Telangana High Court
Smt. B. Rama Devi, vs The Chairman, Managing Committee, on 25 January, 2024
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
THE HON'BLE THE SHRI JUSTICE ABHINAND KUMAR SHAVLI
AND
THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI
WRIT APPEAL No.129 OF 2009
JUDGMENT:
(per the Hon'ble Shri Justice Anil Kumar Jukanti) This intra court appeal is filed questioning the order dated 27.01.2009 in W.P.No.63 of 2009.
2. Sri S. Syam Sunder Rao, learned counsel appears for the appellant, and Sri Gadi Praveen Kumar, learned Deputy Solicitor General of India appears for the respondent.
3. Brief facts:
The appellant was selected and appointed as Principal of Army School on 07.02.2003 and joined on 11.06.2003, confirmed with effect from 11.06.2005. Without granting an opportunity of being heard nor appointing an officer to conduct an enquiry, punishment of termination was effected.
4. A show cause notice dated 25.04.2008 was issued alleging misconduct such as, functional inefficiency, reputation of school going down, authoritative style of functioning, not AKS, J & JAK, J W.A.No.129 OF 2009 2 approachable, disgruntlement or discontent amongst students, teachers or parents, adhocism and lack of effective management. A detailed explanation was given on 15.05.2008. A termination order was issued on 03.01.2009 as per Rule 186
(g) of the Rules and Regulations of Army Welfare Education Society (hereinafter referred to 'AWES'). Contentions were advanced as to whether the society was a State within the meaning of Article 12 of the Constitution of India. The learned Single Judge held that the respondent school is not an instrumentality of the State under Article 12 of the Constitution of India and dismissed the writ petition. Against the order of writ petition, this intra court appeal is preferred.
5. It is submitted by learned counsel for the appellant that the appellant was selected and appointed as Principal of Army School on 07.02.2003 and joined on 11.06.2003, confirmed with effect from 11.06.2005. It is submitted that the strength of the school has gone up from 1,776 to 2,374 during her tenure, which was indicative of her good work and is contrary to what has been stated in the show cause notice. That she was AKS, J & JAK, J W.A.No.129 OF 2009 3 available from 7:15 A.M to 3:00 P.M. to resolve the issues of staff, parents and students and various issues. That the results were 100% pass in Class X due to her hard work, team work, dedication, personal involvement and guidance. Ignoring the said facts, the services of the appellant were terminated with effect from 27.12.2008 in a highly arbitrary manner without there being any enquiry and not considering the detailed explanation dated 15.05.2008 submitted in reply to show cause notice dated 25.04.2008.
6. It is submitted that the termination is capricious, arbitrary and is a breach of right to life, as envisaged under Article 21 of the Constitution. The learned Single Judge without appreciating the facts in proper perspective, erroneously held that Army School is not an instrumentality of State under Article 12 of the Constitution of India.
7. It is submitted by the learned counsel for the appellant that the Army School is owned and controlled by Indian Army and thus qualifies to be held as an instrumentality of State under Article 12 of the Constitution of India. That AWES runs AKS, J & JAK, J W.A.No.129 OF 2009 4 and manages Army Schools across the country and caters to the educational needs and demands of the army personnel children. This essential function of imparting education is implicit and co-existence with other conditions of the army personnel, that educational activity is to be considered and construed as an obligation of State. The fact that AWES secures lands from the Ministry of Defence whenever it intends to establish an army school and that infrastructural facilities are provided with the support of defence services, are indicative that AWES is an instrumentality of State. That the learned Single Judge has failed to appreciate that the army school run and managed by AWES is an instrumentality of State.
8. It is further contended that sainik schools established at various places in the country are run and managed by society identical to AWES and the said society has been held to be a State within the meaning of instrumentality of State and as such AWES be held as an instrumentality of State for the purpose of Article 12 of the Constitution of India. That providing schooling facilities is an obligation of State and the right to AKS, J & JAK, J W.A.No.129 OF 2009 5 education at primary and secondary level is a fundamental right guaranteed to the citizens of the country and an obligation is cast upon the State to provide for infrastructural facilities and establishing schools.
