Gujarat High Court
Bhagwanjibhai Kathanbhai ... vs State Of Gujarat on 24 June, 2022
Bench: Biren Vaishnav
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17270 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4803 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 4804 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 5592 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 15357 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BHAGWANJIBHAI KATHANBHAI BARADIYA
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR VIJAL DESAI, MR. D H KANTHARIYA, MR P S BHATIA,
ADVOCATES (7505) for the Petitioner(s) No. 1
MR SOAHAM JOSHI, AGP for the Respondent(s) No. 1
MR PATHIK M ACHARYA, MR PARTH DIVYESHWAR, MR
VAIBHAV VYAS, (3520) for the Respondent(s) No. 2, 3
================================================================
CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 24/06/2022
COMMON ORAL JUDGMENT
1. Rule returnable forthwith. Mr. Soaham Joshi, learned
Assistant Government Pleader waives service of notice of
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
Rule for the respondent - State as well as Mr. Pathik M.
Acharya, Mr. Vaibhav Vyas, Mr. Parth Divyeshwar, learned
advocates waive service of notice of Rule for the
respondent Nos.2 and 3.
2. With the consent of the learned advocates for the
respective parties, all these petitions are taken up for final
hearing today.
3. Heard Mr. Vijal Desai and Mr. D.H. Kanthariya, learned
advocates for the petitioners of Special Civil Application
Nos.4803, 4804 and 5592 of 2019.
4. In Special Civil Application No.4803 of 2019, the petitioner
who was appointed at a Computer Lab Assistant (Teacher)
on ad hoc basis on 3.9.2005 in the Army Public School,
Bhuj and, thereafter, taken up as a Computer Teacher has
approached this Court with a prayer that he be absorbed
on the permanent post of a Teacher looking to his long
service. Interim relief was also prayed for that pending the
petition, the respondents be restrained from terminating
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
the services of the petitioner.
5. Special Civil Application No.4804 of 2019 has been filed for
a similar relief by a Physical Education Teacher working
with the Army Public School, Bhuj.
6. Special Civil Application No.5592 of 2019 has been filed by
a Music Teacher also for a similar relief.
7. In the aforesaid three petitions, interim relief has been
granted restraining the School from terminating the
services of the petitioners.
8. Special Civil Application No.17270 of 2021 has been filed
by a Driver working with the Army Public School
challenging his termination of service from the School.
9. Special Civil Application No.15357 of 2020 has been filed
by the petitioner who was initially appointed as an
Assistant Teacher challenging the termination of his
services as a Head Teacher in the respondent-Air Force
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
School, similar to the respondents of the other petitions.
10. Since preliminary objections have been raised by the
respective learned advocates appearing for the Army
Public School, Bhuj and the Air Force School, Vadodara, the
Court has thought it fit to hear the petitions on their
maintainability.
11. Admittedly, the petitioners of the respective petitions are
appointed on various posts with the Army Public School,
Bhuj and the Air Force Society, Vadodara (Special Civil
Application No.15357 of 2020).
12. Learned advocates for the petitioners when confronted with
the issue whether the petitions are maintainable, under
Article 226 of the Constitution of India, on the basis of the
preliminary objections raised by the respondents, Mr. Vijal
Desai and Mr. Kanthariya, learned advocates for the
petitioners extensively relied on the decision dated
15.12.2015 passed in Civil Appeal No.14553 of 2015 of the
Hon'ble Supreme Court in the case of Janet Jeyapaul v.
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
SRM University reported in 2015(16) SCC 530.
Learned advocates for the petitioners would submit that
the Army Public School discharges public function as it
imparts education. Falling back on the decision in the case
of Janet Jeyapaul (Supra), learned advocates would
argue that imparting educations to the students at large is
a public function and, therefore, if any Body or Authority,
as the case may be is found to have been engaged in the
activity of imparting education to the students at large,
then, irrespective of the status of any such authority, it is
amenable to the writ jurisdiction of the High Court under
Article 226 of the Constitution of India. The learned
advocates for the petitioners would place reliance on para
22 of the decision, wherein, the Hon'ble Supreme Court
considering the nature of the function i.e. education held
SRM University to be an authority under Article 12 and,
therefore, amenable to the writ jurisdiction under Article
226 of the Constitution of India.
13. The learned advocates appearing for the Public School
through their affidavits-in-reply filed in the respective
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
petitions would invite the Court's attention to the basic
purpose for which the Schools were established. They were
registered under the Societies Registration Act and they
were governed under the Rules and Regulations laid down
by the Army Welfare Education Society. That they were not
set up for educating the students at large but for imparting
education to the students of the Army personnel. They
were set up and established with the aim of providing
quality education to the wards of serving and retired Army
personnel.
