JUDGMENT Hon’ble Anil Kumar, J.—Heard Sri Sanjay Saxena, learned counsel for petitioner and Sri Ashutosh Shukla, Advocate holding brief of Sri R.K. Choudhary, learned counsel for respondent and perused the record. 2. As the facts and circumstances involved in both the writ petitions are identical in nature, also the points to be concluded and decided is same, so with the consent of learned counsels, present today, both the writ petitions are heard jointly. 3. Further, Writ Petition No. 2160 (SS) of 2003, Smt. Neelam Agnihotri v. Director, Lucknow Public College, B-Block, Rajajipuram, Lucknow, has been filed by her with the following prayer : (i) to issue a writ, order or direction in the nature of certiorari quashing the impugned order termination order dated 1.4.2003 and provide all consequential benefits. (ii) To a writ, order or direction in the nature of Mandamus commanding the opposite parties to continue the petitioner in service as Assistant Teacher and pay her salary regularly in each and every month. To issue a writ, order or direction in the nature of mandamus commanding the opposite parties to decide the representation of the petitioner dated 3.4.2003. 4. Facts of the cases are that Smt. Neelam Aganihotri, who are working on the post of Assistant Teacher in Lucknow Public College, B-Block, Rajajipuram, Lucknow has approached this Court by filing Writ Petition No. 1707 (SS) of 2004 with the following main prayer : (i) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to allow the petitioner to join/resume her duties in any branch situated at Lucknow of Lucknow Public College and pass the necessary orders regarding the joining of the petitioner as assistant teacher and provide her all consequential benefits including the arrears of salary and further salary in each and every month continuously and regularly. (ii) Issue a writ, order or direction in the nature of mandamus commanding the opp. Party No. 1 to decide the representation dt. 26.5.03 contained in Annexure No. 3 to this writ petition. 5. (ii) Issue a writ, order or direction in the nature of mandamus commanding the opp. Party No. 1 to decide the representation dt. 26.5.03 contained in Annexure No. 3 to this writ petition. 5. Sri Ashutosh Shukla, learned counsel for respondent raised a preliminary objection that the orders which are challenged in the present cases are passed by Management of the institution known as Lucknow Public College, B-Block, Rajajipuram, Lucknow which is neither a State nor finstrumentality of State as defined under Article 12 of the Constitution of India as well as present writ petitions filed for redressal of her grievances are not maintainable under Article 226 of the Constitution of India. 6. In view of the abovesaid facts, the first and foremost question which is to be decided in the present case is whether the writ petition filed against a private management which does not fall within the ambit and scope the definitaion of State as given in Article 12 of the Constitution of India is maintainable under Article 226 of the Constitution of India. 7. Needless to mention that the Hon’ble Supreme Court in a leading case in Ajay Hasia and others v. Khalid Mujib Sehravardi and others, (1981) 1 SCC 722 , has held that not only such organization should be financed by State but also the State should have deep and pervasive control over day to day functioning of the body. The financial aid granted by Government to an establishment cannot be sole criteria to decide as to whether an establishment is a State within the ambit of Article 12 of the Constitution of India or not. The para 9 of the judgment reads as under: “1. One thing is clear that 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. 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. 3. It may also be a relevant factor........ whether the Corporation enjoys monopoly status which is State-conferred or State-protected. 4. Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality. 5. 3. It may also be a relevant factor........ whether the Corporation enjoys monopoly status which is State-conferred or State-protected. 4. Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality. 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. 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.” 8. In the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and others, (2002) 5 SCC 111 , the Constitution Bench of Hon’ble Apex Court affirmed the test formulated in Ajai Hasia’s case (supra) in the following words: “The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State withing 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.” 9. In the case of Federal Bank Ltd. v. Sagar Thomas and others, (2003) 10 SCC 733 , Hon’ble Supreme Court held that power under Article 226 of the Constitution of India should not be exercised against the private bodies. However, in the event of violation of certain statutory provisions in certain condition, mandamus may be issued for compliance. 