Y.P. Nargotra, J.
1. The question arising for consideration in this case is, is Maharaja Hari Singh D.A.V. Public School a 'State' within the meaning of Article 12 of the constitution for being amenable to writ jurisdiction of this Court?
The constitution to an extent defined the word 'State' in Article 12 itself as including: -
'the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within The territory of India or under the control of the Government of India.'
2. The 'inclusive' definition is generally not exhaustive, is a statement of the obvious and as far as Article 12 is concerned, has been held so in Ujjan Bai v. State of U.P., (1963) 1 SCR 778. The words 'State' and 'authority' remain to be used in Article 12 in general context and the content and scope of which has been and is being supplied by the courts. In the series of the judgments of the Supreme Court the latest one is a seven judge constitution Bench decision rendered in Pardeep Kumar Biswas and Ors v. Indian Institute of Chemical Biology, JT 2002(4) 146. Their lordships, after taking notice of the important decisions on the subject including Sukhdev Singh and Ors v. Bhagat Ram Sardar Singh Raghuvanshi and Ors., 1975 (3)SCR 619, Ramana v. International Airport Authority of India, AIR 1979 SC 1620 and Ajay Hashia v. Khalid Mujib Soharavardhi, 1981 SCC 722 held as follows:-
'25.The court recognized that:..Obviously the society cannot be equated with the Government of India or the government of any state nor can it be said to be a local authority and therefore, it must come within the expression 'other authorities' if it is to fall within the definition of State.'But it said that:
The courts should be anxious to enlarge the scope and width of the Fundamental Rights by bringing within their sweep every authority which is an instrumentality or agency of the Government or through the corporate personality of which the government is acting, so as to subject the government in all its myriads activities, whether through natural person or through corporate entities, to the basic obligation of the Fundamental Rights.'
3. After noticing further the cases in which tests formulated in Ajay Hashia's case had been applied for finding out as to whether or not the particular institution was 'State' within the meaning of Article 12, their lordships observed:-
'39. Perhaps this rather over - enthusiastic application of broad limits set by Ajay Hashia may have persuaded this Court to curb the tendency in Chander Mohan Khanna v. National Council of Education Research and Training and Ors., 1991 (4) SCC 578. The court referred to the tests formulated in Sukhdev Singh, Ramana, Ajay Hashia, and Som Parkash Rekhi but striking a note of caution said that 'these are mere indicative indicia and are by no means conclusive or clinching in any case.' In that case, the question arose whether the National Council of Education Research (NCERT) was a 'state' as defined under Article 12 of the constitution. The NCERT is a society registered under the Societies Act. After considering the provisions of its memorandum of association as well as the rules of NCERT, this Court came to the conclusion that since NCERT was largely an autonomous body and the activities of the NCERT were not wholly related to governmental functions and that the government control was confined only to the proper utilization of the grant and since its funding was not entirely from government resources, the case did not satisfy the requirements of the State under Article 12 of the constitution. The court relied principally on the decision in Tek Raj Vasandi @ K.L. Basandhi v. Union of India (supra). However, as far as the decision in Sabhajit Tewary v. Union of India (supra) was concerned, it was noted that 'the decision has been distinguished and watered down in the subsequent decisions.'
39. Fresh of the judicial anvil is the decision in the Mysore Paper Mills Ltd. v. The Mysore Paper Mills officers Association, JT 2002 (1) SC 61, which fairly represents what we have seen as a continuity of thought commencing from the decision in Rajasthan Electricity Board in 1967 upto the present time. It held that a company substantially financed and financially controlled by the Government, managed by a board of directors nominated and removable at the instance of the government and carrying on important functions of public interest under the control of the government is 'an authority within the meaning of Article 12).
40.The picture that ultimately emerges is that the tests formulated in Ajay Hashia are not a rigid set of principles so that if a body falls within any one of them it must, ex-hypothesis, be considered to be a state within the meaning of Article 12.The question in each case would be -whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a state within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a state.'
4. Coming now to the facts of the present case, the petitioner was appointed as Principal Maharaja Hari Singh D.A.V. Public School Udhampur by the order dated 12.1.1987 by the D.A.V. College Managing Committee in the grade of 1100-1600. He was transferred to D.A.V. School R.S. Pura where he joined on 4.9.1989,where he discharged his duties till 31.3.1991. His services came to be terminated by Addl. Director DAV college Managing Committee by letter dated 18.3.1991. This letter/order reads:-
'Reference your letter Nos.417 dated 19.2.1991, 422A dated 22.2.1991, Capt. Dewan Singh's letter No. Confidential/KD/Per/91/1490 dated 3.10.90 addressed to you.
This is to inform you that extension in your services has been granted up to 31st of March, 1991 and your services automatically stand terminated w.e.f. 1.4.1991. You are requested to hand over the charge to the next seniormost teacher with effect from the afternoon of 31.3.1991 under intimation to this office.'
