# Army Welfare Education Society New Delhi v. Sunil Kumar Sharma & Ors. Etc

- **Citation:** 2024 INSC 501
- **Court:** Supreme Court of India
- **Decided:** 2024-07-09
- **Case number:** Civil Appeal Nos. 7256-7259 of 2024
- **Bench:** J.B. Pardiwala, Manoj Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/army-welfare-education-society-new-delhi-v-sunil-kumar-sharma-ors-etc-38114
- **Pages:** 72

## Headnote

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.
Headnotes†
Constitution of India - Art.12 and Art.226 - A service dispute
in the private realm involving a private educational institution
(Army Welfare Education Society) and its employees - Whether
appellant-Army Welfare Education Society is a "State" within
Art.12 - The High Court held that appellant society is a "State"
within Art.12 of the Constitution - Correctness:
Held: High Court committed an egregious error in entertaining
the writ petition filed by the respondents-employees 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
* Author
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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. [Para 42]
Constitution of India - In the instant case, 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:
Held: It was held in St. Mary's Education Society & Anr. v. Rajendra
Prasad Bhargava & Ors. that merely because a writ petition can
be maintained against the private individuals discharging the
public duties and/or public functions, the same should not be
entertained if the enforcement is sought to be secured under the
realm of a private law - It would not be safe to say that the moment
the private institution is amenable to writ jurisdiction then every
dispute concerning the said private institution is amenable to writ
jurisdiction - It largely depends upon the nature of the dispute
and the enforcement of the right by an individual against such
institution - The right which purely originates from a private law
cannot be enforced taking aid of the writ jurisdiction irrespective of
the fact that such institution is discharging the public duties and/or
public functions - The scope of the mandamus is basically limited
to an enforcement of the public duty and, therefore, it is an ardent
duty of the court to find out whether the nature of the duty comes
within the peripheral of the public duty - There must be a public
law element in any action - In the instant case, 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. [Paras 38, 39, 40, 42]
Doctrine/Principles - Doctrine of Legitimate Expectation -

## Text

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[2024] 7 S.C.R. 2176 : 2024 INSC 501
Army Welfare Education Society New Delhi
v.
Sunil Kumar Sharma & Ors. Etc.
(Civil Appeal Nos. 7256-7259 of 2024)
09 July 2024
[J.B. Pardiwala* and Manoj Misra, JJ.]
Issue for Consideration
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.
Headnotes†
Constitution of India - Art.12 and Art.226 - A service dispute
in the private realm involving a private educational institution
(Army Welfare Education Society) and its employees - Whether
appellant-Army Welfare Education Society is a "State" within
Art.12 - The High Court held that appellant society is a "State"
within Art.12 of the Constitution - Correctness:
Held: High Court committed an egregious error in entertaining
the writ petition filed by the respondents-employees 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
* Author
[2024] 7 S.C.R.
2177
Army Welfare Education Society New Delhi v.
Sunil Kumar Sharma & Ors. Etc.
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. [Para 42]
Constitution of India - In the instant case, 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:
Held: It was held in St. Mary's Education Society & Anr. v. Rajendra
Prasad Bhargava & Ors. that merely because a writ petition can
be maintained against the private individuals discharging the
public duties and/or public functions, the same should not be
entertained if the enforcement is sought to be secured under the
realm of a private law - It would not be safe to say that the moment
the private institution is amenable to writ jurisdiction then every
dispute concerning the said private institution is amenable to writ
jurisdiction - It largely depends upon the nature of the dispute
and the enforcement of the right by an individual against such
institution - The right which purely originates from a private law
cannot be enforced taking aid of the writ jurisdiction irrespective of
the fact that such institution is discharging the public duties and/or
public functions - The scope of the mandamus is basically limited