14. Reliance in support of this was placed on a decision of the
Hon'ble Supreme Court in the case of Rajbir Surajbhan
Singh v. Chairman, Institute of Banking Personnel
Selection, Mumbai reported in 2019(14) SCC 189.
The Court considering the various decisions on the issue of
maintainability of writ, in the submissions of learned
advocates for the respondents held that it was purely
private body imparting education. It cannot be said that it
was discharging a public function and amenable to the writ
jurisdiction of the High Court.
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
15. Reliance was also placed on a decision of this Court in the
case of Sandhya Dutt v. Patron & 2 reported in 2009
SCC, Online, Guj., 272, wherein, in a case of an
employee of the Army School run by the Army Welfare
Education Society, the Coordinate Bench of this Court held
that the School does not gain any grant and, therefore,
cannot be said to be an authority under Article 12.
16. Learned counsel for the petitioners have also placed
reliance on a decision of the High Court of Andhra Pradesh
in the case of Shaheeda Begum v. Principal, Army
School, Secunderabad and another reported in 2005
SCC Online AP and of the Delhi High Court in the case of
Shivali Dhillon v. Managing Director, Army Welfare
Education Society (Awes) and others reported in
2015 SCC Online Del., 10655.
17. Mr. P. S. Bhatia, learned counsel for the petitioner of SCA
No.15337 of 2020 with regard to the Air Force School
would draw the attention to the character of the society
namely; the Indian Air Force Educational and Cultural
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
Society. The object was to provide good education to the
personnel of Indian Air Force to establish Educational
Institutions and sound educational lines in conformity with
statutory provisions and education scheme of the
Government of India, State Government etc. that the
scheme management when read would indicate that it was
the society was meant by the Officers of the Indian Armed
Force. That the school had to obtain recognition / affiliation
from CBSE. These were traits which would land support to
the submission that Air Force Society as a State and a writ
could be maintainable. He would rely on a decision of the
Hon'ble Supreme Court in the case of Ramesh Ahluwalia
v. State of Punjab and others reported in 2012 (12)
SCC 331 and emphasize on the observations of the
Supreme Court in Para 14 of the judgment and submit that
merely because the institution was purely unaided could
not itself be a ground of holding that the writ petition is not
maintainable, particularly, when the Air Force Society was
carrying out public function of imparting education and was
manned by defence personnel.
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
18. In rejoinder thereto, Mr. Vijal Desai and Mr. Kanthariya
would rely on a decision dated 22.2.2022 passed in WPA
No.13266 of 2021 of the Calcutta High Court in the
case of Dr. Kausik Paul v. Seacom Skills University
and others and reiterate that education being a public
function and when carried out by the School, it takes the
color of a public function and, therefore, writ is
maintainable.
19. What is evident from the affidavits-in-reply on record and
the nature of the body is that the Army Public Schools were
established with the aim of providing quality education at
affordable cost to the wards of serving and retired Army
personnel. The brief history; the aims and objectives and
the organizational structure of the School is produced on
record. The material indicates that the Chief of Army Staff
announced a formation of Army Welfare Education
Organization under the Adjutant General's Branch to cater
for the educational needs of the children of the armed
personnel. It was found that in order to promote this
activity a statutory requirement was to form and register it
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
as a society so that it could run educational institutions.
Accordingly, an Army Welfare Education Society was
registered on 29.4.1983 under the Societies Registration
Act, 1860.
20. Considering the aims and objectives of the Society, it is
apparent that it is created to augment educational and
technical training and facilities to meet the needs of
children of Army personnel including widows and ex-
servicemen. Amongst other things, it is one of the
objectives to promote to impart higher education to the
wards of Army personnel including widows and ex-
servicemen. The Army Welfare Education Society is a
registered Body under the Societies Registration Act and
the body consists of the Board of Governors meant by the
top authorities of the Army. Grants to these institutions or
schools are provided from the welfare fund of the
educational general branch. The audit of the society is
carried out by a firm of Chartered Accountant. Managing
Committee, a Disciplinary Committee etc. are constituted
which are meant by the Army personnel which makes
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
appointment to such posts as required on a contractual
basis.
21. It is in light of these characters of the authority-respondent
herein that what needs to be seen is whether it qualifies to
be a Body or an Authority to be engaged in an activity
imparting education to the students at large which can be
a public foundation.
22. Two important highlights of the decision in the case of
Janet Jeyapaul (Supra) need to be carved from the facts
before the Hon'ble Supreme Court. SRM University was a
deemed university under the UGC. It was so notified by a
notification under Section 3 of the Act. The university was
imparting education to the students at large. Taking these
two considerations in view relying on the several decisions
of the Hon'ble Supreme Court, in para 22 of the judgment
of the Janet Jeyapaul (Supra), the Hon'ble Supreme
Court held the reason to hold the university amenable to a
writ was that it was involved in imparting education and
higher studies to the students at large. It was, therefore,
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
deemed to be discharging public function. Secondly, it was
a "deemed university" under the notification of the Central
Government of the UGC Act. It was, therefore, a public
function and, therefore, "an authority" within the meaning
of Article 12 of the Constitution of India.
