Navin Chandra Sharma, J.
1. Seth Motilal College, Jhunjhunu, is an educational institution at Jhunjunu, and it is managed by Shri Jhootalal Educational Society. The Government of the State of Rajasthan grants 90 per cent financial aid to this institution.
2. On the basis of an application dated 2nd June/86, made by the petitioner, Chandra Prakash Chaturvedi, and personal interview on 3rd Oct.,'86, the petitioner was appointed as a Lecturer in Political Science, in Seth Motilal College, Jhunjhunu (for short, 'the College', hereinafter), on a temporary basis, with effect from the date he joined his duties till the last date of the current session 1986-87. It was specified in the appointment-letter (Annex. 1) that the appointment would be subject to the approval of the current session 1986-87. It was specified in the appointment by the Director of College Education, Rajasthan and University of Rajasthan, and the rules & regulations of the institution in force, or which might be enacted thereafter. During the temporary period, the appointment could be terminated on one month s notice on either side at any time, or paying one month's salary in lieu thereof. The temporary period of appointment was automatically to be over be the last date of the current academic session 1986-87. The petitioner was asked to join on any date from 5th Nov., to 11th Nov.,'86. The petitioner Joined this appointment on 5th Nov.,'86. On 1st June,'87, the Principal of the College, addressed a communication (Annex,3), to the Director of College Education, Rajasthan, Jaipur, seeking permission to appoint inter alia the petitioner as Lecturer in Political Science, from the beginning of the academic session 1987-88, It was mentioned in this communication that considering the work-load in History, Political Science & Economics subjects, three posts were sanctioned to the College upto 6th May,'87, vide the letter of the Director, College Education, deated 1st Jan. ,'87. It was further mentioned that in the subjects of History & Political Science, temporary posts were being given to the College, for the last three years. The petitioner had been appointed by the Selection-Committee, in which the Government-nominee was also present. Considering the unnecessary expenditure in interview, and in the interest of students' studies, it was requested that the Principal of the College might be allowed to appoint the petitioner as Lecturer in Political Science, from the beginning of the session. It appears that in pursuance of the letter dated 1st Aug.,'87, from the office of the Director, College Education, Rajasthan, Jaipur, the petitioner was appointed provisionally as a Lecturer in Political Science, with effect from 1st Aug.,'87, vide provisional appointment letter (Annex. 2). It was specified that the appointment was against a vacancy in Political Science, likely to be created on finalisation of admissions for the academic session 1987-88. The provisional period of the petitioner was to be over automatically, if the post was not created/sanctioned by the Director, College Education. It was further mentioned, that the petitioner would not get any emolument whatsoever for the provisional period, as agreed by him. On creation of work-load and sanction of the post by the Director, College Education, the provisional appointment of the petitioner was to be converted in terms of the post, as sanctioned by the Director, College Education. Thereafter, it appears that the post of Lecturer in Political Science, had been approved permanently by the Director, College Education, on the basis of work-load, with effect from 1st Aug.,'87, and consequently, the petitioner's provisional appointment, made vide Annexuie-2, was converted into an appointment on one year's probation with effect from 1st Aug.,'87. it was mentioned in the appointment-letter dated 5th Oct.,'87 (Annex.5) that the petitioner's services would be guided as per the terms & conditions laid down in the agreement-from, prescribed by the Education Department for the aided institutions, which the petitioner would execute. The petitioner was to abide by the amendments in the agreement-form, made by the Education Department, later on. During the probation period, the appointment could be terminated on one month's notice on either side, at any time, or paying one month's salary in lieu thereof.
3. On the basis of a circular dated 18th May. '81 (which had been issued by the Joint Director of College Education, Rajasthan), the petitioner requested the College Authorities that he was entitled to appointment on permanent basis with effect from the date of his joining as Lecturer in Political Science, i.e. 5th Nov.,'86 and that he an agreement should be treated as permanent lecturer with effect from 5th Nov.,'87. An agreement (Ex.6) was executed by the petitioner on 1st Aug. '87. On 1st Aug. '88, the Secretary pf the College, by order (Annex. 7), extended the probationary period of the petitioner for one year, with effect from 1st Aug.,'88 on the same terms & conditions, as were contained in the appointment-letter dated 5th Oct. '87.
4. It is alleged that on 30th July, '89, the petitioner was told by the Secretary of the College that his services were no more required in the College after 31st July, '89. The petitioner asked for issuing him termination-letter. But, the Secretary of the College gave oral termination-order terminating the services of the petitioner with effect from 1st Aug.,'89.
5. It appears from Annexure-8, dated 31st July,'89, issued by the Principal of the College that the Governing Body of the College, in its meeting, held on 29th July,'89, had assessed the performance of the petitioner during the probationary period, and had found it to be quite unsatisfactoiy. It was found that the petitioner had neglected his duties and behaved in indisciplined manner with the students and also with the principal of the College. Thus, his performance was considered to be quite unsatisfactoiy, and the Governing Body of the College did not find him competent and otherwise suitable. Consequently, it decided to terminate the appointment of the petitioner and to relieve him of his services on 21st July,'89, An account-payee cheque for Rs. 5500/-, dated 31st July,'89, as salary for the month of July,'89 and one month's notice-pay, was enclosed with the letter (Annexure-8), and was sent by the Principal, of the College, to the petitioner.
6. The petitioner alleges that the object of Shri Jhootalal Education Society, Jhunjhunu, Includes Imparting of school and college education and scientific, medical, agricultural and adult education. Imparting education was basically a State function. Apart from that, the State Government grants 90 per cent aid to this institution, and the institution is controlled by the State of Rajasthan. The Society has the representation of Government nominees, and it keeps effective financial and pervasive control over the Society. Even temporary appointments are subject of the approval of the Director, College Education. The Society is a repository of public trust and public funds, and consequently, it falls within the meaning of 'other authorities' under Article 12 of the Constitution of India, or it is an agency or instrumentality of the State. The writ petition is consequently maintainable under Article 226 of the Constitution of India.
7. The petitioner relies upon Rule-9 of the Grant-in-Aid Rules for Educational & Cultural Institutions In Rajasthan, which is said to provide that if within three months after the expiry of probation, no notice of termination of the agreement or of extension of the period of probation is received by the teacher, he would be treated as confirmed in his appointment. The action of the respondents in terminating the services of the petitioner, is a did to be arbitrary, perverse, illegal and in violation of Rule-9 of the Grant-in-Aid Rules. The petitioner has also complained of violation of the principles of natural justice, and of the provisions contained in Article 16 & 311 of the Constitution of India. The petitioner states that the period of probation was over on 31st July, '88, and till then, there was nothing against the petitioner. There was no material for passing the order dated 1st Aug., '88, to extend the period of probation for one year, and the petitioner should have confirmed at that very juncture. The order of termination is said to be stigmatic and has been passed without holding a proper enquiry, with an opportunity to the petitioner to show cause. The petitioner has prayed in his writ petition that the agreement (Annex. 6) may be declared to be void; the oral termination-order be quashed; and the respondents be directed to continue the petitioner in the service. The order dated 31st July,'89 (Annex.8) may also be directed to be illegal, and the petitioner be reinstated, with all consequential benefits, the petitioner has prayed further.
