# Ms. Tanu Jetly v. The Chairman/Secretary, Army Welfare Education Society, Ministry of Defence, New Delhi & Ors

- **Citation:** (2024) 8 ILRA 331
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-02
- **Case number:** Writ-A No. 8981 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ms-tanu-jetly-v-the-chairman-secretary-army-welfare-education-society-ministry-52324
- **Pages:** 6

## Headnote

(A) Service Law - Maintainability of a Writ
Petition under Article 226 against Army
Welfare Society - not maintainable against
a private unaided educational institution,
such as Army Welfare Education Society,
which manages Army Public Schools -
relationship between employees and a
private educational institution arises out
of a private contract, which does not
involve a public law element - Army
Welfare Education Society is a private
unaided society, not a "State" under
Article 12 of the Constitution. (Para -
15,17,18 )

Petitioner working as a P.R.T. teacher in Army
Public School - contractual basis - seeking a
direction for continuance of her service - and for
regularization of her services after termination
thereof. (Para - 1 to 3)

HELD: - Writ petition not maintainable due to
lack of public law element and private contract
nature. Writ Petition filed by petitioner seeking
continuance
and
regularization
of
her
contractual service in Army Public School after
termination thereof due to efflux of contract
period not maintainable. (Para - 17 to 19)

Petition dismissed. (E-7)

List of Cases cited:

## Text

8 All. Ms. Tanu Jetly Vs. The Chairman/Secretary, Army Welfare Education Society, Ministry of
 Defence, New Delhi & Ors.
331

20. There will, however, be no order
as to cost.
----------
(2024) 8 ILRA 331
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-A No. 8981 of 2024

Ms. Tanu Jetly ...Petitioner
Versus
The Chairman/Secretary, Army Welfare
Education Society, Ministry of Defence,
New Delhi & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amit Malik, Sri Santosh Kumar Giri

Counsel for the Respondents:
C.S.C.

(A) Service Law - Maintainability of a Writ
Petition under Article 226 against Army
Welfare Society - not maintainable against
a private unaided educational institution,
such as Army Welfare Education Society,
which manages Army Public Schools -
relationship between employees and a
private educational institution arises out
of a private contract, which does not
involve a public law element - Army
Welfare Education Society is a private
unaided society, not a "State" under
Article 12 of the Constitution. (Para -
15,17,18 )

Petitioner working as a P.R.T. teacher in Army
Public School - contractual basis - seeking a
direction for continuance of her service - and for
regularization of her services after termination
thereof. (Para - 1 to 3)

HELD: - Writ petition not maintainable due to
lack of public law element and private contract
nature. Writ Petition filed by petitioner seeking
continuance
and
regularization
of
her
contractual service in Army Public School after
termination thereof due to efflux of contract
period not maintainable. (Para - 17 to 19)

Petition dismissed. (E-7)

List of Cases cited:

1. Army Welfare Education Society Vs Sunil
Kumar Sharma, 2024 SCC OnLine SC 1683

2. Urmila Chauhan Vs The Chairman Army
Public School & ors., S.L.P. (Civil) No. 7994 of
2022

3. St. Mary's Education Society Vs Rajendra
Prasad Bhargava, (2023) 4 SCC 498

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri. Santosh Kumar Giri
Advocate, the learned Counsel for the
petitioner, who has submitted that the
petitioner is working as a P.R.T. teacher in
Army Public School, Bareilly Cantt.,
Bareilly and she is seeking a direction for
continuance her service as such and for
regularization her services.

2. It has been pleaded in the writ
Petition that the petitioner was appointed
on the post of P.R.T. teacher in Army
Public School, Bareilly Cantt., Bareilly on
contractual basis on 19.08.2010/18.07.2010
initially for a period of two years. On
16.07.2012, the petitioner was again
appointed for a period of three years from
26.07.2012 to 25.07.2015. On 11.08.2015,
she was appointed afresh for a period of
three years. Another contract of service was
executed on 14.08.2018 for three years and
thereafter another contract of service was
executed on 20.07.2018 for the period up to
19.07.2021.

3. Lastly, the petitioner was issued an
appointment
letter
dated
27.09.2021
332 INDIAN LAW REPORTS ALLAHABAD SERIES
appointing her for a fixed tenure from
04.10.2021 to 31.03.2024. On 08.01.2024,
the petitioner was sent an intimated that her
service contract will expire on 31.03.2024
and she can appear for fresh selection. The
petitioner had participated in the fresh
selection process and a letter dated
18.03.2024 issued by the Principal of the
School calling the petitioner for interview,
has been annexed with the Writ Petition. It
appears
that
the
petitioner
remained
unsuccessful in selection and thereafter she
has
filed
the
Writ
Petition
seeking
continuance and regularization of her
service after termination thereof.