23. Correlating the facts and the character of the authority in
the present case would indicate that the Welfare Education
Society was essentially formed to cater for the educational
needs of the children of the Army personnel. It was not for
the purposes of imparting education to the students at
large. The Schools namely; the Army Public Schools were
established with an aim of providing quality education at
affordable cost to wards of serving and retired Army
personnel. It was a society formed and registered in
accordance with the statutory requirement to run an
educational institution under the Societies Registration Act.
The aims and objectives were as reiterated for the children
of Army personnel including widows and ex-servicemen. It
is in this context that the judgment in the case of Janet
Jeyapaul (Supra) will clearly be distinguishable on facts
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
and not be applicable to the respondent authorities.
24. In the case of Rajbir Surajbhan Singh (Supra), the
Hon'ble Supreme Court was considering maintainability of
a writ against the institute of Banking Tribunal Selection
Board, Mumbai. Considering the decisions including one in
the case of Janet Jeyapaul (Supra) and the decision in
the case of Pradipkumar Vishwas reported in 2002(5)
SCC 111, the Hon'ble Supreme Court held as under:
"20. There is no manner of doubt that a Writ Petition
under Article 226 is maintainable even against a private
body provided it discharges public functions. While
deciding the question as to whether ICRISAT is
amenable to the writ jurisdiction under Article 226, this
Court held that it is not easy to define what a public
function or public duty is. It can reasonably be said that
such functions as are similar to or closely related to
those performable by the State in its sovereign capacity,
are public functions. The primary activity of ICRISAT is to
conduct research and training programmes in the
sphere of agriculture, purely on a voluntary basis which
according to this Court, is not a public duty10. A private
company carrying on banking business as a scheduled
commercial bank cannot be termed as an institution or a
company carrying on any statutory or public duty11.
21. In K.K. Saksena (supra), this Court observed
that the Respondent therein would not be
amenable to Writ jurisdiction under Article 226
of the Constitution of India, as the activities
were voluntarily undertaken by the
Respondents and there was no obligation to
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
discharge certain activities which were
statutory or of public character. Reference was
made to the Federal Bank case wherein it was
held that the Writ Petition was not maintainable
under Article 226 of the Constitution of India in
spite of the regulatory regime of the Banking
Regulation Act and the other statutes being in
operation.
22. The relevant questions, according to this
Court in K. K. Saksena (supra), to be answered
for the purpose of deciding whether a Writ
Petition is maintainable under Article 226 are:
a) Whether a private body which is a non-
governmental organization partakes the nature
of public duty or State action?
b) Whether there is any public element in the
discharge of its functions?
c) Whether there is any positive obligation of a
public nature in the discharge of its functions?
d) Whether the activities undertaken by the
body are voluntary, which many a non-
governmental organization perform?
23. The Respondent-Institute has been set up
for the purpose of conducting recruitment for
appointment to various posts in Public Sector
Banks and other financial institutions. Applying
the tests mentioned above, we are of the
opinion that the High Court is right in holding
that the Writ Petition is not maintainable
against the Respondent. Conducting
recruitment tests for appointment in banking
and other financial institutions, is not a public
duty. The Respondent is not a creature of a
statute and there are no statutory duties or
obligations imposed on the Respondent.
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
24. This Court in Federal Bank case held that a
Writ Petition under Article 226 of the
Constitution is not maintainable against a
scheduled bank on the ground that the business
of banking does not fall within the expression
"public duty". As the activity of the Respondent
of conducting the selection process for
appointment to the banks is voluntary in
nature, it cannot be said that there is any public
function discharged by the Respondent. There
is no positive obligation, either statutory or
otherwise on the Respondent to conduct the
recruitment tests. For the reasons above, we
are of the considered opinion that the
Respondent is not amenable to the Writ
Jurisdiction under Article 32 or Article 226 of the
Constitution of India."
25. Even in the context of Army Public School in the case of
K.K. Saksena v. International Commission on
Irrigation & Drainage reported in 2015(4) SCC 670,
consider the decision of Rajbir Surajbhan Singh
(Supra), the Hon'ble Supreme Court even while
considering the maintainability of a writ in the context of
public functions / public duty held that even if body is
performing public duty and is amenable to a writ
jurisdiction all its decisions are not subject to judicial
review. Only those decisions which have a public element
can be judicially reviewed. While considering all the
decisions on the issue, the Hon'ble Supreme Court in Para
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
41 to 46 held as under:
"41. In Binny Ltd. & Anr. v. V. Sadasivan & Ors.[9],
the Court clarified that though writ can be issued
against any private body or person, the scope of
mandamus is limited to enforcement of public duty. It
is the nature of duty performed by such person/body
which is the determinative factor as the Court is to
enforce the said duty and the identity of authority
against whom the right is sought is not relevant.