5. The petitioner filed the present writ petition under Article 226 of the constitution of India read with Section 103 of the constitution of Jammu and Kashmir claiming the following reliefs:-
'To quash the order No. 17624 dated 18th March 1991 by which the DAV college Managing Committee automatically terminated w.e.f. 1st April 1991 by issuance of writ of certiorari; and for issuance of further direction to the respondents to pay the arrears of pay and other amounts including difference in pay w.e.f. 1st April 1989 to 31st March 1991 including house rent and other allowances, 3 months salary encashment of half pay leave amount on account of increment due from 16th January 1991 to 31st March 1991,interest on GPF, encashment of leave salary or paid leave for 4 months on total period of service w.e.f. 16th January 1987 till 31st March 1991,encashment of casual leave i.e. pay for nine days and half pay leave w.e.f. 16th January 1987 to 31st March 1991 total Rs. 88300/- and for issuance of further direction to the respondents to pay the consequential benefits to the petitioner and to pay the arrears along with the interest @ 18% p.a. from the date the amount was due to the petitioner till realization of amount by issuance of writ of mandamus. Any other appropriate writ order or directions as the Hon'ble court may deem fit and proper in the facts and circumstances of the case may kindly be issued in favour of the petitioner against the respondents.'
6. For maintaining the writ of the petitioner in ground (f) of the petition has pleaded as follows:-
'That the writ is maintainable against the institution on the ground that the respondents are getting financial aid from Govt. of India. So it falls within purview of definition of Article 12 of the constitution of India, so the present writ petition is maintainable.'
7. The respondents 2&3, Organising Secretary, and Capt. Dewan Singh of DAV school have opposed the prayer of the petitioner 6n facts and law. It has also been pleaded that the petition is not maintainable on account of delay and misjoinder of the parties. In reply to ground (f) the respondents have submitted:-
'Denied. The Government of India neither finances the DAV college institution nor makes any appointment in the institution. Controlled and managed by the DAV college Managing committee. It is a case of misjoinder of unnecessary party. Appointment of the petitioner is admittedly made by the DAV College Managing committee who has not been arrayed as a party. The petition is liable to be dismissed for nonjoinder of the necessary party.'
8. Though the pleadings of the parties are deficient on the point of showing as to how the writ jurisdiction can or cannot be invoked against the order of termination etc. passed by the Managing Committee of DAV college, rules of pleadings enshrined in Order VI of C.P.C apply in principle to the writ petitions also and therefore the petitioner was required to plead all the material facts on which he could base his claim for maintaining the petition. But it has not been done, therefore, the question in issue has to be decided on the afore-mentioned facts alone. However learned counsel for the parties have argued at length for and against the maintainability of the writ petition.
9. Learned counsel for the petitioner, Mrs. Kour has argued that the school in which the petitioner was employed is getting financial aid from Union of India and therefore is amenable to writ jurisdiction of this Court being a State funded institution. She relied upon the judgment of the Supreme Court given in Ajay Hashia's case.
Per contra -- Learned counsel for the respondents submits that no financial aid is being received by the institution from the Central Government nor it has any control over the institution in regard to the appointments or management, therefore, DAV school cannot fall within the meaning of 'State' as defined in Article 12 of the constitution, as such the writ petition of the petitioner is not maintainable. He has further argued that services of the petitioner were only on the contractual basis and therefore could be terminated without any inquiry and therefore Article 311 is not applicable. He submits that even otherwise the petition is not maintainable on account of delay in approaching the court.
10. It may also be mentioned here before taking up the case for disposal that the original petitioner has already expired and in his place his wife has been substituted who is now prosecuting the case.
Be it so, from the facts of the case it appears that Union of India, respondent No. 1, has been arrayed as party-respondent by the petitioner simply because as per the allegations of the petitioner it has been providing financial aid to the institution. Union of India has yet not been put on notice. The respondents 2&3 (for the institution) have in their objections categorically denied the assertion of the petitioner in this behalf. Apart from the assertion and denial of the petitioner and the respondents Nos. 2&3 there is nothing on the record to show that the institution is receiving any financial assistance from the Central Government. Still even if, for the sake of argument, it is assumed that financial aid is being received by the institution (DAV school), this fact alone cannot bring the institution within the meaning of the 'State' for the reasons that Government/State does not exercise any control over the management of the institution. The management of the institution independently and individually makes the appointments of the school. There is not even a whisper in the allegations of the petitioner regarding the control of the government over the service conditions of the employees of the institution. There is not even such assertion of the petitioner that the institution is financially and administratively dominated by or under the control of the Government, not to talk of the control being pervasive. The acceptance of financial aid from the Government by a body or institution alone does not bring such body within the meaning of 'state' under Article 12 of the constitution. For bringing it within the meaning of the 'state' it must further be established that such body or institution is financially and administratively dominated by or under the pervasive control of the government. When the control is regulatory in nature it cannot be said to be pervasive and dominant. Some of the features of the pervasive and dominant control of the government would be like power to make appointments and removal of the staff and teachers lies with the government or in its functionary or is under its supervision, the criteria for employment and service conditions of the employees are prescribed by the Government, the substantial financial assistance comes from the Government, the grievance redressal power regarding the functioning of the institution vests in the government or its functionaries.
11. The institution in the present case does not, in any manner, satisfies the tests laid down by the Apex Court in Biswas's case (supra) and as such is not a 'state' within the meaning of Article 12 of the constitution. Therefore, no writ lies against it or its functionaries.
12. This apart, the petitioner's service was terminated in March 1991 and he has filed the petition in October 1999 i.e. after about eight years. The delay is inordinate and unexplained. The exercise of writ jurisdiction being discretionary needs to be denied in the case of the petitioner on account of gross delay in approaching the Court.
13. For the reasons aforesaid this writ petition is admitted and dismissed.