8. The respondents seriously dispute the maintainability of the writ petition, and they allege that the Seth Jhoota Lal Educational Society is a society, and the College is a private college. Both are non-statutory bodies and are not amenable to writ jurisdiction under Article 226 of the Constitution of India. The Society is a registered body consisting of private individuals. The services of the employees are governed by the Rajasthan Grant-in-Aid Rules, 1963 (For short, 'The Rules' hereinafter), which are not statutory in character. Mere receiving of financial aid from the Government of Rajasthan is not sufficient to make the Society or the College to be a statutory body. It is not a State within the meaning assigned to this term by Article 12 of the Constitution of India. The respondents have also stated that the services of the petitioner were on probation upto 31st July, '89. The Governing Body met for consideration of the service-period of the petitioner, and since it was found by the Governing Body that the service of the petitioner were absolutely unsatisfactory during the probation period, it was decided to discharge him from service, and to this effect, an order was passed on 31st July,'89, terminating the services of the petitioner. The first appointment order dated 4th Oct., '86 was for a temporary period, which automatically came to an end on the last date of the academic session 1986 87. When the next, academic session 1987-88 commenced, the post was temporary, and as such, the petitioner was given provisional appointment by order dated 3rd Aug., '87. This post was made permanent with effect from 1st Aug., '87, and the petitioner was appointed on probation. The work of the petitioner during the probation period, was exclusively unsatisfactory. He was warned time & again to improve his working. The Principal of the College had received a number of complaints from the students that the petitioner was not taking the classes and was not attending the lectures. Letters were issued to the petitioner to that effect, but, without any result. According to the Rules, when an appointment is made on probation, an agreement has to be executed. The same was executed by the petitioner on 1st Aug., '87. In the agreement, the period of probation was one year, and it could be extended for one more year. The petitioner had been appointed with effect from 1st Aug., '87, for one year on probation. His period of probation was to complete on 31st Aug. '88, but since his services were not found satisfactory, the probationary period was extended for one more year, so that, he might improve. His matter was considered by the Governing Body, in its meeting held on 29th July, '89, and his overall record for the purposes of assessment was found to be unsatisfactory, and therefore, his services were terminated by order dated 31st July,'89. Rule-9 of the Rules, was not applicable, and even if it applied, it was non-statutory provision, and its violation did not give any right to the petitioner to approach this Court. The protection under the provision of Article 311 of the Constitution, was not available to the petitioner. Full opportunity was afforded to the petitioner, for improving his performance, but, dispute that, his performance was found to be unsatisfactory. It was not necessary for the respondents to have given any opportunity of hearing, to the petitioner, since it was a termination-order simpliciter on account of unsatisfactory services while on probation. The respondents have, therefore, prayed that the writ petition may be dismissed.
9. The first question that arises for determination is as to whether the writ petition against the respondents, is maintainable under Article-226 of the Constitution of India. As already stated, the petitioner has challenged the termination of his services on the ground that the same is violative of Rule-9 of the Rules; that there has been violation of Articles 16 & 311 of the Constitution of India; that there has also been violation of the principles of natural justice; and that the termination order is stigmatic, and has been passed without holding a proper enquiry and without affording the petitioner an opportunity of being heard. It has also been stated that the termination-order has been passed by the Principle of the College, without seeking prior approval of the Director of College Education.
10. The scope & ambit of the term, 'State', as defined in Article 12 of the Constitution of India, has been very well settled by a catena of decisions of the Supreme Court, and a consideration of those decisions results in the following conclusions:
1. The definition of the term, 'State' in Article-12 of the Constitution is an inclusive definition. The words, 'other authorities within the territory of India' cannot be read as ejusdem generis with either the Government and the Legislature or local authorities. The words are of wide amplitude. The local or other authorities can be under the control of the Government of India or the Government of various States, but, that is not a must. Even autonomous authorities which are not under the control of the Government at all, can be 'local or other authorities. The control envisaged by the words, 'under the control of the Government of India' in Article 12 is not the control which arises out of mere appointment, payment and the right to take disciplinary action; the control envisaged under Article 12 is a control of the functions of the authorities concerned, and the right of the Government of India, by virtue, of that control is to give directions to the authority to function in a particular manner with respect to such functions. Quasi-judicial authority. It cannot be said to be under the control of Government of India for in the very nature of things, where rule of law prevails, it is not open to the Government of India or the Government of a State to direct such authority to decide a particular matter before it in a particular manner. Control is possible in the case of a purely executive or administrative authority.
2. It is immaterial for the purpose of Article-12, whether the 'authority' is created by statute or under a statute, or it is a Government Company, or a company formed under the Companies Act, 1956, or that it is a society formed under the Cooperative Societies Act, or registered under the Societies Registration Act. If the functions of the 'authority' are of public importance and closely related to governmental functions, it is a relevant factor in classifying the 'authority' as an instrumentality or agency of Government.
3. The State, as constituted by the Constitution, has specifically been empowered under Article 298 to carry on any trade or business and also under Article 19(IXth In Part-TV, the State has been given the same meaning as in Article 12, and one of the Directive Principles of State policy laid down in Article 46 is that the State shall promote with special care the educational and economic interests of the weaker section of the people. The expression, 'other authorities' would thus include all constitutional or statutory authorities on whom powers are conferred by law for the purpose of carrying on commercial activities or to promote the educational and economic interests of the people. Thus, the words, 'other authorities' are wide enough to include all bodies created by or under a statute on which powers are conferred to carry out governmental or quasi-governmental functions. The public nature of the function, if impregnated with governmental character, or tied or entwined with Government or fortified by some other additional factor, may render the corporation an instrumentality or agency of Government.
4. 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. In the case of statutory corporations, who may have no shares or shareholders, it would be a relevant factor to consider whether the administration is in the hands of a Board of Directors appointed by the Government, through this consideration may not be determinative. If extensive and unusual financial assistance is given and the purpose of the Government is giving such assistance coincide with the purpose for which the corporation is expected to use the assistance and such purpose is of public character, it may be relevant circumstance supporting an inference that the corporation is an instrumentality or agency of Government. If there is an instrumentality or agency of the State which has assumed the garb of a Government company, it does not follow that it thereby ceases to be an instrumentality or agency of the State. For the purpose of Article-12, one must necessarily see through the corporate veil to ascertain whether behind that veil is the face of an instrumentality or agency of the State. The combination of State aid coupled with an unusual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory Junctions of the State may largely point out that the body in 'State.'
5. It may also be a relevant factor to consider whether the corporation enjoys monopoly status which is State-conferred or State-protected. State-conferred or State-protected monopoly status would be highly relevant in assessing the aggregate weight of the corporation's ties to the State.
6. There is no cut-and-dry formula which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not, so as to provide an unfailing answer. No one single factor will yield a satisfactory answer to the question and the Court will have to consider the cumulative effect of the above various factors and arrive at its decision on the basis of a particular inquiry into the facts and circumstances of each case. It is the aggregate or cumulative effect of all the relevant factors that is controlling.
7. Horizon of Article 12 of the Constitution has been expanded by the Supreme Court to inject respect for human rights and social conscience in our corporate structure, in various leading decisions.
11. The above conclusions have been drawn from the decisions of their Lordships of the Supreme Court, in the cases of:
1. Bidi Supply Co. v. Union of India : 29ITR717(SC) .
2. Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC 1621 at pp. 1666, para 118.
3. K.S. Ramamurthy Reddiar v. Chief Commissioner, Pondicherry and Anr. : 1SCR656 .
4. Rajasthan State Electricity Board v. Mohanlal : (1968)ILLJ257SC .
5. Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr. : (1975)ILLJ399SC .
