KOCHHAR, J. - (1.) RAJASTHAN Shikshan Prashikshan Vidyapeeth Samiti, Shahpura Bagh, Amber Road, Jaipur, the respondent No. 2 Herein, (hereinafter to be referred as the society) is a society registered under the societies registration act and is running acollege under the name of prachya vidya-peeth. dr. bajrang lal sharma, the petitioner, was appointed on the post of lecturer (vyakarana) vide order dated 3-9-1987 after being selected by the selection committee of the society and was placed on probation for a period of one year. The period of probation of the petiti-oner expired on 6-8-1988, but no order of confirmation or terminating the services of the petitioner was passed and he continued to be in service till vide order dated 6-10-1990 his period of probation was extended till further orders vide order dated 15-2-1991 the society terminated the services of the petitioner with immediate effect the petitioner, thereupon, filed a writ petition in this court under article 226 of the constitution of India stating that the society was getting 60% aid from the Government of RAJASTHAN and the recruitment and service conditions of the teachers appointed in the college run by the society were regulated under the provisions of Grant-in-aid to Non-Governmental Educational,cultural and Physical Education Institutions in RAJASTHAN Rules, 1963 (the 1963 Rules) and that the appointments were to be made by a Selection Committee consisting of the members which necessarily had to include a nominee of Sanskrit Education Department of the State of RAJASTHAN and that the disciplinary control also vested in the Government as an appeal had been provided against the order of punishment passed by the society. It has been alleged that the appointment of the petitioner had been approved by the Sanskrit Education Department vide order dated 7-2-1971 issued by the Director of Sanskrit Education, RAJASTHAN, who had sent copy of the said order to the society. The petitioner stated that the society had arbitrarily and unjustifiably terminated the services of the petitioner and that he had personally approached the principal of the college as well as the Secretary of the society and had brought to their notice that he was a confirmed Lecturer as his appointment had been approved by the Director, Sanskrit Education, RAJASTHAN and that he was being removed from service without giving any opportunity of hearing although his period of probation, which could not be extended beyond two years, had long expired. The petitioner prayed that the order dated 15-2-1991 terminating his services be quashed and set aside and the society be restrained from making any selection to the post of Lecturer (Vyakarana) in pursuance of the advertisement already issued in this respect and further to pay all dues to him with interest. The matter came up for admission before a learned Single Judge of this court, who noted that there was conflict in some of the decisions of this court about the maintainability of the writ petition and framed the following two questions for being adjudicated by a Bench of three Judges; (1) whether a private educational institution, which receives grant-in-aid from the Government and which is governed by the provisions contained in 1963 Rules can be considered as an agency or instrumentality of the State and, therefore, amenable to writ jurisdiction; and (2) whether the persons employed in such institutions are entitled to the remedy of reinstatement? The matter was placed before the Hon'ble Chief Justice under whose order this reference has been placed before us.
(2.) WE have heard the learned counsel for the parties besides hearing the learned members of the Bar Associations at Jaipur as well as Jodhpur who were nice enough to attend the court and address arguments to assist the court to come to a rightful decision. The question whether a society registered under the Societies Registration Act can be said to be a instrumentality or agency of the State came up before the Apex Court in case Ajay Hasia Vs. Khalid Mujib Sehravardi (1 ). The Court observed as under: - "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 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 the 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 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. We find that the same view has been taken by Chinnappa Reddy, J. in a subsequent decision of this Court in the U. P. Warehousing Corporation vs. Vijay Narayan Vajpayee and the observations made by the learned Judge in that case strongly reinforced the view we are taking particularly in the matrix of our constitutional system. " Applying the abovesaid test it was held that the society which was running the Regional Engineering College. Sri Nagar with the funds provided by the Central and State Government and the affairs of which were being controlled by the governmental authorities was an instrumentality and agency of the State and was amenable to writ jurisdiction. In All India Sainik Schools Employees' Association Vs. Sainik Schools Society (2) it was held that the entire funding of the society was by the State Government and the Central Government and the over-all control also vested in the governmental authorities and that the main object of the society was to run schools and prepare students for the purpose of feeding the National Defence Academy and, as such, the society was an instrumentality and agency of the State. In Tekraj Vasandi Vs. Union of India (3), the question before the Court was whether the Institute of Constitutional & Parliamentary Studies (ICPS), a society registered under the Societies Registration Act, was an instrumentality or agency of the State and it was held that although the funds for running the society was provided by the Government and high dignitaries of the Government were associated with the administrative set up of the IPCS, it was not the 'state' within the meaning of Article 12 of the Constitution of India.
(3.) IN Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust V. VR Rudani (4), it was held that a trust registered under the Bombay Public Trust Act and which was receiving aid and was discharging public function by way of imparting education to the students, was amenable to writ jurisdiction. In Unni Krishnan,jp & other Vs. State of Andhra Pradesh & others (5), a Constitution Bench of the Apex Court noted with approval the abovesaid decisions and it was further held that education is the responsibility of the Government and that educational institutions imparting education to the students, irrespective of their receiving aid, discharge public duty. In Chander Mohan Khanna Vs. National Council of Educational Research And Training And others (6), a Division Bench of the Apex Court held that the National Council of Educational Research and Training, a society registered under the Societies Registration Act, was not an instrumentality or agency of the State although it was receiving grants from the Government, who had the control over it only for the purpose of utilisation of the grant as no governmental function was performed by the said society. ;