Shivali Dhillon vs Managing Director, Army Welfare ...
2015 Latest Caselaw 5144 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: July 20, 2015
+       W.P.(C) 5819/2015

        SHIVALI DHILLON
                                                        ..... Petitioner

                           Through:    Mr. V.S. Tomar, Adv.

                           versus

        MANAGING DIRECTOR, ARMY WELFARE
        EDUCATION SOCIETY (AWES) AND ORS.
                                        ..... Respondent

                           Through:    Mr. Dipak Kumar, Adv. with Mr.
                                       P.P. Nayak, Adv.

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J. (Oral)

1. The present petition has been filed by the petitioner inter-alia

seeking the following reliefs:-

A. Issue a writ, order or direction in the nature of mandamus, directing the Respondents to release DA arrears of the petitioner w.e.f 03 Oct 2006 as declared for the employees of the State of Madhya Pradesh from time to time which come to more than seven lakhs in this case; and

B. Issue direction to the Respondents to fix her pay as per Sixth Central Pay Commission recommendations/acceptance w.e.f 03 Oct. 2006 instead of 01 July 2009; and

C. Grant 12% interest on the arrears.

2. It is the case of the petitioner that she was appointed as a Lecturer

on probation at Army Centre for Education (ACE), Panchmarhi, Madhya

Pradesh on October 3, 2006. She was confirmed on the said post on

September 29, 2008. According to her, in terms of Rules & Regulations

of AWES/respondent No.1, as amended, it was stipulated that the regular

employees of the society would be paid HRA and DA as per the rates

applicable in the State in which the college is located. On September 9,

2009, a letter was issued by the Dy. Managing Director, AWES

clarifying that the ACE employees would be paid basic pay as per Sixth

Pay Commission w.e.f July 1, 2009 and DA and HRA would be

applicable at the rates applicable in the State where the college is

located. On not receiving the DA as per the rates applicable in the State

of Madhya Pradesh, she wrote a letter to the Managing Director,

AWES/respondent No.1, Delhi Cantt. on July 26, 2010 for payment of

the same. According to her, till May 21, 2012, the issue of DA arrears

remained pending, which compelled the petitioner to send a reminder.

On October 28, 2014, a further letter was sent to Managing Director,

AWES/respondent No.1 and Chairman, board of Governors to intervene

in the matter to resolve DA and pay fixation as per recommendations of

Sixth Central Pay Commission. According to her, on November 21,

2014, the respondents had turned down the application on the plea of

financial constraints.

3. When the matter was listed for hearing on July 14, 2015, an issue

of maintainability of the writ petition was raised inasmuch as,

apparently, the respondent No.1 not being a 'State', instrumentality of

State or other Authority within the meaning of Article 12 of the

Constitution of India would not be amenable to the jurisdiction of this

Court under Article 226 of the Constitution of India.

4. The matter was adjourned to July 15, 2015 when learned counsel

for the petitioner has placed before me, a document which appears to be

Rules and Regulations of the Army Welfare Education Society, the

respondent No.1 herein. According to him, on perusal of Rule 127 of

AWES Rules & Regulations, specifically the one relates to qualification

of Principal, HOD and Lecturer, it is noted that the same would be as per

the qualifications prescribed by different authorities under the

Government of India like UGC, AICTE, NCTE, BCI, DCI, MCI etc. He

would also submit that in terms of the said Rules, the DA and HRA to

regular confirmed employees will be admissible at the rates applicable to

the State where the college is located. It is his contention that the

respondents being involved in imparting education are discharging

public function. He also draws my attention to page 3 of the writ

petition, wherein an averment has been made that the administrative

control and management of the respondent No.1 society i.e Army

Welfare Education Society is in the hands of High Ranking Serving

Defence Officers namely Chief of Army Staff; President of the Society

and the Board of Governors is headed by Adjutant General of the rank of

Lieutenant General. The college is built on the Defence land and

therefore amenable to the writ jurisdiction of this Court. He would rely

upon the judgment of the Supreme Court reported as 2005(4) SCC 649

Zee Telefilms Ltd and An.r Vs. Union of India and Ors.

5. On the other hand, learned counsel for the respondent, who

appeared on advance notice, had relied upon one of the judgment of the

Division Bench of this Court in the case of Indian Medical Association

West Own Branch and Anr. vs. Union of India and Ors. LPA 756 of

2008 decided on February 25, 2009 to state that the present petition is

not amenable to the writ jurisdiction nor the respondents are performing

any public functions.

6. Having heard learned counsel for the parties, I may state here that

during the course of submission, a specific query was put to the learned

counsel for the petitioner, whether the petitioner has anywhere averred in

the petition that the provisions of an enactment of the State of Madhya

Pradesh which governs the service conditions of the school teachers

would be applicable to the ACE, Panchmarhi. The answer was in

negative. According to him, the service conditions are governed by the

Rules & Regulations framed and issued by AWES from time to time.