6. Sabhajit Tewary v. Union of India and Ors. : (1975)ILLJ374SC .
7. Mysore State Road Transport Corporation v. Devraj Urs. : (1976)IILLJ306SC .
8. Ramana Dayaram Shetty v. The International Airport Authority of India and Ors. : (1979)IILLJ217SC .
9. Managing Director, UP Warehousing Corporation v. Vijay Narayan Vajipayee : (1980)ILLJ222SC .
10. Som Prakash Rekhi v. Union of India and Anr. .
11. Ajy Hasia etc. v. Khalid Mujib Sehravardi and Ors. : (1981)ILLJ103SC .
12. B.S. Minhas v. Indian Statistical Institute : (1984)ILLJ67SC .
13. P.K. Ramchandra Iyer and Ors. v. Union of India and Ors. : (1984)ILLJ314SC .
14. A.L. Kalra v. The Project and Equipment Corporation of India Ltd. : (1984)IILLJ186SC .
15. The Gujarat State Financial Corporation v. Lotus Hotels Pvt. Ltd. : AIR1983SC848 .
16. Workmen, Food Corporation of India v. Food Corporation of India : (1985)IILLJ4SC .
17. Workmen of Hindustan Steel Ltd. v. Hindustan Steel Ltd. : (1985)ILLJ267SC .
18. Central Inland Water Transport Corporation Ltd. and Anr. v. Tarun Kanti Sengupta and Anr. : (1986)IILLJ171SC .
19. Miss Lena Khan v. Union of India and Ors. : 2SCR727 .
20. Ravindra Kumar Misra v. U.P. State Handloom Corporation Ltd. 1987 (Supp.) SCC 739.
21. .K. Agarwal v. Gurgaon Gramin Bank 1987 (Supp.) SCC 643.
22. Prathama Bank, Moradabad v. Vijay Kumar Goeal and Anr. : 3SCR935 .
23. All-India Sainik Schools' Employees' Association v. Sainik Schools' Society (1989) Supp. 1 SCC 205.
24. Tekraj Vasandi v. Union of India and Ors. : (1988)ILLJ341SC .
25. Bank of India v. P.A. Station and Ors. : 1SCR1010 .
26. Dwarkadas Marfatia & Sons v. Bombay Port Trust : 2SCR751 .
27. Mahabir Auto Stores v. Indian Oil Corporation : 1SCR818 .
28. Chairman, School of Buddhist Philosophy, Leh v. Makhan Lai Matoo and Anr. : (1991)ILLJ610SC .
29. Delhi Transport Corporation v. DTC Mazdoor Congress : (1991)ILLJ395SC .
30. Chander Mohan Khanna v. NCERT : (1992)ILLJ331SC .
12. Seth Juthalal Education Society, Jhunhunu, running the College, is a society registered under the Societies Registration Act, 1958. The registered office of the Society is situated at Jhunjhunu, in the State of Rajasthan. The object of the Society is to run, maintain and improve Seth Motilal College, Jhunjhunu; Seth Motilal Secondary School, Jhunjhunu; to establish, take-over and maintain other schools, colleges, libraries, reading-rooms, laboratories, lecture-halls, hostels etc. The management & control of the affairs of the Society have been entrusted to Governing Body of various persons belonging to Jhunjhunu and are doing business mostly at Kanpur. Nominee of M/s. Motilal Tulsian Charity Trust and of any other charitable trust or institution or of company or of firm giving donation of at least Rs. 10,000/ for the objects of the Society can become donor members subject to the acceptance of the Governing Body. Any person who rendered eminent services to the Society, or who, on account of his education or position or any other reason, is in a position to render valuable help and advice, can be a Honorary Member of the Society. A person who pays Rs. 500/- per annum as membership-fee, can become ordinary member of the Society, subject to the acceptance of the Governing Body. A person, whose membership is considered by Society useful by virtue of his holding some office under the Management of the Society, may be taken up as Ex-Officio Member. The Governing Body shall be the Chief Executive Authority of the Society, and shall carry into effect the policy and programme of the Society. The Governing Body shall have the power to expend the funds of the Society in such manner as it shall consider most beneficial for the purposes of the Society. It can open accounts and operate upon the same. Vast Power of management & control are conferred on the Governing Body, by the rules & regulations of the Society. The. Society receives funds from Shri Motilal Tulsian Charity Trust. The accounts of the Society: are to be audited once in a year by a Chartered Accountant or by a firm of Chartered Accountants. These rules & regulations of the Society or its Memorandum of Association do not show any governmental control over the management of the Society, or over the College.
13. It is true that the Rajasthan State Government grants 90 per cent financial aid to the College. Grant of financial aid by the State Government, is governed by the Rules. These rules are in the nature of executive instructions, and they are not framed under any statute. The broad features of the Rules is that all institutions functioning in Rajasthan for the educational & cultural development and physical culture of the people, are eligible for different kinds of grants, which may be paid at the direction of the sanctioning authority. The different kinds of grants are, recurring grants, non-recurring grants towards equipment/buildings, and such other grants as may be sanctioned by the Government from time to time. Before the grant is made, the institution has to agree to comply with certain conditions. The conditions are that the records & account of the institution shall be open to inspection and audit by persons authorised by Government, or the Education Department, or the Accountant General. Admissions and all facilities including free studentship, half-free-studentship provided by the institution, shall be available to every section of people without any distinction of caste or creed. Institution is not to be run for the profit of any individual and its Governing Body/Council of Management should be such as can be trusted to utilise its assets for the furtherance of the objects of the institution. In the event of the Government being satisfied that a serious dispute exists in the Managing Committee or Governing Board of the institution, which hampers the smooth running, the Government can suspend the Governing Body/Council or the Managing Committee and appoint an Administrator, to exercise control over the asset and to run the institution till a new Governing Body/Council or Managing Committee is formed according to the rules of the institution. The institution has to promptly comply with all instructions, issued by the department, for the proper running of the institution. The scale of tuition and other fees earned from the students will not be lower than the scale laid down by the Government. No grants would be admissible for the starting of a new course, class, section or subject, unless previous permission has been obtained from the department. The institution cannot appoint staff on a temporary basis for more than two years, without the permission of the Director of Education. The age of superannuation of teachers, is also specified. The conditions of service of every member of the teaching and ministerial staff are to be governed by an agreement, executed by him and the Governing Body/Council, in the form given in Appendix-3 to the Rules. No person of the staff of the institution can be dismissed or removed or reduced in rank, unless, he has been given a reasonable opportunity of showing cause. An appeal lies to the authority mentioned in Appendix-V against every order of Governing Body/Council. Institution carrying on work of education and experimental lines in accordance with the criteria laid down by the Department of Education, can receive 90 per cent aid of the approved expenditure of the previous year plus likely annual increment to staff. The Managing Committee has to consist of 18 members plus head or heads of the institution. Not more than 2/3 of the management shall belong to any one community, caste or sect. The Education Department would nominate one member on the Managing Committee, who would be a Senior Education Officer, or eminent education.
14. The above provisions in the Rules only go to show that 90 per cent of the approved expenditure of the institution is advanced by the State Government, to respondent No. 1. The financial assistance can be extensive, but, that alone is not sufficient to support an inference that respondents Nos. 1 81 2 are instrumentalities or agencies of the Government. The Rules clearly go to show that there is no unusual or even substantial degree of control of the State Government, over the management. The management 8l control are entirely with the Governing Body of the Society. The Education Department can only nominate one member out of 15 members, in the Managing Committee of the Society. The majority of member of the Society can belong to one caste or creed. Whatever little control, the Director of Education of the Government has, is only to see that its financial aid is utilised for the purposes for which it is given. The Government appoints Administrator only when there is a serious dispute in the Managing Committee or in the Governing Body, and that also for a temporary period till the Managing Committee is formed according to the rules, or the dispute is settled otherwise.