Such duty, the Court clarified, can either be statutory
or even otherwise, but, there has to be public law
element in the action of that body.
42. Reading of the categorization given in Federal
Bank Ltd. (supra), one can find that three types of
private bodies can still be amenable to writ
jurisdiction under Article 226 of the Constitution,
which are mentioned at serial numbers (vi) to (viii) in
para 18 of the judgment extracted above.
43. 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
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
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.
44. Within a couple of years of the framing of the
Constitution, this Court remarked in Election
Commission of India v. Saka Venkata Subba Rao[10]
that administrative law in India has been shaped in
the English mould. Power to issue writ or any order of
direction for 'any other purpose' has been held to be
included in Article 226 of the Constitution 'with a view
apparently to place all the High Courts in this country
in somewhat the same position as the Court of the
King's Bench in England. It is for this reason ordinary
'private law remedies' are not enforceable through
extraordinary writ jurisdiction, even though brought
against public authorities (See - Administrative Law;
8th Edition; H.W.R. Wade & C.F. Forsyth, page 656).
In a number of decisions, this Court ha held that
contractual and commercial obligations are
enforceable only by ordinary action and not by
judicial review.
45. On the other hand, even if a person or authority
does not come within the sweep of Article 12 of the
Constitution, but is performing public duty, writ
petition can lie and writ of mandamus or appropriate
writ can be issued. However, as noted in Federal
Bank Ltd. (supra), such a private body should either
run substantially on State funding or discharge public
duty/positive obligation of public nature or is under
liability to discharge any function under any statute,
to compel it to perform such a statutory function.
46. In the present case, since ICID is not funded by
the Government nor it is discharging any function
under any statute, the only question is as to whether
it is discharging public duty or positive obligation of
public nature."
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
26. In the case of Ramakrishna Mission v. Kago Kunya
reported in 2019(16) SCC 303 where K.K. Saksena
(Supra) was considered, the Hon'ble Supreme Court held
as under:
"20 In coming to the conclusion that the appellants
fell within the description of an authority under
Article 226, the High Court placed a considerable
degree of reliance on the judgment of a two judge
Bench of this Court in Andi Mukta (supra). Andi Mukta
(supra) was a case where a public trust was running a
college which was affiliated to Gujarat University, a
body governed by State legislation. The teachers of
the University and all its affiliated colleges were
governed, insofar as their pay scales were concerned,
by the recommendations of the University Grants
Commission. A dispute over pay scales raised by the
association representing the teachers of the
University had been the subject matter of an award
of the Chancellor, which was accepted by the
government as well as by the University. The
management of the college, in question, decided to
close it down without prior approval. A writ petition
was instituted before the High Court for the
enforcement of the right of the teachers to receive
their salaries and terminal benefits in accordance
with the governing provisions. In that context, this
Court dealt with the issue as to whether the
management of the college was amenable to the writ
jurisdiction. A number of circumstances weighed in
the ultimate decision of this Court, including the
following:
(i) The trust was managing an affiliated college;
(ii) The college was in receipt of government aid;
(iii) The aid of the government played a major role in
the control, management and work of the educational
institution;
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
(iv) Aided institutions, in a similar manner as
government institutions, discharge a public function
of imparting education to students;
(v) All aided institutions are governed by the rules
and regulations of the affiliating University;
(vi) Their activities are closely supervised by the
University; and
(vii) Employment in such institutions is hence, not
devoid of a public character and is governed by the
decisions taken by the University which are binding
on the management.
21 It was in the above circumstances that this Court
came to the conclusion that the service conditions of
the academic staff do not partake of a private
character, but are governed by a right-duty
relationship between the staff and the management.
A breach of the duty, it was held, would be amenable
to the remedy of a writ of mandamus. While the
Court recognized that "the fast expanding maze of
bodies affecting rights of people cannot be put into
watertight compartments", it laid down two
exceptions where the remedy of mandamus would
not be available:
"15. If the rights are purely of a private
character no mandamus can issue. If the
management of the college is purely a private
body with no public duty mandamus will not lie.
These are two exceptions to mandamus..."
22 Following the decision in Andi Mukta (supra), this
Court has had the occasion to re-visit the underlying
principles in successive decisions. This has led to the
evolution of principles to determine what constitutes
a 'public duty' and 'public function' and whether the
writ of mandamus would be available to an individual
who seeks to enforce her right.