10. The relevant portion of the judgment reads as under: “Such private companies would normally not be amenable to the writ jurisdiction under Article 226 of the constitution. But in certain circumstances a writ may be issued to such private bodies or persons as there may be statutes which need to be complied with by all concerned including the private companies. The relevant portion of the judgment reads as under: “Such private companies would normally not be amenable to the writ jurisdiction under Article 226 of the constitution. But in certain circumstances a writ may be issued to such private bodies or persons as there may be statutes which need to be complied with by all concerned including the private companies. For example, there are certain legislation like the Industrial Disputes Act, the Minimum Wages Act, the Factories Act or for maintaining proper environment, say, the Air (Prevention and Control of Pollution) Act 1981 or the Water (Prevention and Control of Pollution) Act, 1974 etc. or statutes of the like nature which fasten certain duties and responsibilities statutorily upon such private bodies which they are bound to comply with. If they violate such a statutory provision a writ would certainly be issued for compliance with those provisions. For instance, if a private employer dispenses with the service of its employee in violation of the provisions contained under the Industrial Disputes Act, in innumerable cases the High Court interfered and has issued the writ to the private bodies and the companies in that regard. But the difficulty in issuing a writ may arise where there may not be any non-compliance with or violation of any statutory provisions by the private body. In that event a writ may not be issued at all. Other remedies, as may be available, may have to be resorted to. 11. While examining the scope of Article 12 of the Constitution of India and interpreting the word “other authorities” enshrined in Article 12 the Hon’ble Apex Court in the case of Virendra Kumar Srivastava v. U.P. Rajya Karmachari Kalyan Nigam and another, (2005) 1 SCC 149 , followed the test laid down by majority opinion of Constitution Bench in the case of Pradeep Kumar Biswas (supra). Their Lordship had reiterated that while holding a body as “State” or instrumentality or agency of State, it must be seen that the control of the State is not only regulatory but it should be deep and pervasive. 12. The control of the State should be in such a manner that day to day functioning of the establishment concerned is watched, supervised and controlled by the various departmental authorities of the State Government. 13. 12. The control of the State should be in such a manner that day to day functioning of the establishment concerned is watched, supervised and controlled by the various departmental authorities of the State Government. 13. The test laid down in Ajay Hasia (supra) has been reiterated by Apex Court in the Constitution Bench judgment in Zee Telefilms Ltd. and another v. Union of India and others, 2005 (4) SCC 649 . While interpreting Article 12 of the Constitution of India, Hon’ble Supreme Court held in Zee Telefilms Ltd. (supra) that the intention of the constitutional framer while incorporating Article 12 was to treat such authority as instrumentality of State which has been created by law and has got certain power to make laws, frame rules and regulations and must be under deep and pervasive control of the State Government. The para 10 of the judgment reads as under: “10. From the above, it is seen that the intention of the constitution framers in incorporating this article was to treat such authority which has been created by law and which has got certain powers to make laws to make rules and regulations to be included in the term other authorities as found presently in Article 12.” 14. The dictum of Pradeep Kumar Biswas (supra) and Zee Telefilms (supra) has been reiterated by Hon’ble Supreme Court in the judgment in Zoroastrian Cooperative Housing Society Ltd. and another v. District Registrar Co-operative Society (urban) and others, 2005 (5) SCC 632 and it has been held by Hon’ble Apex Court that unless test indicated in Ajai Hasia’s case (supra) is complied with, a Co-operative Society may not be treated as ‘State’. The fundamental right guaranteed under Part III of the Constitution of India are normally enforced against the State action or action by other authorities who may come within the purview of Article 12 of Constitution of India. Power under Article 226 of Constitution of India may not be exercised against the private bodies. Accordingly, it has been held that the Cooperative Society constituted by the members of a voluntary association shall not be State being governed by own by-laws. 15. The relevant portion of the