15. In Ajay Hasia's case (supra), the Board of Governors or the society consisted of the Chief Minister of the State as Chairman; three nominees of the State Government; three nominees of the Central Government; one representative of the All India Council for Technical Education; the Vice-Chancellor of the University of Jammu & Kashmir; two industrialists/technologists, in the region, to be nominated by the State Government; one nominee of the Indian Institute of Technology of the region; one nominee of the University Grants Commission; two representatives of the Faculty of the College; and the Principal of the College. The State Government had the power to remove any member of the Society, other than a member representing the Central Government, from the membership of the Society, with the approval of the Central Government. This goes to show that in Ajay Hasia's case (supra), there was deep & pervasive control of the State, over the affairs of the Regional Engineering College, Srinagar, and it was virtually an agency or instrumentality of the State Government.
16. In Guru Nanak Khalsa High School's case (AIR 1985 SC 364), the question decided was with regard to amenability to writ-jurisdiction under Article 227 of the Constitution and not the question whether the School was a State or not.
17. Mere getting State-aid is not sufficient to make a society or institution a 'State', unless it is coupled with an unusual degree of control of the Government over the affairs of the society/institution. That being absent in the instant case, I am not ready to hold that the Society or the College is 'other authority', so as to make it a 'State' within the meaning assigned to the term, by Article-12 of the Constitution of India.
18. The learned Counsel strongly urged that even if respondents Nos. 1 & 2 are not State within the meaning of Article-12 of the Constitution of India, still the writ petition is maintainable under Article-226 of the Constitution. It was urged that for a welfare State, it is obligatory to provide education to its citizens, and that imparting of education is a function of public nature and is of public importance. Under Article 29(2) of the Constitution, it is a fundamental right that no citizen can be denied admission to any educational institution, receiving aid out of State-fund, on grounds of religion, race, caste, language etc. It was submitted that the financial aid given by the State Government to respondent. No. 1 is governed by the Rules, and grants can be given only on the conditions specified in the said Rules. Even an appeal lies to the Director of College Education, against every order of the Governing Body imposing punishment. Thus, public functions & duties are attached to the institution and the Governing Body, and therefore, the writ petition is maintainable under Article 226 of the Constitution of India.
19. There is no doubt that the maintainability of a writ petition under Article-226 of the Constitution, does not depend upon the answer to the question whether a particular body is 'State' within the meaning of Article 12 of the Constitution or not. The language used in Article 226 of the Constitution, is very wide, and the powers of the High Court extend to issuing or orders, writs or directions, including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition & certiorari, as may be considered necessary for infringement of the fundamental rights and for any other purpose. Directions, orders or writs can be issued by the High Court to any person or authority, including, in appropriate cases, any Government within the territories of which it exercises jurisdiction. In the view of the express provisions in our Constitution, the Court need not now look back to the early history or the procedural technicalities of these writs in English Law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. It can make an order or issue a writ in the nature of certiorari, mandamus etc., in all appropriate cases and in appropriate manner, so long as it keeps to the board and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writ in English Law. The High Courts, however, cannot function arbitrarily under Article 226, but, through defined channels see Basappa v. T. Nagappa : 1SCR250 ; and Dwarkanath v. Income-Tax Officer, Special Circle, D-Ward, Kanpur : 57ITR349(SC) .
20. Reference may be made to the decision in Manmohan Singh Jaitla v. Amir Singh and Ors. : (1985)ILLJ514SC . In that case, Guru Nanak Khalsa High School was an aided school, and was governed by the Punjab Aided Schools (Security of Service) Act, 1969. The School had dispensed with the services of the Headmaster, and the Act, 1969. The School had dispensed with the services of the Headmaster, and the Drawing-Teacher, Amir Singh, claiming to exercise power under an agreement executed by each of them with the management of the School. The School had received 95 per cent of its expenses as grants from the Government, and for contributing 5 per cent of the expenses itself. The termination of the Services was challenged by the appellant. The Punjab & Haryana High Court declined to grant any relief on the ground that an aided school was not 'other authority' under Article 12 of the Constitution, and was therefore, not amenable to writ jurisdiction of the High Court. It is important to note that there was a specific law titled, 'The Punjab Aided Schools (Security of Service) Act, 1969,' applicable to the School. The appointment of the appellant in that case was confirmed by the completent authority of the Chandigarh Administration. Coupled with this, a charge-sheet had been served on the appellant, and a disciplinary enquiry was commenced by the school management. However, the disciplinary enquiry was withdrawn, and the power to terminate the services under the agreement entered into by the appointee with the management, was invoked and exercised. This had given a clear indication as to the punitive character of the order, namely, punishment for a possible misconduct and also colourable exercise of power by resorting to the agreement. Their Lordships of the Supreme Court held that any management not in consonance with the statutory provisions beneficial to a class in need of protection cannot be given effect to if it stands in derogation of the mandatory provisions of the statute. Section 3 of the Punjab Aided Schools (Security of Service) Act, 1969 made it obligatory to hold a disciplinary enquiry before an employee of an aided school could be either dismissed, removed or reduced in rank. There was an attempt on the part of the Managing Committee of the school to circumvent the mandatory provisions of the Act, and thus there was a colourable exercise of power that smacked of mala fides as well. His Lordship Desai, J. observed as under:
The High Court clearly overlooked the point the Deputy Commissioner and Commissioner are statutory authorities operating under the 1969 Act. They are quasi Judicial authorities and that was not disputed. Therefore, they will comprehended in the expression 'Tribunal' as used in Act. 227 of the Constitution, which confers power of superintendence over all courts and tribunals by the High Court throughout the territory, in relation to which it exercises jurisdiction. Obviously, therefore, the decision of the statutory quasi Judicial authorities which can be appropriately described as tribunal will be subject to judicial review, namely, a writ of certiorari by the High Court under Article 227 of the Constitution. The decision questioned before the High Court was of the Deputy Commissioner and the Commissioner exercising powers Under Section 3 of the 1969 Act. And these statutory authorities are certainly amenable to the writ jurisdiction of the High Court.... After the decision of the Constitution Bench of this Court in Ajay Hasia v. Khalid Mujib Sehravardi : (1981)ILLJ103SC , the aided school receiving 95% of expenses by way of grant from the public exchequer and whose employees have received the statutory protection under the 1969 Act and who is subject to the regulations made by the Education Department of the Union Territory of Chandigarh as also the appointment of Headmaster to be valid must be approved by the Director of Public Instruction, would certainly be amenable to the writ jurisdiction of the High Court.
21. It may be mentioned that Guru Nanak Khalsa High School was governed by a statute, namely. The Punjab Aided School (Security of Service) Act, 1969. There was a statutory appeal by the teacher of the School, to the Deputy Commissioner and the Commissioner, Under Section 3 of the Act. The order of termination had been confirmed by the Deputy Commissioner and the Commissioner. In the garb of enforcing the terms of the agreement what was sought to be done in the case, was to impose the penalty of removal. For that, a disciplinary enquiry Under Section 3 of the Punjab Act was necessary. The order of termination was found to be mala fide.
22. The question in the instant case, whether the discharge of the petitioner was by way of punishment or not, would be considered at proper place.
23. I may discuss certain other decisions which have been relied on behalf of the petitioner, by his learned Counsel. The first decision relied upon is in the case of Principal, Rajni Parekh Arts, K.B. Commerce and B.C.J. Science College, Khambhat v. Mahendra Ambalal Shah 1986 II SVLR (1) 50. This case is not at all relevant to the point. By its order, the Supreme Court had decided contempt matter and the matter relating to quashing of criminal proceedings initiated as against the respondent by the Mandal. It also appears from the order that there were some statutory provisions governing termination of services by the college owned and run by Kelarani Mandal, Khambat, and the termination was set aside by the Gujarat Affiliated Colleges Services Tribunal, Ahmedabad, which was a statutory tribunal.