4. It has been pleaded that Army
Public School is governed by Army
Welfare
Educational
Society,
New
Delhi, Indian Army, Government of
India,
Ministry
of
Defence.
The
aforesaid pleading is incorrect as in
Army Welfare Education Society v.
Sunil Kumar Sharma, 2024 SCC
OnLine SC 1683 the Hon'ble Supreme
Court has held that Army Welfare
Educational Society is a purely unaided
private
society
established
for
the
purpose of imparting education to the
children of the army personnel including
the widows and ex-servicemen.

5. Para 17 of the Writ Petition
contains the following pleadings: -

"17. That the service of the
petition are entitled to be regularized on
the subject post as a P.R.T. Teacher in view
of the long standing teaching and working
experience of 25 years as a P.R.T.
Teacher in Army Public School, Bareilly
Cantonment, District Bareilly at par with
other permanent teachers in view of
Supreme
Court
Judgment
dated
:
26.09.2023.

A true copy of the judgment dated
: 26.09.2023 passed by Hon'ble Apex
Court is being filed herewith and marked
as ANNEXURE-14 to this writ petition."

6. As per the pleadings made in other
paragraphs of the Writ Petition, the
petitioner was initially appointed on
19.08.2010/18.07.2010 and she has worked
for a total of 14 years under five different
contract of service and the period of her
last
contract
of
service
expired
on
31.03.2024. The averment made in para 17
of the Writ petition that the petitioner has
long
standing
teaching
and
working
experience of 25 years as a P.R.T. Teacher
in
Army
Public
School,
Bareilly
Cantonment, District Bareilly, is false on
the face of the record.

7. The entire Writ Petition has been
signed by Shammi Kumar, - the husband of
the petitioner, who has filed his affidavit in
support of the Writ Petition.

8. The procedure to be followed for
filing of cases in this High Court is
provided in the Allahabad High Court
Rules, 1952, Chapter I whereof deals with
Preliminary matters. Rule 7 of Chapter I of
the Allahabad High Court Rules provides
that: -

"7. Date :- (i) Every application,
petition objection or memorandum of
appeal, presented in Court, shall be signed
on every page by the applicant, the
petitioner, the objector or the appellant, as
the case may be, or by an advocate
appearing on his behalf and shall be
dated."

9. The petitioner has not signed the
Writ Petition to take personal responsibility
of the false averments made therein.
8 All. Ms. Tanu Jetly Vs. The Chairman/Secretary, Army Welfare Education Society, Ministry of
 Defence, New Delhi & Ors.
333

10. Without the Writ Petition having
been signed by the petitioner herself, the
Writ Petition ought not to have been
accepted by the Registry of this Court and
at least the Stamp Reporting Section ought
to have pointed out this defect in the Writ
Petition. The officials of the Stamp
Reporting Section are advised to be careful
in future and to examine whether the Writ
Petitions comply with the provisions
contained in Rule 7 of Chapter I of the
Allahabad High Court Rules.

11. However, as the Writ Petition has
come up before the Court and submissions
on its admission have been heard, I proceed
to examine the admissibility of the Writ
Petition on the basis of the averments
contained in it.

12. The document referred to in
paragraph 17 of the Writ Petition as "the
judgment dated 26.09.2023 passed by the
Hon'ble Supreme Court is in fact an
interlocutory order passed by the Hon'ble
Supreme Court in S.L.P. (Civil) No. 7994
of 2022 titled Urmila Chauhan versus
The Chairman Army Public School and
others, which provides as follows: -

"6.
We
have
perused
the
documents that have been filed by the
respondent-School. Nothing adverse to the
petitioner is revealed in the summary of the
ACRs for the years 2009-2010 to 2016-2017.
In fact, the petitioner was recommended for
being appointed as a regular teacher as is
apparent from the noting sheets of the
respondent - school filed with the additional
documents. However subsequently, the
Chairman of the respondent-School advised
that the matter be put up for consideration
later on.

7. We are of the opinion that in
view
of
the
aforesaid
facts
and
circumstances, it is a fit case where the
respondent-School ought to reconsider
appointing the petitioner on the subject
post as a regular teacher. We therefore,
direct the Competent Authority of the
respondent School to reconsider the
petitioner's case for regularization to the
subject post within six weeks from today,
keeping in mind the aspects referred to
hereinabove
and
file
an
affidavit
immediately thereafter."