to an enforcement of the public duty and, therefore, it is an ardent
duty of the court to find out whether the nature of the duty comes
within the peripheral of the public duty - There must be a public
law element in any action - In the instant case, 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. [Paras 38, 39, 40, 42]
Doctrine/Principles - Doctrine of Legitimate Expectation -
The respondents contended that they were under a legitimate
expectation that their service conditions and salary would
not be unilaterally altered by the appellant society to their
disadvantage - Thus, as the respondents were neither
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consulted with nor taken in confidence by the appellant society
before effecting the changes in their service conditions,
it amounted to a breach of their legitimate expectation, thereby
making it a fit case for the exercise of writ jurisdiction by the
High Court:
Held: The following are features regarding the doctrine of legitimate
expectation: First, legitimate expectation must be based on a
right as opposed to a mere hope, wish or anticipation; Secondly,
legitimate expectation must arise either from an express or implied
promise; or a consistent past practice or custom followed by an
authority in its dealings; Thirdly, expectation which is based on
sporadic or casual or random acts, or which is unreasonable,
illogical or invalid cannot be treated as a legitimate expectation;
Fourthly, legitimate expectation operates in relation to both
substantive and procedural matters; Fifthly, legitimate expectation
operates in the realm of public law, that is, a plea of legitimate
action can be taken only when a public authority breaches a
promise or deviates from a consistent past practice, without any
reasonable basis; Sixthly, a plea of legitimate expectation based
on past practice can only be taken by someone who has dealings,
or negotiations with a public authority - It cannot be invoked by
a total stranger to the authority merely on the ground that the
authority has a duty to act fairly generally - It is clear that legitimate
expectation, jurisprudentially, was a device created in order to
maintain a check on arbitrariness in state action - It does not
extend to and cannot govern the operation of contracts between
private parties, wherein the doctrine of promissory estoppel
holds the field - In the instant case, the relationship between
the administration of an institution and its employees remains a
contractual one, falling within the ambit of private law - Nothing
has been placed on record by the respondents to show that any
express or implied promise was made by the appellant regarding
keeping their salary and service conditions intact - There is no
statutory obligation on the appellant society which requires that
the salaries and allowances of the respondents are to be kept at
par with what is payable to teachers of Government institutions -
Lastly, the appellant society, for the purposes of its relationship
with its employees, cannot be regarded as a public or Government
authority - For all the aforesaid reasons, the doctrine of legitimate
expectation will have no applicability to the facts of the present
case. [Paras 48, 49, 50, 51, 52]
[2024] 7 S.C.R.
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Case Law Cited
St. Mary's Education Society & Anr. v. Rajendra Prasad Bhargava
& Ors. [2022] 8 SCR 301 : (2023) 4 SCC 498; Union of India v.
Hindustan Development Corporation [1993] 3 SCR 128 : (1993)
3 SCC 499; Ram Pravesh Singh v. State of Bihar [2006] Supp. 6
SCR 512 : (2006) 8 SCC 381; Jitender Kumar v. State of Haryana
[2007] 13 SCR 98 : (2008) 2 SCC 161 - relied on.
Army School, Kunaraghat, Gorakhpur v. Smt. Shilpi Paul (2004)
5 AWC 4934; Executive Committee of Vaish Degree College v.
Lakshmi Narain [1976] 2 SCR 1006 : (1976) 2 SCC 58 : AIR
1976 SC 888; J. Tiwari v. Jawala Devi Vidya Mandir (1979) 4
SCC 160; Dipak Kumar Biswas v. Director of Public Instruction
[1987] 2 SCR 572 : (1987) 2 SCC 252; Tekraj v. Union of India
[1988] 2 SCR 260 : (1988) 1 SCC 236; Shri Anadi Mukta Sadguru
Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak
Trust & Ors. v. V. R. Rudani & Ors. [1989] 2 SCR 697 : (1989)
2 SCC 691; K. Krishnamacharyulu & Ors. v. Sri Venkateswara
Hindu College of Engineering & Anr. [1997] 2 SCR 368 : (1997)
3 SCC 571; Satimbla Sharma v. St. Paul's Senior Secondary
School [2011] 10 SCR 203 : (2011) 13 SCC 760; Regina v. St.
Aloysius Higher Secondary School [1971] Supp. 1 SCR 6 : (1972)
4 SCC 188 : AIR 1971 SC 1920; Binny Ltd. v. V. Sadasivan [2005]
Supp. 2 SCR 421 : (2005) 6 SCC 657; Apollo Tyres Ltd. v. C.P.