24. In Tikaram v. Mundikota Shikshan Prasarak Mandal : 1SCR339 , the appellant had challenged the orders of the Deputy Director and Director of Education and the nature of functions discharged by them while hearing appeals against orders made in disciplinary proceedings were quasi judicial in character. The appellant was not seeking any relief directly against the management on the basis of the clauses in the School Code. It was observed in the judgment:
In the instant case, the appellant is seeking a relief not against a private body but against an officer of Government, who is always amenable to the jurisdiction of the Court.
25. In the present writ petition, the petitioner is challenging the agreement entered into by him with a private body or management and also the termination order of the management of a private body and is not seeking relief against a quasi-judicial order of a public authority and as such, decision in Tikaram's case (supra) is not helpful to the petitioner.
26. In Frank Anthony Public School Employees' Association v. Union of India (1984) 4 SCC 707, the attack of the petitioner was against Section 12 of the Delhi Education Act, based on Article-14 of the Constitution. Sections 8 to 12 of the Delhi School Education Act, together comprised chapter-IV of that Act, which dealt with 'Terms and Conditions of Service of Employees of Recognised Private Schools.' However, Section 12 made chapter-IV inapplicable to an unaided minority school. The Frank Anthony Public School was an unaided minority school. The Supreme Court held that Section 12 of the Delhi School Education Act was discriminatory except Section 8(2). In the State of Rajasthan, there is no enactment like Delhi School Education Act, and the challenge in the present writ petition is not to any provision of an enactment. The decision in Frank Anthony Public School case (supra), is consequently off the mark.
27. Mr. R.C. Joshi, appealing for the petitioner strongly relied upon the decision of their Lordships of the Supreme Court in Andi Mukta Sadguru Shre Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani and Ors. : (1989)IILLJ324SC . The facts in this case were that the appellant was a trust running a science college at Ahmedabad. The college initially had temporary affiliation to the Gujarat University under the Gujarat University Act, 1949. From June 15, 1973 onwards, the college had permanent affiliation under the said Act as amended by Gujarat Act 6 of 1973. The University teachers and those employed in the affiliated colleges were paid in the pay-scale recommended by the University Grants Commission. At one stage, there was some dispute between the University Area Teachers' Association and the University about the implementation of certain pay-scales. That dispute, by agreement of parties was referred to the Chancellor of the University for decision. On June 12, 1970, the Chancellor gave his award. The Chancellor in his award inter alia provided that the revised pay-scales as applicable to teachers who joined before April 1, 1966, should similarly be applicable to those who joined after April 1, 1966, and they be continued even alter April 1, 1971. With effect from April 1, 1971, dearness allowance in respect of post -1966 teachers was also to be merged. Arrears for the period from April 1, 1966 to March 31, 1970, accruing due under the award were to be paid in the equal installments. The award of the Chancellor was accepted by the State Government as well as by the University. The latter issued direction to all affiliated colleges to pay their teachers in terms thereof. The appellants instead of implementing the award, served notice of termination upon 11 teachers on the ground that they were surplus and approached the University for permission to remove them. But, the Vice-Chancellor did not accede to their request. Then, the trust took a decision to close down the college to the detriment of teachers and students and surrendered the affiliation of the college. The college was closed with effect from June 15, 1975 with the termination of services of all the academic staff. The academic staff under law were entitled to terminal benefits but the management did not pay that. The teachers filed writ petitions in the High Court for a direction to the appellants to pay them their due salary and allowances, the provident fund and gratuity dues in accordance with the rules framed by the University and to pay them compensation that would be payable to them under Ordinance 120-E and for a further direction to pay the difference of pay payable to them on the implementation of the U.G.C. Pay-scale in accordance with Government Resolution as clarified by the award passed by the Chancellor. It is very pertinent to note that the employees were not claiming for their continuance in the service and had accepted their destiny resulting from the closure of the college. The High Court allowed the writ petition. One of the contentions raised by the appellants was that writ of mandamus was not maintainable as against the management of the college. His Lordship Shetty, J. Served:
If the rights are purely of a private character, no mandamus can issue. If the management of that college is purely a private body with no public duty, mandamus will not be issued. But, once these are absent and when the party has no other equally covenient remedy, mandamus cannot be denied. It has to be appreciated that appellant-trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliated University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. So are the service conditions of the academic staff. When the University takes a decision regarding their pay-scales, it will be binding on the management. The service conditions of the academic staff are therefore, not purely of a private character. It has superadded protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.
After dealing with the scope of mandamus in England, the learned Judge observed:
There however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The 'Public authority' for them mean every body which is created by statute-and whose powers and duties are defined by statue. So, Government departments, local authorities, police authorities and statutory undertakings and corporations are all 'public authorities.' But, there is no such limitation for our High Courts to issue the writ 'in the nature of mandamus. 'Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to 'any person or authority'. It can be issued 'for the enforcement of any of the fundamental rights and for any other purpose.. . The words 'any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the duty. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what mens the duty is imposed, if a positive obligation exists, mandamus, cannot be denied....
Here again, we may point out that mandamus cannot be denied on the ground that the duty to be enforceed is not imposed by the statute. Commenting on the development of this Law, Professor de Smith states 'To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.' We share this view. The judicial control over the fast = -expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It shall remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach in justice wherever it is founds. Technicalities should not come in the way of granting that relief under Article 226.
28. There can be no doubt that Article 226 confers wide powers on the High Court to issue writs in the nature of prerogative writs. Writs can be issued to any person or authority and apart from enforcement of any of the fundamental rights, they can be issued for any other purpose. The public duty may not necessarily be imposed by statute and may be imposed by common law, charter, custom or even contract. However, it is clear that if the rights are purely of a private character or arise out of private contract, without element of public law involved in it, no mandamus can issue. It is further clear that a dismissed employee cannot sue for specific performance of a contract for personal service.
29. Now, I may refer to the case of Dr. S. Dutt v. University of Delhi : 1SCR1236 . The appellant in this case was a Professor of Chemistry in the University of Delhi. He was not given Selection Grade. One Dr. Sheshadri was appointed Head of Department of Chemistry, and the grievance of the appellant was that he was wrongly superseded. He filed a suit for declaration that removal from his position of the Head of Department of Chemistry, was illegal. The University of Delhi, in its turn, also had certain complaints against the appellant, of misconduct. The parties agreed that mutual grievances would be investigated by Sir S. Varadachariar and Bakshi Sir Tek Chand and their decision was to be accepted as final and binding. In view of this agreement, the appelalnt withdrew his suit. These two persons gave their report. But, the appellant contended that the investigation had not been fair. The appellant made an application Under Section 33 of the Arbitration Act, for a declaration that there was no arbitration-agreement, and hence, the two referees had no jurisdiction to act or to make an award, and, in the alternative, he prayed for setting it. aside. While this application was pending the Executive Council of the University of Delhi passed a resolution, terminating the appellant's services as a Professor of the University. The application under Section 33 of the Arbitration Act was dismissed on the ground that the agreement as to the investigation by Sir S. Varadachariar and Bakshi Sir Tek Chand of the mutual grievances was not a submission to arbitration, and therefore, no application under Section 33 of the Arbitration Act lay. Then, the appellant wrote to the University, claiming under the provisions of Section 45 of the Delhi University Act. By that letter, the appellant appointed Professor M.N. Saha, as arbitrator, and called upon the respondent to nominate another arbitrator. The Executive Council of Delhi University did not propose to take any action in the matter. Ultimately, Professor M.N. Saha gave his award on 17th June, '53, in favour of the appellant. The award was filed in the Court, and the University took objections to it. The Sub-Judge overruled the objections and passed a decree making the rule of the Court. The respondent filed two appeals from this decree, which were withdrawn by the High Court, and by its order dated 26th Nov:, '54, the High Court allowed the order of the University and set aside the award. Trie matter then came before the Supreme Court. The Delhi High Court held that it was not open to the arbitrator to grant the appellant a declaration that he was still a Professor in the University, which no court could or would give him. The Delhi High Court felt that this declaration amounted to specific enforcement of a contract of personal service, which was forbidden by Section 21 of the Specific Relief Act. The Supreme Court agree with the view of the High Court, A.K. Sarkar, J., speaking for the Court, observed:
'There is not doubt that a contract of persona! service cannot be specifically enforced.... It seems to us that the present award does put port to enforce a contract of personal service when it states that the dismissal of the appellant has no effect on his status, and he still continues to be a Professor of the University. As the award in this case directs specific enforcement of a contract of personal service, it involves a legal proposition which is clearly erroneous...A statutory invalidity of an act is a thing, entirely different from enforcing a contract of personal service.... It was not the appellant's case before the arbitrator that the dismissal was ultra vires the statute or otherwise a nullity.
