JUDGMENT [ENTITY], 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 [ACT] and is running a college under the name of [ENTITY]. Dr. [ENTITY], the petitioner, was appointed on the post of lecturer ([ENTITY]) vide order dated 3-9-[SECTION]87 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 petitioner expired on 6.8.[SECTION]88, 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.[SECTION]90 his period of probation was extended till further orders. Vide order dated 15.2.[SECTION]91 the society terminated the services of the petitioner with immediate effect. The petitioner, thereupon, filed a writ petition in this Court under [SECTION] of the [ACT] 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, [SECTION]63 (the [SECTION]63 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 but the Sanskrit Education Department vide order dated 7.2.[SECTION]71 issued by the Director of Sanskrit Education, Rajasthan, who had seat 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.[SECTION]91 terminating his services be quashed and set aside and the society be restrained from making any selection to the post of lecturer ([ENTITY] 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 [SECTION]63 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.
3. The question whether a society registered under the [ACT] can be said to be a instrumentality or agency of the State came up before the Apex Court in case "[PRECEDENT]" . 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 [PRECEDENT] . 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 on 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 [SECTION].
We find that the same view has been taken by [ENTITY], J. in a subsequent decision of this Court in the [PRECEDENT] 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.
4. Applying the above said test it was held that the society which was running the Regional Engineering College, Srinagar 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.
5. In "All India Sainik Schools Employees' Association v. Sainik School Society" [SECTION]89 Supp. (1) SCC 205 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.
6. In "[PRECEDENT]" the question before the Court was whether the Institute of Constitutional & Parliamentary Studies (ICPS), a society registered under the [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 ICPS, it was not the 'State' within the meaning of [SECTION] of the [ACT].
7. In "[PRECEDENT]" it was held that a trust registered under the [ACT] and which was receiving aid and was discharging public function by way of imparting education to the students, was amenable to writ jurisdiction.
8. In "[PRECEDENT]." , a Constitution Bench of the Apex Court noted with approval the above said 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.
9. In "[PRECEDENT]." a Division Bench of the Apex Court held that the National Council of Educational Research and Training, a society registered under the [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.
10. A Division Bench of this Court in "Dr. Purshottam Nagar v. State of Rajasthan and Anr." [SECTION]91 (1) Western Law Cases (Raj.) 296 held that the Rajasthan Hindi Granth Academy, Jaipur, a society registered under the Societies Registration At, was not an instrumentality or agency of the State as it was not discharging Governmental function.
11. After going through the above said authorities and hearing the learned Counsel for the parties, we are of the view that a private educational institution, receiving aid in terms of the [SECTION]63 Rules/the Act imparting education to the students run by a society, registered under the [ACT], performs public duty/function and is an instrumentality and agency of the State and is amenable to writ jurisdiction.
12. In the present case it is the admitted case of the parties that the society has been running the college for imparting education in the State of Rajasthan and is receiving 60% aid from the Government in terms of [SECTION]63 Rules and, in accordance with the terms of said Rules, the society has to make appointments by a selection committee which must have a nominee of the Education Department of the State of Rajasthan and the conditions of service of every members of the teaching and ministerial staff shall be governed by [SECTION] which provides that an agreement has to be executed between the Governing Body of the college and the member of the staff in the form given in Appendix-Ill and any variation thereto must have the approval of Director of Education and further that salaries have to be paid in full without making any unauthorised deductions therefrom regularly every month and the Director of Education is empowered to direct the society to pay the salaries to the staff by cheque and no person of the staff of the society shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him and an order imposing such punishment has to contain reasons therefor and a copy there of has to be immediately given to the person concerned and a copy has to be sent to the Department of Education and further that an appeal lies against such punishment to the authority concerned in the Department of Education of State of Rajasthan. [SECTION] lays down conditions for grant of the aid to the educational institutions and debars the institutions from preparing or sending of candidates for an examination to beheld in another State when an examination of same nature is held in Rajasthan, unless permitted by the Director of Education to do so. It also provides that the records and accounts of the institution would be open to inspection and audit by persons authorised by the Government authorities and debars the institution from making any distinction of caste or creed for grant of facilities like free studentship, half free studentship and lays down guidelines regarding the constitution of the Management or Governing Body. It further requires the institution to supply to the Education Department list of its assets, the income of which is utilised for its expenditure. It further authorises the Government to suspend the Governing Body/Management Committee and to appoint Administrator to exercise control over the assets and to run the institution under certain circumstances and places restrictions on closing down and down grading of the institution and further makes it compulsory for the institution to comply with all the instructions issued by the Education Department for its proper running. The scales of tution and other fee to be charged from the students have also to be in accordance with the guidelines issued under this rule and even the conditions for appointment of permanent/temporary teachers have been provided under this rule. The Rajasthan Non-Government Educational Institutions Act, [SECTION]89(the Act), which received the assent of the President on 4th June, [SECTION]92 and has come into force with effect from 4th July, [SECTION]92, has also made provisions of such control of the Government on the aided institutions including the society.
13. The society, which is a private educational institution, is thus not only an aided institution being controlled by the State Government but is also performing the public duty of imparting education ana, as such, is an instrumentality and agency of the State and is amenable to writ jurisdiction. The question No. 1 is, therefore, answered in the affirmative.