9. That the learned Single Judge failed to appreciate that the powers and jurisdiction under Article 226 of the Constitution of India are wide enough to issue a writ even against a private person or an organization, where fundamental rights are under peril. That in the instant case, the appellant has been unfairly and arbitrarily terminated violating the fundamental rights guaranteed under Articles 14, 16 and 21 and hence, an appropriate writ ought to have been issued.
10. Learned counsel for the appellant contends that judicial review is designed to prevent cases of abuse of power and that a writ of mandamus under Article 226 of the Constitution of India can be issued even against a private person/authority. That mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute and technicalities should not come in the way of granting relief under Article 226 of the AKS, J & JAK, J W.A.No.129 OF 2009 6 Constitution of India. The expression 'other authorities' in Article 12 of the Constitution of India has to be given broad and liberal interpretation. Under Article 226 of the Constitution of India, the High Court has power to issue directions for enforcement of rights conferred by part-III of the Constitution of India. That the Hon'ble Supreme Court in an identical matter wherein an Army Public School, B.C. Joshi Army Public School, run by AWES has held that the school is a Public Enterprise. That as held by the Hon'ble Apex Court that an Army Public School run by AWES is a Public Enterprise, the order of the learned Single Judge is not in accordance with the law laid down in D.S. Grewal vs. Vimmi Joshi and Others 1.
11. Reliance is placed on the following judgments for the propositions submitted above.
1. Binny Limited and Another Vs. V. Sadasivan and Others 2.
2. K.K. Saksena Vs. International Commission on Irrigation and Drainage and Others 3 1 Civil Appeal Nos.7355, 7356 & 7357 of 2008, dated 17.12.2008 2 (2005) 6 SCC 657 AKS, J & JAK, J W.A.No.129 OF 2009 7
3. B.S. Minhas Vs. Indian Statistical Institute and Others 4
4. Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others 5
5. Km. Vimi Joshi Vs. Chairman, School Managing Committee, Gen. B.C. Joshi Army Public School, Bin, Pithoragarh/Station Commander 6
6. D.S. Grewal Vs.Vimmi Joshi and Others (Civil Appeal Nos.7355, 7356 & 7357 of 2008), dated 17.12.2008.
12. Our attention has been invited to the show cause notice, reply to the show cause notice and also to the termination letter. It is contended that a detailed explanation was given to the show cause notice with regard to the points raised i.e.,
(i) functional efficiency and reputation of the school (ii) complaints and feed back (iii) disgruntlement or discontent among students, teachers or parents (iv) classes not been 3 (2015) 4 SCC 670 4 (1983) 4 SCC 562 5 (1989) 2 SCC 691 6 2010 SCC OnLine Utt 2462 AKS, J & JAK, J W.A.No.129 OF 2009 8 conducted, adhocism (v) lack of effective management and clear directions. In spite of detailed explanation offered, the same was not considered and the termination letter was issued, except stating that explanation submitted has been examined in detail by the competent authority and found untenable and that Clause 186 (g) (ii) of the Rules and Regulations for Army School/Army Public Schools is invoked to terminate the services of appellant on administrative grounds of inefficiency. That the said termination has been approved by the Chairman, Executive Committee of AWES, Integrated Headquarters of Ministry of Defence (Army).
13. It is submitted by learned counsel for the respondent that AWES is a registered society under the Societies Registration Act, 1860 with the Registrar of Societies, New Delhi and the society does not have the legal status of a juristic person. The school is governed by the rules and regulations of the society. The appellant being a staff of the society is governed by the rules and regulations and the services of the appellant were terminated on administrative grounds as per Article 186 (g) (ii) AKS, J & JAK, J W.A.No.129 OF 2009 9 followed by Articles 171 and 172 of Rules and Regulations. That the appointment was purely contractual in nature and it was directed to collect a cheque for three months salary and also to approach the Accounts Department for settlement of accounts/entitlements before termination. The question of invocation of Article 12 of the Constitution of India does not arise as the school is not an instrumentality of State.