30. Reference may next be made to the decision in S.R. Tewori v. The District Board, Agra, and Anr. : (1964)ILLJ1SC . In that case the District Board, Agra, resolved to terminate, after giving salary for three months, in lien of notice, the employment of the appellant who had held the office of Engineer under the Board. The appeal filed by the appellant to Government of India, against the order of terminating his employment, was dismissed, and he, therefore, filed a writ petition in the Allahabad High Court. The High Court dismissed the writ petition, holding that under the fourth proviso to Section 82 of the District Boards Act, 1922, the Board had the power to appoint and to determine the employment, of an Engineer of the Board, and unless the determination was by way of punishment, it could be made in the manner provided by Rule 3-A, Clause (iv), after giving notice of three months in lieu of notice, or a sum equal to salary for the three months in lieu of notice. The matter came up in appeal before the Supreme Court. His Lordship, Shah, J. observed as follows:
Under the common law, the Court will not ordinarily force an employer to retain the services of an employee who he no longer wishes to employ. But, this rule is subject to certain well-recognised exceptions. It is open to the Courts in an appropriate case, to declare that a public servant who is dismissed from service in contravention of Article 311 continues to remain in service, even though by so doing the State is in effect forced to continue to employ the servant whom it does not desire to employ. Similarly, under the industrial law, jurisdiction of the labour and industrial tribunals to compel the employer to employ a worker, whom he doss not desire to employ is recognised. The Courts are also invested with the power to declare invalid the act or a statutory body, if by doing the act, the body has posed by statute, even if by making the declaration the body is compelled to do something which it does not desire to do.
An order of determination of employment which is not of the nature of an order of dismissal, has, by virtue of the rules framed under Clause (d) of Section 84 to be exercised consistently with Rule 3-A, and an order of dismissal involving punishment must be exercised consistently with the rule or regulation framed under the notification dated March 25, 1946 under Section 84(b) and (d). We, therefore, hold that the Board had the power to determine the employment of the appellant and the Board purported to exercise the power.
It was never contended (by the appellant) that the order terminating the employment was one, in the reality of the nature of dismissal as punishment....
31. In Executive Committee of U.P. State Warehousing Corporation v. Chandra Kiran Tyagi : (1970)ILLJ32SC , it was held:.the position in law is, that no declaration to enforce a contract of personal service will be normally granted. But, there are certain well-recognised exceptions to this rule, and they are to grant such a declaration in appropriate cases regarding 11) a public servant, who has been dismissed from service in contravention of Article 311(12) Reinstatement of a dismissed worker under Industrial Law by Labour or industrial Tribunals. 13) A statutory body whom it has acted in breach of a mandatory obligation, imposed by statute.
The above view was reiterated in Bank of Barada v. Jeewanlal Mehratra : (1970)IILLJ54SC .
32. Hon'ble Ray, J., in Sirisi Municipality v. Ca-celia Kom Francis Tellis AIR 1978 SC 85, stated that the cases of dismissal of a servant fall under three broad heads. The first head relates to relationship of master and servant governed purely by contract of employment. Any breach of contract in such a case is enforced by a suit for wrongful dismissal and damages. Just as a contract of employment is not capable of specific performance similarly breach of contract of employment, is not capable of finding a declaratory judgment of subsistence of employment. A declaration of unlawful termination and restoration to service in such a case of contract of employment would be indirectly an instance of specific performance of contract for personal services. Such a declaration is not permissible under the law of Specific Relief Act. In that case, the dismissal of the respondent was found to be in violation of Rule 143 of Sirsi Municipal Rules, framed under the Bombay District Municipal Act, 1901.
33. The facts in Executive Committee of Vaish Degree College, Shamll and Ors. 1976) 2 SCC 58, were that the Vaish Degree College in the district of Muzaffarnagar, was registered under the Registration of Cooperative Societies Act, and its affairs were managed by an Executive Committee. In 1957, the Vaish Degree College was affiliated to Agra University, and as a consequence thereof, it was agreed to be governed by the provisions of the Agra University Act and the statutes & ordinances made thereunder, father on. with the establishment of the Meerut University in the year 1965, the College got affiliated to Meerut University. The respondent was appointed as Principal of the College, on permanent basis, from 1st July, 1964, and his appointment was approved by the Vice-Chancellor of the Agra University. Two year later, difference arose between the Executive Committee of the College and the respondent. On 12th March, 1967, the Executive Committee, by a resolution, terminated the services of the respondent. This resolution was amended by another resolution, on 29th march, 1967. Fazal All, J., speaking for the majority, held that the Executive Committee of the Vaish Degree College had an independent status having been registered under the Societies Registration Act, 1860, and was a self-governed or an autonomous body. It was affiliated to the Agra University merely for the sake of convenience and mainly for the purpose that the courses of studies prevalent in the collage might be recognised by the University, Merely because the Executive pommittee was affiliated to the University, did not make it a statutory body. On a consideration of the decisions already referred to above, it was held that normally, a court would not give a consideration that a contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer.
34. In Smt. J. Tiwari v. Jwala Devi Vidya Mandir and Ors. : AIR1981SC122 , the appellant was Principal in Jwalal Devi Vidya Mandir, which was a society, registered under the Societies' Regulation Act. The Working Committee of the Higher Secondary section of the Society passed a resolution suspending the appellant. Thereafter a charge-sheet was served upon her, and on the very next date, she filed a suit, challenging her suspension. The suit was decreed by a Single Judge of the High Court, holding that the Committee which had passed the resolution of suspension, was not properly constituted, and therefore, it had no jurisdiction to suspend the appellant. Both the parties filed appeals before Division Bench, but, they were dismissed on 17th April, 1962. After the suit was decreed by the learned Single Judge, the Executive Committee of the Society passed a resolution terminating the appellant's services with retrospective effect from the date of suspension. The appellant filed another suit, asking for a declaration that she continued in the service of respondent No. 1 and for setting aside the order terminating her services. The Division Bench of the High Court in appeals preferred before it, had taken a view that though the appellant's dismissal was wrongful, she was entitled to a decree for damages only and not to a declaration that she still continued to be in service of respondent No. 1 and to a consequent order of reinstatement. The matter came before the Supreme Court. There stood an agreement between the appellant and respondent No. 1. The Supreme Court, relying upon the decision in Vaish Degree College, Shamli (supra), held that the dismissal was wrongful, and that the appellant could only get a decree for damages and not an order of reinstatement or declaration that notwithstanding the termination of the services, she continued to be in service.