23 In VST Industries Ltd v VST Industries Workers'
Union3, a two judge Bench of this Court held that a
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
mere violation of the conditions of service will not
provide a valid basis for the exercise of the writ
jurisdiction under Article 226, in a situation where the
activity does not have the features of a public duty.
This Court noted:
"7. In de Smith, Woolf and Jowell's Judicial
Review of Administrative Action, 5th Edn., it is
noticed that not all the activities of the private
bodies are subject to private law e.g. the
activities by private bodies may be governed by
the standards of public law when its decisions
are subject to duties conferred by statute or
when, by virtue of the function it is performing
or possibly its dominant position in the market,
it is under an implied duty to act in the public
interest... After detailed discussion, the learned
authors have summarised the position with the
following propositions:
(1) The test of whether a body is performing a
public function, and is hence amenable to
judicial review, may not depend upon the
source of its power or whether the body is
ostensibly a 'public' or a 'private' body.
(2) The principles of judicial review prima facie
govern the activities of bodies performing
public functions." (2001) 1 SCC 298 "
(3) ...In the following two situations judicial
review will not normally be appropriate even
though the body may be performing a public
function:
(a) Where some other branch of the law
more appropriately governs the dispute
between the parties. In such a case, that
branch of the law and its remedies should
and normally will be applied; and
(b) where there is a contract between the
litigants. In such a case the express or
implied terms of the agreement should
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
normally govern the matter. This reflects
the normal approach of English law,
namely, that the terms of a contract will
normally govern the transaction, or other
relationship between the parties, rather
than the general law. Thus, where a
special method of resolving disputes
(such as arbitration or resolution by
private or domestic tribunals) has been
agreed upon by the parties (expressly or
by necessary implication), that regime,
and not judicial review, will normally
govern the dispute." (Emphasis supplied)
24 In G Bassi Reddy v International Crops Research
Institute 4, a two judge Bench of this Court dealt with
whether the International Crop Research Institute for
the Semi-Arid Tropics ("ICRISAT") which is a non-
profit research and training centre, is amenable to
the writ jurisdiction under Article 226. The dispute
concerned the termination of employees of ICRISAT.
The Court held that only functions which are similar
or closely related to those that are performed by the
State in its sovereign capacity qualify as 'public
functions' or a 'public duty':
"28. A writ under Article 226 can lie against a
"person" if it is a statutory body or performs a
public function or discharges a public or
statutory duty...ICRISAT has not been set up by
a statute nor are its activities statutorily
controlled. Although, it is not easy to define
what a public function or public duty is, it can
reasonably be said that such functions are
similar to or closely related to those
performable by the State in its sovereign
capacity. The primary activity of ICRISAT is to
conduct research and training programmes in
the sphere of agriculture purely on a voluntary
basis. A service voluntarily undertaken cannot
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
be said to be a public duty. Besides ICRISAT has
a role which extends beyond the territorial
boundaries of India and its activities are
designed to benefit people from all over the
world.
While the Indian public may be the beneficiary
of the activities of the Institute, it certainly
cannot be said that ICRISAT owes a duty to the
Indian public to provide research and training
facilities." 4(2003) 4 SCC 225 Applying the
above test, this Court upheld the decision of the
High Court that the writ petition against ICRISAT
was not maintainable.
25 A similar view was taken in Ramesh Ahluwalia v
State of Punjab5, where a two judge Bench of this
Court held that a private body can be held to be
amenable to the jurisdiction of the High Court under
Article 226 when it performs public functions which
are normally expected to be performed by the State
or its authorities.
26 In Federal Bank Ltd. v Sagar Thomas,6 this Court
analysed the earlier judgements of this Court and
provided a classification of entities against whom a
writ petition may be maintainable:
"18. From the decisions referred to above, the
position that emerges is that a writ petition
under Article 226 of the Constitution of India
may be maintainable against (i) the State
(Government); (ii) an authority; (iii) a statutory
body; (iv) an instrumentality or agency of the
State; (v) a company which is financed and
owned by the State; (vi) a private body run
substantially on State funding; (vii) a private
body discharging public duty or positive
obligation of public nature; and (viii) a person or
a body under liability to discharge any function
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under any statute, to compel it to perform such
a statutory function." (emphasis supplied).
27 In Binny Ltd. v V Sadasivan7, a two judge Bench of
this Court noted the distinction between public and
private functions. It held thus:
"11...It is difficult to draw a line between public
functions and private functions when they are
being discharged by a purely private authority.