7. Insofar as the relief, prayed for, by the petitioner in the facts can

be granted by this Court in a proceeding under Article 226 of the

Constitution of India is no more a res-integra. Suffice to state that it is

not the case of the petitioner that the respondent is a 'State' within the

meaning of Article 12 of the Constitution of India. A feeble attempt was

made by learned counsel for the petitioner to contend that in view of the

fact that the school is being run on a Government land, it would be an

'other authority' apart from contending, the respondents are discharging

public functions. The said submissions are liable to be rejected in view

of the position of law, which I discuss hereunder.

8. The Supreme Court, in its recent opinion reported as 2015 (4)

SCC 670 K.K. Saxena Vs. Iternational Commission on Irrigation and

Drainage has while considering the law on the subject including the

judgment relied upon by learned counsel for the petitioner in the case of

Zee Telefilms Ltd and Anr. (supra) was of the view that a writ cannot

lie, if rights are purely of a private character without any public law

element. The Supreme Court had also referred to its judgment in the

case of Shri Anandi Mukta Sadguru Shree Mukta Jeevandasswami

Suvarna Jaya Vs. V.R.Rudani and Ors., 1989 (2) SCC 691, K.

Krishnamacharyulu and Ors vs. Sri Venketaswara Hindu College of

Engineering and Anr 1997 (3) SCC 571, Federal Bank Ltd. Vs. Sagar

Thomas and Ors. (2003) 10 SCC 733, Binny Limited and Anr. Vs. V.

Sadasivan and Ors. 2005 (6) SC 657.

9. The Supreme Court in para 32 after noting paras 14 to 19 in Shri

Anandi Mukta Sadguru (supra) has observed as under:-

"32. In para 14, the Court spelled out two exceptions to the writ of mandamus, viz. (i) if the rights are purely of a private character, no mandamus can issue; and (ii) if the management of the college is purely a private body "with no public duty", mandamus will not lie. The Court clarified that since the Trust in the said case was an aiding institution, because of this reason, it discharges public function, like Government institution, by way of imparting education to students, more particularly when rules and Regulations of the affiliating University are applicable to such an institution, being an aided institution. In such a situation, held the Court, the service conditions of academic staff were not purely of a private character as the staff had super-aided protection by University's decision creating a legal right and duty relationship

between the staff and the management. Further, the Court explained in para 19 that the term „authority‟ used in Article 226, in the context, would receive a liberal meaning unlike the term in Article 12, inasmuch as Article 12 was relevant only for the purpose of enforcement of fundamental rights Under Article 31, whereas Article 226 confers power on the High Courts to issue writs not only for enforcement of fundamental rights but also non-fundamental rights. What is relevant is the dicta of the Court that the term „authority‟ appearing in Article 226 of the Constitution would cover any other person or body performing public duty. The guiding factor, therefore, is the nature of duty imposed on such a body, namely, public duty to make it exigible to Article 226.

10. In para 38 of K.K. Saxena (supra) has held as under:-

What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is a 'State' within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. Reason is obvious. Private law is that part of a legal system which is a part of Common Law that involves relationships between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is 'State' under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law.

11. The Supreme Court has also noted its observation in Federal

Bank Ltd. (supra) wherein the Supreme Court has stated that "such a

private body who either runs substantially on State funding or

discharging public duty or positive obligation of public nature or a

person or a body under liability to discharge any function under any

Statute, to compel it to perform such a statutory function".

12. In the present case, following are the aims and objectives of the

AWES/respondent No.1:-

"(a) To create or augment Educational and Technical/Professional/Vocational training facilities to meet the needs of children of Army Personnel including widows & ex-servicemen (Army).

(b) To promote/impart higher education including technical and professional education to the wards of Army personnel including widows and ex-servicemen (Army). Professional education will include disciplines of Engineering. Medicine, Hospitality, Law, Education, Management, Fashion and Design and any other subject that will be considered relevant from time to time.

(c) To develop co-educational Army Schools and Army Public Schools for imparting quality education at affordable cost to the children of Army personnel including ex-servicemen.

(d) To prepare the students for All India Secondary School and All India Senior School Certificate (10 + 2 stage) examinations of the Central Board of Secondary Education with a common syllabi thus enabling the children of personnel who are transferred to be

admitted in mid-session.

(e) To promote development of academic excellence, discipline, personal character, high sense of values and national integration among the children of Army personnel.

(f) To promote sports and co-curricular activities.

(g) To gradually create adequate hostel facilities in selected Institutions/Stations on as required basis.