35. Deepak Kumar Biswas was a Lecturer in a private aided college in Meghalaya. The order of his appointment stated that it was subject to the approval of the Director of Public Instruction, Meghalaya. But, the Principal had assured the appellant that the Director's approval was a mere formality and that there was no jeopardy in the appointment. On getting this assurance, the appellant resigned his post in AG-Office and joined the college. However, soon, his services were terminated by the College, for want of the Director's approval. The Supreme Court In Deepak Kumar Biswas v. Director of Public Instruction and Ors. (1987) 2 SCCC 252, held that even though the Lady Keane Girl's College might be governed by the statutes of the University and the Education Code framed by the Government of Meghalaya and even though the College might be receiving financial aid from the Government, it would not be a statutory body, because, it had not been created by any statute and its exercise was not dependent upon any statutory provision. It was further held that on termination of the services of the appellant, there was no violation of the provisions of any Act or any regulations made thereunder. Accordingly, it was held that the appellant was not entitled to a declaration that he continued to be in the service of the College and that he was entitled to all benefits flowing from the declaration.
36. I may also refer to some decisions, relied upon from the side of the appellant. The rational of the decision in Karnataka State Private College's Stop-Gap lecturers' Association v. State of Karnataka and Ors. : (1993)IILLJ831SC , would not govern this case. From the narration of facts, it appears that the privately managed degree colleges in Karnataka, were receiving 100 per cent grant-in-aid and were controlled administratively and financially, by the Education Department of the State of Karnataka. His Lordship R.N. Sahai, J. observed:
Malady appears to be widespread in educational institutions as provisions for temporary or ad hoc appointments have been exploited by the managements of private aided colleges to their advantage by filling it. On one hand, with persons of own choice, at times without following the procedure, and keeping the teachers exposed to threat of termination, on the other, with all evil consequences flowing out of it. Any institution run by State fund but managed privately is bound to suffer from such inherent drawbacks, in State of Karnataka, it is basically State created problem due to defective rule and absence of any provision to effectively deal with such a situation.
In Karnataka, appointments, selections, promotions, transfers, payment of salary etc. of teachers were regulated by Government orders issued from time to time. Since, 1980, they were governed by an order issued by the Education & Youth Services Department of the State of Karnataka. Clause 5 of the said order provided that any appointment for a period of three months or less in a college shall be made subject to approval of the Director within one month from the date of appointment by the management or such authority as the management by order, might specify in that behalf. Such temporary appointments might, however, be continued for a further period of not more than three months, with one day's break when selection through the Selection Committee was likely to take time. The Director might, for reasons to be recorded in writing, refuse approval for the said appointment and the services of the person so appointed shall be terminated forthwith. It was this provision which was struck down as ultra vires.
37. In the instant case, there is no challenge to any provision contained in the Grant-in-Aid-Rules, issued by the State Government.
38. In Ishaq Mohammed etc. v. Jaipur Metals & Electrical Ltd. 1988 (1) RLR 157, Jaipur Metals & Eledtricals Ltd. which was declared as a 'relief undertaking' and the shares of which were transferred to the State Government by an ordinance, was held to be 'other authorities' under Article 12 of the Constitution, and therefore, principle of natural Justice applied to the case of termination of services of the employee.
39. Reliance was also placed on the decision in Francis John v. Director of Education and Ors. : AIR1990SC423 . In that case, the appellant was appointed as a Headmaster of a school, which was being run by the Calangute Don Bosco Educational & Welare Foundation in 1974 in the Sate of Goa. Disciplinary proceedings were started against him in accordance with the Grant-in-Aid Code, which was in force at that time, since the school was a recipient of the grant as per the Code. The findings of the Dispute Settlement Committee were approved by the Director of Education of the Government of Goa by his order dated 12th July, 1984, who permited the termination of the services of the appellant. The Principal of the School, therefore, terminated the services of the appellant as Headmaster, and the said order was ehalenged. His Lordship Venkataramiah, C.J., referred to relevant Rule 74.2 of the Grantin-Aid Code, and stated it to be a part of the public law of the land. His Lordship said that the reference of the dispute between the management of the school and the appellant, to the Dispute Settlement Committee, was made by the Director of Education in exercise of the powers conferred upon him under the Grant-in-Aid Code, which was issued by the Government in exercise of its executive power, even though, it might not have been done under a statute. The Director of Education who was a public functionary, had given his approval to the decision of the Dispute Settlement Committee before it was communicated to the school. While granting his approval to the decision, the Director of Education was discharging a Governmental function as an authority constituted for the said purpose by the Government. It was, therefore, held that the management, in the circumstances, could not have terminated the services of the appellant without the communication received by it from the Director of Education, and that in such circumstances, it could not be said that the decision was that of a just private management governed by private law. It was the part of the process of the public law which affected public exchequer. It is clear that this case related to an order of termination of a Headmaster, and was governed by Rule 74.2 of the Grant-in-Aid Code, which provide for the serving employee the grounds on which action was proposed to be taken, and it also contained provision that adequate opportunity of defence be given to the employee. It also contained provision for referring the case to the Dispute Settlement Committee by the Director, and for an appeal to the Administrative Tribunal.
40. The present case does not relate to termination of services on the basis of any disciplinary proceedings against the petitioner. In this case, the Governing Body held that the work of the petitioner during the probationary period was not satisfactory, and therefore, the services of the petitioner were terminated. The question whether this termination was by. way of punishment, would be examined in more detail hereafter.
41. It is the condition of the Grant-in-Aid Rules, 1963, that no grant shall be admissible for the starting of a new course, class, section or subject, a project, unless, previous permission has been obtained from the Education Department. It appears from Annexure R. 1/3 that one post of lecturer each in History and Political Science, was created by office-letter dated 24th Sept. 1984, of the Director of Education, in Seth Motilal College, Jhunjhunu, in the session-1984-85, and extended from time to time upto the end of session 1986-87. When the petitioner was first appointed as Lecturer in Political Science, by appointment-letter dated 4th Oct., 1986 (Annex. 1), the post of Lecturer in Political Science in the College, was a temporary post. Thai was a reason that the petitioner was appointed on temporary basis, from the date he joined his duties, till the last date of the then current session 1986 87. The order was subject to the approval of the Director of College Education and the University of Rajasthan. The approval was conveyed by the Director of College Education, vide Annexure R. 1/2.
42. On 1st June, 1987, the Principal of the College sent a letter to the Director, stating that the temporary post of Lecturer in Political Science had been sanctioned upto 6th May, 1987. Permission was sought to be obtained for continuing the appointment of the petitioner from the beginning of the session 1987-88. It appears that the petitioner was appointed provisionally as Lecturer in Political Science with effect from 1st Aug., 1987. Annexure-R. 1/3 goes to show that the post of Lecturer in Political Science was made permanent with effect from 1st Aug., 1987, by the Director of Education. It was then that an agreement (Annex.6) was executed by the petitioner, in pursuance of his appointment-letter (Annex.5). By this letter, the petitioner was appointed as Lecturer in Political Science, on one year's probation with effect from 1st Aug., 1987. It is thus clear that prior to 1st Aug.,'87, the post of Lecturer in Political Science in the College, was a temporary post.
43. Condition No. 15 in Rule-3 of the Rules, provides an institution shall not appoint staff on temporary basis for more than two years, without the permission of the Director of Education. The petitioner was appointed on temporary basis only in relation to the period from 5th Nov., 1986 to 31st July, 1987.
