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
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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
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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
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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
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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
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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
Civil Appeal Nos.7355, 7356 & 7357 of 2008, dated 17.12.2008
(2005) 6 SCC 657
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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
(2015) 4 SCC 670
(1983) 4 SCC 562
(1989) 2 SCC 691
2010 SCC OnLine Utt 2462
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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)
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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
(2002) 5 SCC 111
(2023) 4 SCC 498
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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,
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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