Sebastian [2009] 7 SCR 336 : (2009) 14 SCC 360; K.K. Saksena
v. International Commission on Irrigation & Drainage [2014] 14
SCR 892 : (2015) 4 SCC 670; G. Bassi Reddy v. International
Crops Research Institute [2003] 1 SCR 1174 : (2003) 4 SCC
225; Praga Tools Corpn. v. C.A. Imanual [1969] 3 SCR 773 :
(1969) 1 SCC 585; Federal Bank Ltd. v. Sagar Thomas [2003]
Supp. 4 SCR 121 : (2003) 10 SCC 733; Janet Jeyapaul v. SRM
University [2015] 10 SCR 1049 : (2015) 16 SCC 530; Committee
of Management, Delhi Public School v. M.K. Gandhi (2015) 17 SCC
353; Trigun Chand Thakur v. State of Bihar (2019) 7 SCC 513;
S.K. Varshney v. Principal, Our Lady of Fatima Higher Secondary
School (2023) 4 SCC 539; Vidya Ram Misra v. Shri Jai Narain
College [1972] 3 SCR 320 : (1972) 1 SCC 623 : AIR 1972 SC 1450;
T.M.A. Pai Foundation v. State of Karnataka [2002] Supp. 3 SCR
587 : (2002) 8 SCC 481; Ahmedabad St. Xavier's College Society
v. State of Gujarat [1975] 1 SCR 173 : (1974) 1 SCC 717; Unni
Krishnan, J.P. v. State of A.P. [1993] 1 SCR 594 : (1993) 4 SCC 111;
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Sushmita Basu v. Ballygunge Siksha Samity [2006] Supp. 6 SCR
506 : (2006) 7 SCC 680; Ramakrishna Mission v. Kago Kunya
[2019] 5 SCR 452 : (2019) 16 SCC 303 - referred to.
Roychan Abraham v. State of U.P., AIR 2019 All 96; Uttam Chand
Rawat v. State of U.P. (2021) 6 ALL LJ 393 (FB); Anita Verma v.
D.A.V. College Management Committee, Unchahar, Rai Bareilly
(1992) 1 UPLBEC 30 - referred to.
List of Acts
Constitution of India.
List of Keywords
Article 12 of Constitution; State; Article 226 of Constitution;
Service dispute; Private Educational Institution; Public law element;
Army Welfare Education Society; Scope of mandamus; Enforcement
of public duty; Breach of a covenant of a private contract; Doctrine
of Legitimate Expectation; Private contract; Doctrine of promissory
estoppel; Judicial review.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7256-7259 of
2024
From the Judgment and Order dated 02.11.2018 in SPA No. 524 of
2014 in WPSS No. 439 of 2015 in WPMS No. 776 of 2015 in SPA
No. 128 of 2015 and dated 09.10.2020 in RA No. 1623 of 2018 of the
High Court of Uttarakhand at Nainital
With
Civil Appeal Nos. 7260-7264 of 2024
Appearances for Parties
Naresh Kaushik, Sr. Adv., Abhinav Agrawal, Kartik Sharma, Vardhman
Kaushik, Anand Singh, Manoj Joshi, Shubham Dwivedi, Advs. for
the Appellant.
Navin Pahwa, Sridhar Potaraju, Sr. Advs., B. Shravanth Shanker,
Aayush, Rajat Srivastava, Lalit Mohan, Rahul Jajoo, Ms. Grahita
Agarwal, Ms. Manju Jetley, Ms. Pankhuri Shrivastava, Ms. Neelam
Sharma, Rajeev Sharma, Advs. for the Respondents.
[2024] 7 S.C.R.
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Army Welfare Education Society New Delhi v.
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Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
For the convenience of exposition, this judgment is divided into the
following parts:
INDEX*
A. FACTUAL MATRIX.....................................................................
2
B. ISSUES FOR DETERMINATION...............................................
8
C. SUBMISSIONS ON BEHALF OF THE APPELLANT................
9
D. SUBMISSIONS ON BEHALF OF THE RESPONDENTS.........
14
E. JUDGMENT PASSED BY THE LEARNED SINGLE JUDGE..
17
F.
APPEAL COURT JUDGMENT..................................................
23
G. ANALYSIS..................................................................................
26
i.
Position of Law..................................................................
30
ii. Doctrine of Legitimate Expectation.................................
83
H. CONCLUSION............................................................................
90
1.
Leave granted.
2.
Since the issues raised in both the captioned appeals are the same
and the challenge is also to the self-same judgment and order passed
by the High Court of Uttarakhand, those were taken up for hearing
analogously and are being disposed of by this common judgment
and order.
A.
FACTUAL MATRIX
3.