Rule-4 of the rules states that the conditions of services of every member of the teaching and ministerial staff appointed substantively shall be governed by an agreement executed by him and the Governing Body/Council, or the Managing Committee, in the form given in Appendix-III. The petitioner had executed that agreement. The agreement clearly provided that the petitioner's employment shall begin from 1st Aug., 1987, and that he shall be employed in the first instance for one year of probation, and that the period of probation shall in no case, exceed two years. If at the end of two years, the petitioner was not found to be competent or otherwise suitable, his appointment would be terminated. If he has confirmed in his appointment at the end of the period of probation, he shall be employed on a monthly salary of Rs. 700/- in the grade of Rs. 700-1600. This term in the agreement (Annex.6) was on the lines provided in the form of agreement (Appendix-3) to the Grant-in-Aid Rules. Clause (9) of the agreement provided that if within three months of the expiry of the period of probation, no notice of termination of the agreement or of an extension of the period of probation was received by the lecturer, he was to be treated as confirmed in his appointment. The probationary period of one year was to end on 31st July, 1988. By Annexure-R3, the probationary period of the petitioner was extended with effect from 1st Aug., 1988, for one year. This could be done under Clause (1) of the agreement. Just on the last date when the extended period of probation was to expire, the Principal of the College, in accordance with the decision taken in the meeting of the Governing Body, held on 29th July, 1989, terminated the services of the petitioner, on the expiry of the extended period of his probation on 31st July, 1988. The communication regarding the termination of the services of the petitioner is Annexure R. 1/15. In this letter, it was mentioned that the petitioner had been appointed Lecturer in Political Science with effect from 1st Aug., 1987. On the expiry of the said probationary period, the same was further extended for one year more with effect from 1st Aug., 1988, for period upto 31st July, 1989. It was noted that the Governing Body in its meeting held on 29th July, 1989, assessed the performance of the petitioner during his probationary period, and found it to be quite unsatisfactory. It was found that the petitioner neglected his duties and behaved in indisciplined manner with the students and with the Principal. His performance was quite unsatisfactory and the Governing Body did not find him competent or otherwise suitable, hence, the petitioner's services were terminated. This was done under Clause (1) of the agreement, which provided that if at the end of the period of two years, a teacher was not found competent or otherwise suitable, his appointment shall be terminated. Thus, the termination of the petitioner was in pursuance of the terms & conditions of the contract entered into by the petitioner in Seth Motilal College, Jhunjhunu. It is only when a lecturer is dismissed for insubordination, deliberate negligence in duty and serious misconduct that the lecturer is entitled to apply for a review of the decision, to the Managing Committee. The chargesheet and opportunity of hearing under and in pursuance of Clause (e) of Rule-4 of the Rules and Clause (7) of the agreement, has to be given when there is dismissal, removal or reduction in rank of the lecturer. The public law enters into contractual field when there is dismissal, removal or reduction in rank of the staff of the institution as a matter of punishment and not where there is only termination services of a lecturer, when he has not been found to be competent or otherwise suitable to be confirmed in his appointment in pursuance of the agreement. There is no quasi-judicial remedy provided to a lecturer whose appointment is terminated at the end of the probationary period on the ground that he was not found to be competent or otherwise suitable. Non-confirmation of a probationer is not a punishment. The element of public law does not enter into such a case. Reference in this connection may be made to the decisions in the cases of:
1. Purshottam Lal Dhingra v. Union of India : (1958)ILLJ544SC .
2. State of Orissa and Anr. v. Ramnarayan Das : (1961)ILLJ552SC .
3. State of Punjab and Anr. v. Sukhraj Bahadur : (1970)ILLJ373SC .
4. Ramgopal Chaturvedi v. State of M.P. : (1970)ILLJ367SC .
5. State of Gujrat v. Akhilesh C. Bhagwati (1970) 4 SCC 482.
In my opinion, the present one was a case where the intention was clearly to discharge the petitioner and not to punish him. Assessment of the work of a probationer, of the probationary period, has to be made. All that was entered in Annexure-R.1/15 was that the performance of the petitioner was unsatisfactory. He had neglected his duties and had behaved in undisciplined manner with the students and with the Principal of the College. Thus, his performance was unsatisfactory. There was only evaluation of the performance of the petitioner, during his probationary period, and it did not cast a stigma against the petitioner.
44. Reference may be made to some decisions relied on behalf of the petitioner. The decision in Madan Mohan Prasad v. State of Bihar and Ors. : (1973)ILLJ411bSC is distinguishable. It was a case of termination of a Government servant after he became eligible for pension. The Chief Minister in the State Assembly had made a statement that the services of the petitioner in that case, were not satisfactory and that the Government was considering issuing show-cause notice to him. It was held in that case that the Chief Minister's statement in the Assembly and the fact that the services of the incumbent in that case had been terminated without holding any enquiry would inevitably lead the public to believe that his services were terminated on account of inefficiency or misconduct.
45. Here, it is a case of termination of the services of probationer, at the end of his probation-period, as his performance during the probationary period was not found to be satisfactory, and he was not disciplined.
46. The next decision relied upon is in the case of Baldev Raj v. State of Punjab and Ors. : (1984)IILLJ7SC . In that case, the appellant-constable was placed under suspension for his participation in the police-agitation. He was reinstated as per the decision of the Supreme Court, but, he was compulsorily retired on the same date. It was, therefore, held that the order of compulsory retirement was not in public interest but to make a pretence of reinstatement and to get rid of the constable. This decision has no application to the facts of the present case.
47. In Jagdish v. Union of India : (1964)ILLJ418SC , instead of terminating the services by one month's notice under the terms of contract or the relevant rules, the authority proceeded to dismiss the temporary servant. The order was held to be stigmatic and was not an order simply of discharge.
48. In Madhukar Raghu Nath Nafday v. Union of India 1974 SLWR 301 there were administrative circulars of the Railway Board, prohibiting reversion in the service after 18 months, except by way of disciplinary proceedings.
49. There was no such provisions in the agreement or in the Rules, in the instant case.
50. In Shamsher Singh v. State of Punjab and Anr. 1974 (2) SLR (SC) 701, there was an enquiry to ascertain the truth of allegation of misconduct. The Enquiry Officer had given his findings on allegations of misconduct. The order of termination was because of recommendations in the report of the Enquiry Officer. It was, therefore, held to be by way of punishment.
51. In High Court of Punjab & Haryana and Ors. v. State 1975 (1) SLR 329, the order passed by the Government showed that the State had considered Rao to have committed serious irregularities which had made him unfit for consideration. It was indisputable that Rao was promoted to the post of District & Sessions Judge. The reversion carried a stigma as well as reduction in rank, and there was violation of Rule-9 of the Rules.
52. As already stated, in the instant case, the termination was in accordance with the Rules as well as the terms of the agreement, and no stigma was involved.
53. On a consideration of the entire facts of the case and the position of law, I am of the opinion that public law has not entered into the contractual field in the instant case. Even if the termination of the services of the petitioner, at the end of the expiry-period of his probation, was in any way wrongful, the remedy before the petitioner was to sue for damages. He cannot get the relief either in a suit or in the writ petition that he may be reinstated or be declared to be continued in service. That would amount to specific enforcement of personal contract of service. As no element of public law is involved in private field in the instant case, this Court will not grant any relief to the petitioner in the exercise of its extraordinary and discretionary jurisdiction under Article 226 of the Constitution of India.
54. Consequently, the writ petition fails and is hereby dismissed.
55. In the circumstances of the case, I leave the parties to bear their own costs.