14. Reliance is placed upon the following judgments of the Hon'ble Apex Court by learned counsel for the respondent:
1. Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology and Others 7.
2. St. Mary's Education Society and Another vs. Rajendra Prasad Bhargava and Others 8.
15. It is contended by the learned counsel that in Pradeep Kumar Biswas's case (7 supra), the Hon'ble Apex Court elaborately discussed the scope of Article 12 of the Constitution of India. That the question in each case would be whether such 7 (2002) 5 SCC 111 8 (2023) 4 SCC 498 AKS, J & JAK, J W.A.No.129 OF 2009 10 body is financially, functionally and administratively dominated by, or under the control of, the Government. Such control must be particular to that body and must be pervasive, else it would not be state within the meaning of Article 12 of the Constitution of India.
16. Relying upon St. Mary's Education Society (8 supra), it is contended by learned counsel for respondent that power of judicial review under Article 226 of the Constitution of India can be exercised if a body against which action is sought is not State or instrumentality of state provided there is public element in action complained.
17. It is further submitted that the employment being in the nature of a contract and not being in the realm of public law termination by an employer does not entitle the appellant to invoke the jurisdiction under Article 226 of the Constitution of India given the facts and circumstances of the case and the nature of society. Hence, the writ petition was rightly dismissed by the learned Single Judge and no interference is warranted in the order of the learned Single Judge.
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18. Heard learned counsels and perused the order of the learned Single Judge, the show cause notice, the reply filed, the termination order, Rules and Regulations and the material on record.
19. It is a fact that the appellant was under a contract of employment. The school is under the control and governance of the society and AWES is a registered society under the Societies Registration Act. The Rules and Regulations govern the functioning of the school. A writ of mandamus or the remedy under Article 226 of the Constitution of India is pre-eminently a public law remedy. It is trite to state that the Hon'ble Apex Court in an identical subject matter, wherein an Army Public School runs by AWES has held that the school is a Public Enterprise. In view of the law laid down by the Hon'ble Apex Court that an Army Public School run by AWES is held to be a Public Enterprise, it goes without saying that the writ petition filed by the appellant herein is amenable to writ jurisdiction.
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20. We have no hesitation in holding that the respondent school's action is not in accordance with law and the termination order is arbitrary and illegal. It is a fact borne by record that no detailed enquiry was conducted prior to the termination of the appellant and the termination order is bereft of any reasons. On this ground too, the order of termination is liable to be set aside. A perusal of the order of termination demonstrates that the grounds raised in the reply given to the show cause notice by the appellant have not been dealt with at all except for invoking Rule 186 (g) (ii) of the Rules and Regulations for Army Schools/Army Public Schools. The order of termination clearly indicates that the respondent has passed the termination order without any application of mind.
21. We are of the opinion that the impugned order of the learned Single Judge is not in accordance with the law laid down in D.S. Grewal's case (1 supra). Accordingly, the impugned proceedings No.3711/A/ GS(Edn.,), dated 03.01.2009, are set aside. The respondent is directed to reinstate the appellant as Principal, Army Public School, AKS, J & JAK, J W.A.No.129 OF 2009 13 Ramakrishnapuram, Secunderabad, and the respondent is directed to pay all such benefits which the appellant is entitled to, from the date of the passing of the impugned order i.e., 03.01.2009 till date. The said proceedings shall be issued within a period of three months from the date of receipt of a copy of this order.
22. For the foregoing reasons, the writ appeal deserves to be allowed and accordingly the same is allowed by setting aside the order of the learned Single Judge.
Miscellaneous applications pending, if any, shall stand closed.
________________________________ ABHINAND KUMAR SHAVLI, J ___________________________ ANIL KUMAR JUKANTI, J Date:25.01.2024 KH