These appeals arise from the common judgment and order passed
by the High Court of Uttarakhand at Nainital dated 02.11.2018 in
Special Appeal No. 523 of 2014, Special Appeal No. 524 of 2014,
Special Appeal No.128 of 2015, Writ Petition No. 439 of 2015 and Writ
Petition No. 776 of 2015 resply by which the High Court dismissed
the appeals filed by the appellants herein and thereby affirmed the
judgment and order passed by the learned single Judge of the High
Court dated 05.08.2014 in Writ Petition No. 341 of 2012 filed by the
respondents herein.
* Ed. Note: Pagination as per the original Judgment.
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4.
The controversy involved in the present litigation falls within a very
narrow compass. We need not state the facts in detail as the order
passed by a coordinate Bench of this Court dated 15.02.2021 speaks
for itself and gives more than a fair idea as regards the dispute
between the parties. The order dated 15.02.2021 reads thus:-
"1. Delay condoned.
2. We have heard Mr Sajan Poovayya, learned Senior
Counsel appearing on behalf of the Bengal Engineering
Group and Centre, the petitioner in the Special Leave
Petitions arising out of SLP (C) Diary No 24505 of 2020,
with Mr Abhinav Agrawal, learned counsel, Mr Naresh
Kaushik, learned counsel appearing on behalf of Army
Welfare Education Society1, petitioner in the Special
Leave Petition arising out of SLP(C) Diary No 26155 of
2020 and Mr Gopal Sankaranarayanan, learned Senior
Counsel appearing on behalf of the caveators.
3. The submission which has been urged by the learned
counsel appearing on behalf of the petitioners is that the
Bengal Engineering Group and Centre had entered into
a lease agreement with the Institute of Brothers of St.
Gabriel in respect of the land, which is a B-3 class land
under the Cantonment. A School was being conducted by
St Gabriel's Academy. After the term of the lease came to
an end, a decision was taken to run a school under the
auspices of AWES. AWES runs about 139 schools all over
the country. On 28 February 2012, a letter was addressed
to the staff of the school indicating that those among the
teachers who are eligible in terms of CBSE guidelines
would be considered for appointment on ad hoc basis
for one year and would have to appear and qualify in a
written test under AWES Rules and the teachers will be
paid salary at par with the service conditions applicable
to other teachers of the Army Public Schools. This gave
rise to the filing of a writ petition before the High Court of
Uttarakhand. The Single Judge allowed the writ petition
by issuing a mandamus to the petitioners not to vary the
service conditions of the teaching and nonteaching staff to
their disadvantage. During the pendency of the proceedings
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before the Division Bench in appeal, an order was passed
by the High Court on 6 January 2016. Paragraphs 3 and 4
of the order read as follows:
"3. BEG has decided to run the institution as an
Army School under the Army Welfare Education
Society (AWES), which has also come up in
appeal against the judgment. According to
AWES, it is running 134 schools all over India.
They have a complaint that, at present, for the
past two years since 1st April 2012, they are
collecting fees at the rates they are collecting
in the other Army Public Schools and, yet, they
have been compelled to pay the salary, which
is being paid to the teachers earlier by St.
Gabriel's, which was in fact collecting far more
fees and there is a huge deficit. According to
them, they will not terminate the services of
the teachers and non-teaching staff, if AWES
is permitted to take over; but, they will be paid
the salary in terms of the standards, which
they have in respect of the other Army Public
Schools. It is their case that they are prepared
to allow the teachers and non-teaching staff to
continue, provided some modalities are complied
with, relevance of which may not present itself
immediately. According to the teachers and
non-teaching staff, they have a right to continue
as such.
4. We would think that the interest of justice
requires that the arrangement, which has been
ordered by the Court in Writ Petition No. 776
of 2015 (M/S) must be modified. Accordingly,
we modify the order and direct that AWES
can take over the management of the school
and the teaching and other non-teaching staff
will be allowed to continue, however, with
the modification that the pay will be such as
they would be entitled to treating it as another
Army Public School. This arrangement will
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be provisional and subject to the result of the
litigation and without prejudice to the contentions
of the parties. The Committee will handover the
management to the AWES upon production of
a certified copy of this order. The accounts,
etc., will also be handed over to the Principal
of the school. We record the submission of the
learned counsel appearing for St Gabriel's that
they will handover the amount representing
gratuity, earned leave encashment and the
installment of the sixth pay commission directly
to the teachers and other nonteaching staff. We
make it clear that the school can be run in terms
of the Rules of AWES otherwise. The payment
of salary as per AWES can commence from 1st
January, 2016."