(h) To encourage all educational institutions established by the Society to attain financial self- sufficiency within a reasonable period so that welfare funds allotted for educational facilities can be utilised for other educational projects.

(j) Undertaking fund raising activities for augmenting the resources made available from welfare funds.

(k) To do such other things which are incidental to the promotion of the aforementioned aims and objectives."

13. It is also noted from the Rules & Regulations of the AWES, the

sources of income as stipulated in the Rules & Regulations are as under:-

"Sources of Income

(a) Fess collected from students.

(b) Interest on Term Deposits.

(c) Corpus and Grants from AWES.

(d) Grants received from higher HQ.

(e) Rebates on various contracts.

(f) Sale of various forms, diaries, magazines etc.

(g) Sale proceeds of U/S property items, used stationery items and old news papers.

(h) Donations.

(j) Renting of space/halls for educational activities e.g conduct of exam, seminars etc.

(k) Alumni and placement fee (Where applicable).

Type of Funds

(a) Corpus Fund Corpus money and grants received from higher HQ and interest accrued thereof.

(b) College Fund College Fund will comprise of the following:-

(i) Sale of various forms, diaries, prospectus, magazines etc.

(ii) Fees/money collected on account of the following:-

(aa) Registration fee.

(ab) Admission fee.

(ac) Games/sports fee.

(ad) Building fund.

(ae) Library/Institution Journal.

(af) Computer fee.

(ag) Collection of fines from students on account of late payment of fees, return of Library books, absence without leave etc. (ah) Exam fee."

14. Suffice to state that the sources of funding are not from the

Government but through its own sources. Further, insofar as the service

conditions are concerned, the same have been formulated by the society

in its Rules & Regulations as is clear from Rule 127, 129, 132 etc. In

other words, it is not the case of the petitioner that the Rules &

Regulations of the State of Madhya Pradesh are automatically applicable

on the institution. Insofar as the plea of the learned counsel for the

respondents that the high ranking officers working in Army are the

persons who are managing the affairs of the respondent No.1 society is

concerned, since the society itself has been formed to cater the

educational needs of the children of the Army personnel, it cannot be

said that the same are the functions of the Army, of which they are the

regular officers. A similar contention was raised in a different context,

whether AWHO would be a public authority within the meaning of RTI

Act, a Division Bench of this Court in Army Welfare Housing

Organisation Vs. Adjutant General's Branch and Ors 2015 (216) DLT

184 in paras 12 to16 has held as under:-

"12. We have thus explored the law generally, whether a person who by the office he / she occupies, becomes an ex-officio occupant of another office also, in the discharge of functions of such ex-officio office, is required to act as per the dictates of his office.

13. The Supreme Court in Bhuri Nath Vs. State of Jammu & Kashmir (1997) 2 SCC 745 was concerned with the question whether the Governor of State of Jammu & Kashmir, who under the provisions of the Shri Mata Vaishno Devi Shrine Act, 1988 was the ex- officio Chairman of the Board constituted under the said Act, was in the exercise of his powers as the Chairman of the said Board required to act on the aid and advice of the Council of Ministers as the Governor, being the Executive Head of the State of Jammu & Kashmir in accordance with the Constitution of Jammu & Kashmir, was required to act. It was held that the exercise of powers and functions under the Act is distinct and different from those exercised formally in the name of the Governor for which responsibility rests only with the Council of Ministers headed by the Chief

Minister. The judgment of Full Bench of Punjab & Haryana High Court in Hardwari Lal Vs. G.D. Tapase AIR 1982 P&H 439 to the effect that the Governor of a State, in his ex-officio capacity as the Chancellor of a State University, in the discharge of his functions does not perform any duty or exercise any power of the office of the Governor individually but acts in his discretion as Chancellor and does not act on the aid and advice of his Council of Ministers and further that the office as Chancellor held by the Governor is a statutory office and quite different from the office of the Governor, was cited with approval.

14. We see no reason as to why the aforesaid principles be not applied to the facts of this case. Though the persons occupying the position in the Board of Management of the appellant are serving Army officials who in performance of their duties as such officers are required to act as per the dictates of the Army Headquarters or the Ministry of Defence but the same cannot lead to the presumption that they, in their capacity / position as members of the Board of Management of the appellant will also act as per the dictates of the Army Headquarters or the Ministry of Defence. Thus it cannot be said that for this reason the Board of Management of the appellant is under the control of Army Headquarters or the Ministry of Defence. Such persons, as members of the Board of Management of the appellant are expected to exercise their functions in accordance with the Charter of the appellant, honestly and reasonably.