13. The learned Counsel for the
petitioner has placed an interlocutory order
terming it as a judgment of the Hon'ble
Supreme Court. Although the learned
Counsel for the petition did not inform the
Court about the final decision of Urmila
Chauhan's case, the aforesaid S.L.P. has
been decided by means of an order dated
19.01.2024, in which the Hon'ble Supreme
Court observed that: -

"6. In the peculiar facts of the
instant case and particularly keeping in
mind the fact that the management of the
respondent-School
has
been
shifting
stands from time to time, sometimes
placing on record its appreciation for the
work done by the appellant and on other
occasions, pointing out that she was not
up to the mark, it is deemed appropriate to
set aside the impugned judgment dated
30th 2 March, 2022, whereunder the
directions issued by the learned Single
Judge to regularize the appellant in
service has been held to be unsustainable.
As a consequence, the judgment dated 04th
May, 2021 passed by the learned Single
Judge is restored with a modification that
since
the
appellant
has
not
been
discharging her duties from 04th May,
2021 till now, she will not be entitled to any
back wages for the said period. However,
her continuity of service and other
334 INDIAN LAW REPORTS ALLAHABAD SERIES
consequential
benefits
shall
not
be
adversely affected."

(Emphasis added)

14. Therefore, it is clear that the
case of Urmila Chauhan (Supra) was
decided without going into the question
of maintainability of the Writ Petition
filed against Army Public School and it
was decided in view of the peculiar facts
and circumstances of the case where the
petitioner was recommended for being
appointed as a regular teacher as is
apparent from the noting sheets of the
respondent - school filed with the
additional
documents.
However
subsequently,
the
Chairman
of
the
respondent-School advised that the matter
be put up for consideration later on and
the management of the respondent-School
has been shifting stands from time to
time.

15. The question of maintainability of
a Writ Petition under Article 226 against
Army Welfare Society, which runs and
manages Army Public Schools, has been
decided by the Hon'ble Supreme Court in
Army Welfare Education Society v.
Sunil Kumar Sharma, 2024 SCC OnLine
SC 1683, wherein the Hon'ble supreme
Court
has
framed
and
decided
the
following two questions of law:-

"a. Whether the appellant Army
Welfare Education Society is a "State"
within Article 12 of the Constitution of
India so as to make a writ petition under
Article
226
of
the
Constitution
maintainable against it? In other words,
whether a service dispute in the private
realm involving a private educational
institution and its employees can be
adjudicated upon in a writ petition filed
under Article 226 of the Constitution?

b. Even if it is assumed that the
appellant Army Welfare Education Society
is a body performing public duty amenable
to writ jurisdiction, whether all its
decisions are subject to judicial review or
only those decisions which have public law
element therein can be judicially reviewed
under the writ jurisdiction?"

16. The Hon'ble Supreme Court
relied upon a precedent in the case of St.
Mary's Education Society v. Rajendra
Prasad Bhargava: (2023) 4 SCC 498, in
which the following two questions fell for
the consideration of the Court:-

"(a) Whether a writ petition
under Article 226 of the Constitution of
India is maintainable against a private
unaided minority institution?

(b) Whether a service dispute in
the private realm involving a private
educational institution and its employee
can be adjudicated in a writ petition filed
under Article 226 of the Constitution? In
other words, even if a body performing
public duty is amenable to writ jurisdiction,
are all its decisions subject to judicial
review or only those decisions which have
public element therein can be judicially
reviewed under the writ jurisdiction?"

17. The final conclusion drawn in St.
Mary's Education Society (Supra) is
reproduced hereinbelow:-

"75. We may sum up our final
conclusions as under:-

75.1.
An
application
under
Article
226
of
the
Constitution
is
maintainable against a person or a body
discharging
public
duties
or
public
functions. The public duty cast may be
either statutory or otherwise and where it is
otherwise, the body or the person must be
8 All. Ms. Tanu Jetly Vs. The Chairman/Secretary, Army Welfare Education Society, Ministry of
 Defence, New Delhi & Ors.
335
shown to owe that duty or obligation to the
public involving the public law element.
Similarly, for ascertaining the discharge of
public function, it must be established that
the body or the person was seeking to
achieve the same for the collective benefit
of the public or a section of it and the
authority to do so must be accepted by the
public.

75.2. Even if it be assumed that
an educational institution is imparting
public duty, the act complained of must
have a direct nexus with the discharge of
public duty. It is indisputably a public law
action which confers a right upon the
aggrieved to invoke the extraordinary writ
jurisdiction under Article 226 for a
prerogative writ. Individual wrongs or
breach of mutual contracts without having
any public element as its integral part
cannot be rectified through a writ petition
under Article 226. Wherever Courts have
intervened in their exercise of jurisdiction
under Article 226, either the service
conditions were regulated by the statutory
provisions or the employer had the status of
"State" within the expansive definition
under Article 12 or it was found that the
action complained of has public law
element.