4. The Division Bench eventually dismissed the Special
Appeal against the judgment of the Single Judge, which
has given rise to the proceedings before this Court under
Article 136 of the Constitution.
5. On behalf of the petitioners, it was submitted that the
teaching and nonteaching staff were employees of St
Gabriel's Academy and since the erstwhile management
has ceased to conduct the school, the staff would have
no claim as against AWES which is conducting the school,
at present.
6. In order to resolve the dispute, a suggestion has been
made by learned counsel for the petitioners to the effect
that the teaching and non-teaching staff of the erstwhile
school which is continuing with the present school, which is
conducted by AWES, would be continued on a permanent
basis. However, it has been submitted that their conditions
of service will be those which are applicable to the
teaching and non-teaching staff of Army Public Schools.
It has been submitted that under the judgment of the High
Court the petitioners would be obligated to provide service
conditions at par with the teaching and nonteaching staff
which was recruited by the erstwhile management which
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would involve an outlay which the Army Public School will
not be in a financial position to meet. That apart, it has
been submitted that there cannot be two sets of service
conditions in respect of the same school.
7. Responding to the above submissions, Mr Gopal
Sankaranarayanan with Mr B Shravanth Shanker, learned
counsel, submitted that there are two areas which would
require to be resolved, namely,:
(i) Seniority of the teaching and non-teaching
staff due to the past service should be taken
into account; and
(ii) In computing their terminal dues, benefit of
the past service should be taken into reckoning.
8. We find prima facie that the suggestions which have
emerged from both the sides are fair and proper in their
own way, in order to resolve the dispute amicably. If the
dispute is eventually resolved amicably, it would be ensured
that, on the one hand, the teaching and non-teaching
staff of the erstwhile school would not be displaced and
continue to get employment in the present school and,
at the same time, their service conditions are at par with
those which are applicable to the employees of the Army
Public Schools.
9. In order to enable the Court to give the parties an
opportunity to resolve the dispute finally, we are of the
view that a meeting should be held between the concerned
authorities of the School as well as the representatives
of the employees in the presence of the learned Senior
Counsel so that agreed terms for resolving the dispute
finally can be presented before this Court.
10. To facilitate this, we stand over the proceedings by
a period of four weeks. The proceedings shall now be
listed on 22 March 2021. In the meantime, we request all
the parties to ensure that a meeting is convened within
a period of one week from today so that progress can
effectively be made towards a satisfactory resolution of
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the dispute in a spirit of dialogue in which the parties have
addressed the Court.
11. We direct that no further steps shall be taken in the
contempt proceedings till the next date of listing.
12. The services of the teaching and non-teaching staff
who are continuing in the management of the Army Public
School at Roorkee, at present, shall not be disturbed in
the meantime."
5.
It appears that after the aforesaid order was passed, the following
order dated 23.07.2021 came to be passed:-
"1. Issue notice.
2. Mr Gopal Sankaranarayanan, learned Senior Counsel,
appears on behalf of the first respondent with Mr B
Shravanth Shanker, learned counsel and waives service.
3. Pending further orders, we stay the operation of the
judgments and orders of the High Court dated 2 November
2018 in SPA Nos 523 and 524 of 2014, Writ Petition Nos
439 of 2015 and 776 of 2015 and SPA No 128 of 2015
and dated 9 October 2020 in MCC No 1623 of 2018 and
1626 of 2018, subject to the following conditions:
(i) The respondent - employees who are
presently in service shall continue to be on the
rolls of Army Public School No 2 conducted
by the Army Welfare Education Society1 at
Roorkee; and
(ii) The employees shall be entitled to receive
their emoluments and other conditions of
service at par with the other employees of the
corresponding grade who are engaged by the
AWES in Army Public School No 2."
B.
ISSUES FOR DETERMINATION
6.
The following two questions of law fall for our consideration:-
a.
Whether the appellant Army Welfare Education Society is a
"State" within Article 12 of the Constitution of India so as to make
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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?
C.
SUBMISSIONS ON BEHALF OF THE APPELLANT
7.
Mr. Naresh Kaushik, the learned senior counsel appearing for the
appellant submitted that the respondents originally were employees
of an unaided private minority public school by the name St. Gabriel's
Academy. As St. Gabriel's Academy is no longer in existence, the
teaching and non-teaching staff of St. Gabriel's Academy came to be
absorbed by the appellant society. In such circumstances, according
to the learned counsel, the writ petition filed by the respondents before
the High Court, by itself, was not maintainable. According to him,
the learned single Judge committed a serious error in entertaining
such writ petition at the instance of the respondents herein. Even
the appeal Court committed the same error.