judgment of Zoroastrain Coop. Power under Article 226 of Constitution of India may not be exercised against the private bodies. Accordingly, it has been held that the Cooperative Society constituted by the members of a voluntary association shall not be State being governed by own by-laws. 15. The relevant portion of the judgment of Zoroastrain Coop. Housing Society Ltd. (supra) is reproduced as under : “The fundamental rights in Part III of the Constitution are normally enforced against State action or action by other authorities who may come within the purview of Article 12 of the Constitution. It is not possible to argue that a person has fundamental right to become a member of a voluntary association or of a Co-operative Society governed by its own by-laws. So long as this position holds, we are of the view that it is not possible, especially for a Registrar who is an authority under the Co-operative Societies Act, to direct a Co-operative Society to admit as a member, a person who does not qualify to be a member as per the by-laws registered under the Act. Nor can a Registrar direct in terms of Section 14 of the Act to amend the bye-laws since it could not be said that such an amendment, as directed in this case is necessary or desirable in the interest of the appellant society. What is relevant under Section 14 of the Act is the interests of the Society and the necessity in the context of that interest. It is not the interest of an individual member or an aspirant to a membership.” 16. The Hon’ble Supreme Court in the matter of G. Bassi Reddy v. International Crops Research Institute and another, (2003) 4 SCC 225 , while examining the similar issue, pleased to observe that a writ petition under Article 226 will lie only when the petitioner establishes her or her fundamental right or some other legal right has been infringed by the authority which falls within the meaning of Article 12 or against a ‘person’ if it is a statutory body or performs a public function or discharges a public or statutory duty. 17. 17. The Full Bench of this Hon’ble Court in the matter of Aley Ahmad Abidi v. District Inspector of Schools, Allahabad and others, AIR 1977 All 539 , considered the question “Whether Committee of Management of an Intermediate College is a statutory body and if so, whether a writ petition filed against it will be maintainable”. The Full Bench answered in the following words: “The Committee of Management of an Intermediate College is not a statutory body. Nevertheless, a writ Petition filed against it, is maintainable if such petition is for enforcement of performance of any legal obligations or duties imposed on such committee by a statute.” 18. Another Full Bench of this Court in M.K. Gandhi and others v. Director of Education (Secondary), U. P., Lucknow and others, 2005(3) ESC 2265 (All)(FB), considered the judgment of Aley Ahmad Abidi’s case (supra) and re-affirmed the view. 19. The Committee of Management of a private institution is normally governed by its own bye-laws although Government provides grant in aid for making payment of salaries to the teachers and staff of the school but it lacks deep pervasive control over the Committee of Management. The rights and duties of the members of the Committee of Management are governed by its bye-laws framed under the Societies Registration Act. The interference of the Government is only regulatory to the extent it pays salary to the teachers and staff. The administrative control over the school and its staff or teacher remains in the hands of the office bearers and members of the Committee of Management or its general bodies. Even the school building and its infrastructure are maintained by the Committee of Management and members of the Society in accordance to its bye-laws. 20. On the analysis of the aforesaid legal position, this Court comes to the conclusion that private school, may be getting grant in aid from the State Government, shall not be a ‘State’ within the meaning of Article 12 of the Constitution of India and, hence, writ petition shall not be maintainable. 21. For the foregoing reasons, the present writ petitions filed by the petitioners under article 226 of the Constitution of India against the private institution Lucknow Public College, B-Block, Rajajipuram, Lucknow are not maintainable under Article 226 of the Constitution of India, thus, both the writ petitions are dismissed. 22. 21. For the foregoing reasons, the present writ petitions filed by the petitioners under article 226 of the Constitution of India against the private institution Lucknow Public College, B-Block, Rajajipuram, Lucknow are not maintainable under Article 226 of the Constitution of India, thus, both the writ petitions are dismissed. 22. However, as prayed by learned counsel for petitioners, if she so advised, may approach appropriate forum for redressal of her grievances. ———————