A body is performing a "public function" when it
seeks to achieve some collective benefit for the
public or a section of the public and is accepted
by the public or that section of the public as
having authority to do so. Bodies therefore
exercise public functions when they intervene
or participate in social or economic affairs in
the public interest." 5 (2012) 12 SCC 331 6
(2013) 10 SCC 733 7(2005) 6 SCC 657
28. The Bench elucidated on the scope of mandamus:
"29. However, the scope of mandamus is
limited to enforcement of public duty. The
scope of mandamus is determined by the
nature of the duty to be enforced, rather than
the identity of the authority against whom it is
sought. If the private body is discharging a
public function and the denial of any right is in
connection with the public duty imposed on
such body, the public law remedy can be
enforced. The duty cast on the public body may
be either statutory or otherwise and the source
of such power is immaterial, but, nevertheless,
there must be the public law element in such
action...There cannot be any general definition
of public authority or public action. The facts of
each case decide the point." (emphasis
supplied).
29 More recently in K K Saksena v International
Commission on Irrigation and Drainage8, another two
judge Bench of this Court held that a writ would not
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lie to enforce purely private law rights. Consequently,
even if a body is performing a public duty and is
amenable to the exercise of writ jurisdiction, all its
decisions would not be subject to judicial review. The
Court held thus:
"43. What follows from a minute and careful
reading of the aforesaid judgments of this Court
is that if a person or authority is "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 a 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. The reason is obvious. A
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." 8 (2015) 4 SCC
30. Thus, even if the body discharges a public
function in a wider sense, there is no public law
element involved in the enforcement of a private
contract of service.
31. Having analysed the circumstances which were
relied upon by the State of Arunachal Pradesh, we
are of the view that in running the hospital,
Ramakrishna Mission does not discharge a public
function. Undoubtedly, the hospital is in receipt of
some element of grant. The grants which are
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
received by the hospital cover only a part of the
expenditure. The terms of the grant do not indicate
any form of governmental control in the management
or day to day functioning of the hospital. The nature
of the work which is rendered by Ramakrishna
Mission, in general, including in relation to its
activities concerning the hospital in question is purely
voluntary.
32 Before an organization can be held to discharge a
public function, the function must be of a character
that is closely related to functions which are
performed by the State in its sovereign capacity.
There is nothing on record to indicate that the
hospital performs functions which are akin to those
solely performed by State authorities. Medical
services are provided by private as well as State
entities. The character of the organisation as a public
authority is dependent on the circumstances of the
case. In setting up the hospital, the Mission cannot be
construed as having assumed a public function. The
hospital has no monopoly status conferred or
mandated by law. That it was the first in the State to
provide service of a particular dispensation does not
make it an 'authority' within the meaning of Article
226. State governments provide concessional terms
to a variety of organisations in order to attract them
to set up establishments within the territorial
jurisdiction of the State. The State may encourage
them as an adjunct of its social policy or the
imperatives of economic development. The mere fact
that land had been provided on a concessional basis
to the hospital would not by itself result in the
conclusion that the hospital performs a public
function. In the present case, the absence of state
control in the management of the hospital has a
significant bearing on our coming to the conclusion
that the hospital does not come within the ambit of a
public authority.
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
33 It has been submitted before us that the hospital
is subject to regulation by the Clinical Establishments
(Registration and Regulation) Act 2010. Does the
regulation of hospitals and nursing homes by law
render the hospital a statutory body? Private
individuals and organizations are subject to diverse
obligations under the law. The law is a ubiquitous
phenomenon. From the registration of birth to the
reporting of death, law imposes obligations on
diverse aspects of individual lives. From incorporation
to dissolution, business has to act in compliance with
law. But that does not make every entity or activity
an authority under Article 226. Regulation by a
statute does not constitute the hospital as a body
which is constituted under the statute. Individuals
and organisations are subject to statutory
requirements in a whole host of activities today. That
by itself cannot be conclusive of whether such an
individual or organisation discharges a public
function. In Federal Bank (supra), while deciding
whether a private bank that is regulated by the
Banking Regulation Act, 1949 discharges any public
function, the court held thus:
"33. ...in our view, a private company carrying
on banking business as a scheduled bank,
cannot be termed as an institution or a
company carrying on any statutory or public
duty. A private body or a person may be
amenable to writ jurisdiction only where it may
become necessary to compel such body or
association to enforce any statutory obligations
or such obligations of public nature casting
positive obligation upon it. We don't find such
conditions are fulfilled in respect of a private
company carrying on a commercial activity of
banking. Merely regulatory provisions to ensure
such activity carried on by private bodies work
within a discipline, do not confer any such
status upon the company nor put any such
obligation upon it which may be enforced
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
through issue of a writ under Article 226 of the
Constitution. Present is a case of disciplinary
action being taken against its employee by the
appellant Bank. The respondent's service with
the Bank stands terminated. The action of the
Bank was challenged by the respondent by
filing a writ petition under Article 226 of the
Constitution of India. The respondent is not
trying to enforce any statutory duty on the part
of the Bank..." (emphasis supplied)
34. Thus, contracts of a purely private nature would
not be subject to writ jurisdiction merely by reason of
the fact that they are structured by statutory
provisions. The only exception to this principle arises
in a situation where the contract of service is
governed or regulated by a statutory provision.