15. Notice may however be taken of Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology (2002) 5 SCC 111 where, in the context of the Prime Minister being the ex-officio President of the Council for Scientific and Industrial Research, a Society, it was held that the Prime Minister as ex-officio President may exercise powers not specifically conferred upon him by the Charter of the Society but necessarily implied in his office as the Prime Minister and the contention that the

Prime Minster as ex-officio President of the Society was to exercise powers not as the Prime Minister but as the President of the Society was rejected. However it was so held in the context of the dominant role played by the Government of India in the Governing Body of CSIR, by having the power to appoint the Secretary of the Society and the power to nominate and terminate the other members of the Governing Body of the Society. That is not the position here.

16. As far as the contention / reasoning, of the Army Headquarters or the Ministry of Defence thereby having a choice as to who will and who will not constitute the Board of Management of the appellant is concerned, the posts, the occupiers of which become ex- officio members of the Board of Management of the appellant, are senior posts in the Army, the appointment whereto is governed by the service conditions and it is not as if the Army Headquarters or the Ministry of Defence has an unguided discretion in the matter of appointments thereto to be able to whimsically appoint any officer thereto. Any breach of such rules, regulations or service conditions invites challenge thereto by the person considering himself entitled thereto. Moreover the objective for which the appellant has been set up is not such for it to be said that the Army Headquarters or the Ministry of Defence would be interested in packing the Board of Management of the appellant with its nominees by making appointments to the posts which are far more crucial, of persons not otherwise fit / eligible therefore, merely for the reason of having such person on the Board of Management of the appellant. The appellant was incorporated to provide a further motivating force to the soldiers in terms of social security to their families, shelter being a basic necessity of life, i.e. for constructing houses for Army personnel serving or retired on „No profit No loss basis‟. Neither any interest of Army Headquarters or the Ministry of Defence in having its preferred nominees on the Board

of Management of the appellant was disclosed, nor can we fathom any".

15. Similarly, insofar as the contention of learned counsel for the

petitioner that the school is being run on a land given by the Army is

concerned, a similar issue with regard to benefits and facilities being

granted by the Army was also been considered by the Division Bench in

Army Welfare Housing Organisation (supra), wherein, in para 17, the

Division Bench has held as under:-

"17. As far as the reliance placed by learned Single Judge on the Division Bench judgment of this Court in Brij Bhushan Gupta supra holding the appellant to be State within the meaning of Article 12 of the Constitution of India is concerned, we may notice that subsequent thereto another Division Bench of this Court in Asha Vij Vs. Chief of Army Staff MANU/DE/4012/2012 has, relying on Union of India Vs. Chotelal (1999) 1 SCC 554 holding that regimental funds are not „public fund‟ and that a person paid out of such regimental funds cannot be said to be holder of civil post within the Ministry of Defence, held the Army Welfare Educational Society to be not a State within the meaning of Article 12. Similarly another Division Bench of this Court in Air Vice Marshal J.S. Kumar Vs. Governing Council of Air Force (126) 2006 DLT 330 held the Air Force Sports Complex to be not a State, merely for the reason that the Government had provided some benefits and facilities thereto for providing recreation to Armed Forces officers. We have already noticed above Lt. Col. Ashok M. Chacko holding the Air Force Naval Housing Board to be not a State. Though a Division Bench of this Court in Sagarika Singh Vs. Union of India

MANU/DE/3337/2011 held Army Group Insurance Fund also a Society, to be State amenable to writ jurisdiction, but for the reason of every Army personnel compulsorily becoming a member thereof and subscription thereof being deducted from the pay and allowances of Army personnel and being subject to governmental control in the matter of revision of rates of subscription to the Fund and the Government having complete control to regulate and manage the Fund. That is not the position here. It is not compulsory for the Army personnel to avail of the allotment of house from the appellant or to contribute therefor. It is thus obvious that trend of judicial decisions has changed since Brij Bhushan Gupta. In fact Brij Bhushan Gupta was premised on the definition of State as laid down in Ajay Hasia Vs. Khalid Mujib (1981) 1 SCC 722 which itself has been reconsidered in Pradeep Kumar Biswas (supra) which has held that the tests formulated in Ajay Hasia are not rigid."

16. In any case, the objective for which the society was formed to

provide, augment Educational and Technical/Professional/Vocational

training facilities to meet the needs of children of Army Personnel

including widows and ex-service men, for which land has been given by

the army to create infrastructure, would not construe the function/ duty

of respondentNo.1 as having a public law element.

17. In view of my above discussion, I hold that the respondent No.1

society is not discharging any public function/public duty but its duties

are private in character. On that reasoning, it cannot be said to be an

'other authority'. The denial of DA and its arrears by the respondents

does not involve any public law element. The reliefs, as prayed for by

the petitioner, are not maintainable in proceedings under Article 226 of

the Constitution of India.

18. The petition is dismissed.

(V.KAMESWAR RAO) JUDGE JULY 20, 2015/ak