75.3. It must be consequently held
that while a body may be discharging a
public function or performing a public
duty and thus its actions becoming
amenable
to
judicial
review
by
a
constitutional court, its employees would
not have the right to invoke the powers of
the High Court conferred by Article 226 in
respect of matter relating to service where
they are not governed or controlled by the
statutory
provisions.
An
educational
institution may perform myriad functions
touching various facets of public life and in
the societal sphere. While such of those
functions as would fall within the domain of
a "public function" or "public duty" be
undisputedly
open
to
challenge
and
scrutiny
under
Article
226
of
the
Constitution, the actions or decisions
taken solely within the confines of an
ordinary contract of service, having no
statutory force or backing, cannot be
recognised
as
being
amenable
to
challenge under Article 226 of the
Constitution. In the absence of the service
conditions being controlled or governed by
statutory provisions, the matter would
remain in the realm of an ordinary contract
of service.

75.4. Even if it be perceived that
imparting education by private unaided
school is a public duty within the expanded
expression of the term, an employee of a
non-teaching staff engaged by the school
for the purpose of its administration or
internal management is only an agency
created by it. It is immaterial whether "A"
or "B" is employed by school to discharge
that duty. In any case, the terms of
employment of contract between a school
and non-teaching staff cannot and should
not be construed to be an inseparable part
of the obligation to impart education. This
is particularly in respect to the disciplinary
proceedings that may be initiated against a
particular employee. It is only where the
removal of an employee of non-teaching
staff is regulated by some statutory
provisions, its violation by the employer in
contravention of law may be interfered with
by the Court. But such interference will be
on the ground of breach of law and not on
the basis of interference in discharge of
public duty.

75.5. From the pleadings in the
original writ petition, it is apparent that no
element of any public law is agitated or
otherwise made out. In other words, the
action challenged has no public element
and writ of mandamus cannot be issued as
336 INDIAN LAW REPORTS ALLAHABAD SERIES
the action was essentially of a private
character.

76. In view of the aforesaid
discussion, we hold that the learned Single
Judge of the High Court was justified in
taking the view that the original writ
application filed by Respondent 1 herein
under Article 226 of the Constitution is not
maintainable. The appeal court could be
said to have committed an error in taking a
contrary view."

(Emphasis added)

18. After quoting the aforesaid law
laid down in St. Mary's case, the Hon'ble
Supreme Court held in Army Welfare
Education Society v. Sunil Kumar
Sharma that: -

"42. In view of the aforesaid,
nothing more is required to be discussed in
the present appeals. We are of the view that
the High Court committed an egregious
error in entertaining the writ petition filed
by the respondents herein holding that the
appellant society is a "State" within Article
12 of the Constitution. Undoubtedly, the
school run by the Appellant Society imparts
education. Imparting education involves
public duty and therefore public law
element could also be said to be involved.
However, the relationship between the
respondents herein and the appellant
society is that of an employee and a private
employer arising out of a private contract.
If there is a breach of a covenant of a
private contract, the same does not touch
any public law element. The school cannot
be said to be discharging any public duty in
connection with the employment of the
respondents."

19. In view of the aforesaid
pronouncement of law by the Hon'ble
Supreme Court, the Writ Petition filed by
the petitioner seeking continuance and
regularization of her contractual service in
Army Public School after termination
thereof due to efflux of contract period, is
not maintainable and it is dismissed as such
at the admission stage itself.
----------
(2024) 8 ILRA 336
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 9377 of 2024

Mukesh Kumar Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Thakur Prasad Dubey

Counsel for the Respondents:
C.S.C., M.N. Singh

(A) Service Law - The U.P. Public Service
Commission
Advertisement,
2023
-
Rejection
of
Candidature
for
NonSubmission of Offline Application Form
and Documents within Prescribed Time
Limit - If a candidate fails to submit either
application or requisite documents up to
the
last
date
prescribed
under
the
advertisement, no further opportunity can
be afforded to such candidate and for such
negligence, may be due to inadvertence,
subsequently application at the instance
of such candidate cannot be allowed -
once the conditions stipulated under the
advertisement
are
not
fulfilled
the
department cannot be held liable for the
same and candidate will have to suffer.
(Para - 5)

Petitioner applied for Assistant Private Secretary
position
in
U.P.
Secretariat
online
-
advertisement required applicants to submit a