.C.E.R.T. was not State Under Article 12 of the Constitution. In the present case the Army School does not receive any fund from the Government. Hence there is even less reason for regarding it as State under Article 12.
(3.) FURTHER reliance has been placed by the learned Counsel for the respondents a Full Bench judgment of Madras High Court reported in 2005 (4) ESC (Madras) 2669 A. Joseph Louis v. District Welfare Fund Committee, Trichy -1 and Ors.. In support of the aforesaid contention, learned Counsel for the respondents submits that National Council of Educational Research and Training in short (NCERT), which was a registered society under the Societies Registration Act, the Court after verifying its object, programmes, activities, funding and considering the fact, that the Government has got limited control only to proper utilization of the grant, the Court ultimately has come to the conclusion that it is a autonomous body and does not fall within the definition of 'State' under Article 12 of the Constitution of India. Further reliance has been placed upon a Full Bench decision of this reported in, 2005 (3) UPLBEC 2187 M.K. Gandhi and Ors. Director of Education (Secondary), U.P., Lucknow and Ors. The Full Bench of this Court has considered whether the Public School, Ghaziabad, which has been recognised by the Central Board of Secondary Education comes under the ambit of Article 12 of the Constitution of India or not. It has been held by the Full Bench that though the Delhi Public School recognised by the Central Board Secondary Education, certain by -laws have been framed by the Board and there was a requirement that the Delhi Public School should frame the Service Rules for employees but no service rule have been framed and by -laws has been adopted and Confirmed by the Board, inspite of the aforesaid fact, Full Bench has held that the termination of service of a teacher working in Delhi Public School writ challenging the order of termination is not maintainable.;