14. The contention of the learned Counsel for the society and some of the learned Advocates, on the second question, is that a contract of personal service cannot ordinarily be specifically enforced and a court would not give a declaration 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, except where a public servant is sought to be removed from service in contravention of the provisions of [SECTION] of the [ACT]; or where a workman, on being dismissed from service, is sought to be reinstated under the Industrial Law and where a statutory body acts in breach or in violation of the mandatory provisions of the statute. The submission is that a person employed in a private educational institution, receiving aid from the Government cannot be said to be either a public servant or a workman under the Industrial Law or a person employed in a statutory body and, as such, no directions for his reinstatement can be issued. Reliance has been placed on the decisions of the Apex Court in cases "Executive Committee of Vaish Degree College v. Lakshmi Narain" reported as ([SECTION]76) 2 SCC 58 and "[PRECEDENT]." reported as .
15. The contention of the learned Counsel for the petitioner and of some other learned Advocates is that the [SECTION]63 Rules and the Act have made specific provisions that an employee cannot be dismissed or removed from service except after being given a reasonable opportunity of being heard against the action proposed to be taken and the appeal being provided the appellate authority has all the powers to set aside the order of dismissal or removal and to give the relief of reinstatement and a declaration that the contract of service subsists and the employee continues to be in service.
16. In order to appreciate the rival contentions it may be appropriate to consider the provisions of the [SECTION]63 Rules and the Act in this regard. Clauses (e) to (i) of [SECTION] of the [SECTION]63 Rules read as under:
(e) No persons on the staff of the institution shall be dismissed or removed or reduced in rank until it has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him provided that this clause shall not apply:
(i) Where a person is dismissed or removed or reduced in rank on the ground of conduct which led to his conviction on a criminal charge; or
(ii) Where it is not practicable to give that person an opportunity of showing cause and the Department's consent has been obtained before the action is taken.
(f) An order imposing punishment of the kind referred to in Clause (e) above shall contain the reasons thereof and a copy of it shall be given to the person concerned immediately and sent to the Deptt. for information within a month,
(g) An appeal shall lie to the authority mentioned in [SECTION] from every order of the Governing Body/Council or the Managing Committee imposing punishment referred to in Clause (e) above.
(h) The management shall implement the order passed by the appellate authority mentioned in (g) above within three months of the receipt of the copy thereof unless such implementation is stayed by the orders of any court or any higher authority.
(i) In case the management fails without sufficient reason to pay the amount, if any, specified in the order of the appellate authority, the Director may deduct it from the next grant-in-aid and, if necessary, from subsequent grant-in-aid bills also and pay the person concerned on behalf of the management. This would be deemed to be a payment to the management of the institution itself.
17. [SECTION] and [SECTION] of the Act, which are relevant for the purpose of considering the question, read as under:
78. Removal, dismissal or reduction in rank of employees.- Subject to any rules that may be made in this behalf, no employee of a recognised institution shall be removed, dismissed or reduced in rank unless he has been given by the management a reasonable opportunity of being heard against the action proposed to be taken:
Provided that no final order in this regard shall be passed unless prior approval of the Director of Education or an officer authroised by him in this behalf has been obtained:
Provided further that this section shall not apply,-
(i) to a person who is dismissed or removed on the ground of conduct which led to his conviction on a criminal charge, or
(ii) where it is not practicable or expedient to give that employee an opportunity of showing cause, the consent of Director of Education has been obtained in writing before the action is taken, or
(iii) Where the managing committee is of unanimous opinion that the services of an employee can not be continued without prejudice to the interest of the institution, the services of such employee are terminated after giving him six months notice or salary in lieu thereof and the consent of the Director of Education is obtained in writing.
[SECTION]. Appeal to the Tribunal.-(1) If a managing committee is aggrieved from the order of refusal made by the Director of Education under [SECTION], it may prefer an appeal to the Tribunal constituted under [SECTION] within ninety days of the date of receipt of such order.
(2) An employee aggrieved from an order of the managing committee made under [SECTION] may prefer an appeal to the said Tribunal within ninety days of the date of receipt of such order.
18. Bare reading of the above said provisions shows that when a person employed in the private educational aided institution is removed or dismissed from service he has a right to file an appeal before the appropriate authority/Tribunal and the management is bound to implement the order passed by the appellate authority. It is not disputed that such an appellate authority can set aside the order of dismissal and give a declaration that an employee had been wrongfully dismissed and continues to be in service and a direction can be also issued for his reinstatement. Before the commencement of the Act the educational institutions, receiving aid from the Government, were bound by the terms and conditions mentioned under the [SECTION]63 Rules and an argument that the employee wrongfully dismissed could not be given the relief of reinstatement is not open to the private educational institutions. This right of an employee has been recognised by the Act and is thus a statutory right. In Vaish Degree College case and [ENTITY] case (supra) there were no rules or statutory provision for an appeal to an appellate authority and it has not been disputed before us that while hearing an appeal the appellate authority has the power to set aside the order of dismissal and to order reinstatement. If this power can be exercised by the appellate authority under the [SECTION]63 Rules or the Act there is no reason why the High Court, while exercising jurisdiction under [SECTION] of the [ACT] cannot, in appropriate cases, quash the orders removing or dismissing the employee from service and issue directions for his reinstatement. We, therefore, hold that a person employed in private educational institution, on being dismissed or removed from service, is entitled to claim the relief or reinstatement. Question No. 2 is answered accordingly.
[SECTION]. Before parting with this Reference we may record that an argument has been addressed on behalf of the society and by some other learned Advocates that in view of the alternative remedy of appeal provided under the Act an employee cannot invoke the jurisdiction of this Court under [SECTION] of the [ACT].
20. We may simply state that it will be for the Bench hearing the writ petitions as and when filed by the aggrieved employees to decide whether in the circumstances of the case the writ petition can be entertained without the employee concerned having availed the alternative remedy of filing an appeal provided under the Act.
21. The Reference having been answered, the case would now go to the learned Single Judge for being dealt with in accordance with law.