Hence, for instance, in K K Saksena (supra) this Court
held that when an employee is a workman governed
by the Industrial Disputes Act, 1947, it constitutes an
exception to the general principle that a contract of
personal service is not capable of being specifically
enforced or performed.
35 It is of relevance to note that the Act was enacted
to provide for the regulation and registration of
clinical establishments with a view to prescribe
minimum standards of facilities and services. The
Act, inter alia, stipulates conditions to be satisfied by
clinical establishments for registration. However, the
Act does not govern contracts of service entered into
by the Hospital with respect to its employees. These
fall within the ambit of purely private contracts,
against which writ jurisdiction cannot lie. The sanctity
of this distinction must be preserved.
36 For the above reasons, we are of the view that the
Division Bench of the High Court was not justified in
coming to the conclusion that the appellants are
amenable to the writ jurisdiction under Article 226 of
the Constitution as an authority within the meaning
of the Article.
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
37 For the reasons that we have adduced above, we
hold that neither the Ramakrishna Mission, nor the
hospital would constitute an authority within the
meaning of Article 226 of the Constitution.
38 Before concluding, it would be necessary to also
advert to the fact that while the learned Single Judge
had come to the conclusion that the appellants are
'State' within the meaning of Article 12, the Division
Bench has not accepted that finding. The Division
Bench ruled, as we have noticed earlier, that the
appellants do not fall within the description of 'State'
under Article 12. This finding has not been
challenged before this Court by the State of
Arunachal Pradesh.
39 Even otherwise, we are clearly of the view that the
tests which have been propounded in the line of
authority of this Court in Ajay Hasia v Khalid Mujib
Sehravardi9, Pradeep Kumar Biswas v Indian Institute
of Chemical Biology 10 and Jatya Pal Singh v Union of
India11 support the conclusion of the High Court that
the appellants are not 'State' within the meaning of
Article 12 of the Constitution of India.
40. For the above reasons, we allow the appeal and
set aside the judgment and order of the High Court
dated 6 April 2018 in Writ Appeal No 25 (AP/2017). In
consequence, the writ petition filed before the High
Court namely W.P. (Civil) No 520 (AP/2015) shall
stand dismissed. There shall be no order as to costs.
40 Pending application(s), if any, shall stand disposed
of."
27. When the Army Public School was a respondent before this
Court in the case of Sandhya Dutt (Supra), the
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
coordinate Bench of this Court held that since the School
does not take any grant from any authority it is not
amenable to writ under Article 226 of the Constitution of
India.
28. The view was reiterated by the Andhra Pradesh High Court
in the case of Shaheeda Begum (Supra) held as under:
"12. The Special leave petition preferred, against the
aforesaid judgment of the Division Bench of the Jammu
and Kashmir High Court, was dismissed by the Apex
Court (supra).
13. In Kamlesh Chandra Tewari's case (supra), the
Allahabad High Court was called upon to decide as to
whether the Army School at Madhura Cantonment was an
instrumentality of the State within Article 12 of the
Constitution of India. The Allahabad High Court held that
the Welfare Association could not be regarded as doing
any public duty or having any nexus with the Government
nor did it enjoy a monopoly status to carry on education
to the Wards of Army Officers within the Cantonment
area and was therefore not a State or an instrumentality
of the State under Article 12 of the Constitution of India.
14. In Sujaya Roy's case (supra), the Division Bench of
the Guwahati High Court was called upon to decide as to
whether the Army School at Narengi at Guwahati,
established by the Army Welfare Educational Society,
registered under the Societies Registration Act, fell within
the meaning of a State under Article 12 of the
Constitution of India. The Division Bench of the Guwahati
High Court held :
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
"...Thus, the law is now settled by the Apex Court
and a Division Bench of this Court that in the
absence of statutory requirement the contract of
employment cannot ordinarily be enforced against
an employer and the remedy is to sue for damages.
The exceptions to the aforesaid rule are the case of
public servant dismissed from service in
contravention of Article 311 of the Constitution,
reinstatement of a dismissed worker under the
Industrial Law, a statutory body acting in breach of
statutory obligations. In the present case, the
petitioners have not made out a case to continue in
service. No case is also has been made out that
they hold civil posts under the State or the Union
and that they have been terminated from service in
contravention to Article 311 of the Constitution.
These cases are also not the cases of workers
under Industrial Law. The AWES or Army School
Narengi are also not statutory bodies created by
any statute. The cases of the petitioners, therefore,
do not fall within the exceptions laid down in the
judgment of the Supreme Court in Nandganj Sihori
Co Ltd, Raebareli v. Badri Nath Dixit. If, therefore,
the employer does not want the services of the
petitioners any longer the Court cannot grant
specific enforcement of the contracts of the service
between the petitioners and AWES or the Army
School, Narengi by quashing the impugned notices
terminating their services...."
24. The distinction between "Public Law" and "Private
Law" was explained in Sri Konaseema Co-operative
Central Bank Limited v. N. Seetharama Raju, AIR 1990 AP
171, wherein the Full Bench of this Court held:
"... Distinction between 'public law' and 'private law'.
Difficult as this distinction is and incapable of precise
demarcation, it is yet necessary to keep the broad
distinction in mind. Lord Denning in his book "The Closing
Chapter" has this to say on the subject:
"The first thing to notice is that public law is confined to
'public authorities'. What are 'public authorities'? There is
only one avenue of Approach. It is by asking, in the words
of Section 31(2)(b) of the Supreme Court Act 1981 : What
is the 'nature of the persons and bodies against whom
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
relief may be granted by such orders', that is, by
mandamus, prohibition or certiorari?
These are divided into two main categories:
First, the persons or bodies who have legal authority to
determine questions affecting the common law or
statutory rights or obligations of other persons as
individuals. That is the formula stated by Lord Justice
Atkin in R. v. Electricity Commissioners, ex parte London
Electricity Joint Committee Co., (1920) Ltd, (1924) 1 KB
171/205 as broadened by Lord Diplock in O'Reilly v.
Machman, (1982) 3, WLR 1096/1104).
Second, the persons or bodies who are entrusted by
Parliament with functions, powers and duties which
involve the making of decisions of a public nature.... To
which I would add the words of Lord Goddard, C.J. in R. v.
National Joint Council for Dental Technicians, ex parte
Neate, (1953) 1 QB 704/707):
"The bodies to which in modern times the remedies of
these prerogative writs have been applied have all been
statutory bodies on whom Parliament has conferred
statutory powers and duties which, when exercised, may
lead to the detriment of subjects who may have to submit
to their jurisdiction".
But those categories are not exhaustive. The Courts can
extend them to any other person or body of a public
nature exercising public duties which it is desirable to
control by the remedy of judicial review.
There are many cases which give guidance, but I will just
give some illustrations.
Every body which is created by statute and whose powers
and duties are defined by statute is a 'public authority'.
So Government departments, local authorities, police
authorities, and statutory undertakings and corporations,
are all 'public authorities'. So are members of a statutory
Tribunal or inquiry, and the board of visitors of a prison.
The Criminal Injuries Compensation Board is a public
authority. So also, I suggest, is a university incorporated
by Royal character; and the managers of a State School.
So is the Boundary Commission : and the Committee of
Lloyd's.
But a limited liability company incorporated under the
Companies Act is not a 'public authority'; (see Tozer v.
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
National Greyhound Racing Club Ltd. (1983) Times, 16
May). Nor is an unincorporated association like the Jockey
Club....
... Applying the above test, the appellant-Society herein
cannot be called a public body. It has no duty towards
public. Its duty is towards its members only. It has no
power to take any action, or pass any order affecting the
rights of the members of public. The binding nature of its
orders arid actions is confined to its members, and to its
employees. It is neither a statutory body nor are its
relations with its employees governed by a statute. Its
functions are also not akin to governmental functions.
Nor is it a case where it can be said that the reality
behind the Society is the executive power of the State.
Moreover, even if for some distant reason it can be
characterized as a public body, even so the contract of
service between it and the writ petitioner cannot be
treated as belonging to 'public law' field. It is a pure and
simple contract of service, and there is no statutory
provision regulating, circumscribing, and governing the
said relationship ...."
29. Even Delhi High Court too in Shivali Dhillon (Supra) held
as under:
"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-
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
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
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
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
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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
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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).
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
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
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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
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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
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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
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
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 respondent No.1 as having
a public law element."
C/SCA/17270/2021 JUDGMENT DATED: 24/06/2022
30. For the foregoing reasons, therefore all these petitions are
held to be not maintainable. Order accordingly. The
petitions are dismissed with no order as to costs. Rule is
discharged.
31. As far as Special Civil Application Nos.4803, 4804, 5592 of
2019 are concerned, interim relief has been operating in
these petitions by virtue of which the petitioners are
continuing in service. It is clarified that the services of
these petitioners shall not be terminated except after
following the due procedure envisaged under the law. It is
clarified that in the event, the petitioners intend to avail of
an appropriate remedy under the law, the pendency of
these petitions in this Court shall be taken as pending
proceedings for the purposes of limitation.
[ BIREN VAISHNAV, J. ]
VATSAL S. KOTECHA