8.
It was further submitted that the appellant is a wholly unaided private
society which was established to provide educational facility to meet
the needs of the children of the army personnel including the widows
and ex-servicemen. It was pointed out that the appellant society is
running many schools and institutions and the entire finance for the
purpose of administration is managed from the fees collected from
the students of the respective school and institution.
9.
It was argued that there was no privity of contract between the
appellant society and the staff of St. Gabriel's Academy. It was also
argued that St. Gabriel's Academy was being run and administered by
an unaided private minority society and the appointment/termination
of the staff was vested with the Brothers of St Gabriel's only. Further,
the Provincial Superior of the Institute of Brothers of St. Gabriel's
was the Chairman of School Management Committee (SMC) of St.
Gabriel's Academy as well. The Provincial Superior of the Society is
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the appointing authority, as well as the appellate authority for the staff,
and can appoint/terminate/retire the staff, in their schools. Further,
the Provincial Superior of the Society used to be the Head of School
Managing Committee vested with the power to appoint/nominate
the members as per their rules and regulations. The appellant had
no role to play in the affairs of the said school or its management.
10. It was also argued that the education of children is certainly a public
function, but that is not the issue in the present matter. The only
issue involved is the continuity of service and service conditions of
employees of St. Gabriel's Academy, a private minority institution.
Neither the institution nor the posts held by the teachers are governed
by any statutory obligation. Moreover, the burden of safeguarding
such service conditions has been erroneously placed on the appellant.
These service conditions are in clear contravention of those followed
by all 137 schools run by the appellant society resulting in creating
two sets of employees at the APS No. 2, Roorkee. A contract of
purely personal service between the Respondents and their erstwhile
employer, viz. St. Gabriels Academy cannot be executed against the
appellant in a writ petition with whom there is no privity of contract.
11. It was further pointed out that the appellants are running an Army
Public School under the aegis of the Army Welfare Education Society
which is a self-financing school managing all expenditures from the
school fees. It was submitted that if the impugned order is allowed
to operate and the arrangement made in the order dated 06.01.2016
which continued so far smoothly for 8 years is disturbed, the school
will suffer irreparable loss and might have to be closed down. The
demands of the respondents are outrageous which can be gauged
from the fact that the respondents have claimed an amount of
Rs. 5.10 crore in their Counter affidavit filed in 2021.
12. In the last, it was pointed out that all the respondents are currently
employed at APS No. 2, Roorkee, and their status is on par with
any other APS staff member. They are availing the same perks and
emoluments available to any APS No 2, Roorkee employee. The
basic pay as per the AWES Rules and Regulations was maintained
for the teaching staff in accordance with the recommendations
of the VI Pay Commission. Furthermore, for the members of the
teaching staff, experience of more than 5 years was accounted for
with additional increments at 3% of Basic Pay for every block of
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Army Welfare Education Society New Delhi v.
Sunil Kumar Sharma & Ors. Etc.
three years of service or part thereof, as of April 2012. Subsequently,
an annual increment of 3% of Basic Pay (as on March 31 of every
financial year) was provided for every completed year. Dearness
Allowance (DA), House Rent Allowance (HRA), and all other
applicable allowances, including free education for the wards of
staff, was considered as per the AWES Rules and Regulations, as
prevailing in January 2016. The salary of office and Class IV staff
was fixed as per the prevailing rules and seniority was catered to
by additional increments at 10% of the annual increment for every
three years of service. No employee came to be appointed after 2012
drawing a higher salary than the respondents. These staff members
have been given even ten to twelve increments, a practice usually
not followed in APS 2.
13. In such circumstances referred to above, the learned counsel
appearing for the appellant society submitted that there being merit
in the appeals, those may be allowed by setting aside the impugned
common judgment and order passed by the High Court. But at the
same time, the interim order passed by this Court dated 15.02.2021
may be made absolute.
D.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
14. On the other hand, these appeals have been vehemently opposed
by the learned senior counsel appearing for the respondent by
submitting that the no error, not to speak of any error of law, could
be said to have been committed by the High Court in passing the
impugned judgment and order. Accordingly to the learned counsel,
the appellant society is a "State" within Article 12 of the Constitution
for the following reasons:-
a)
That, as per the amendments made to the Memorandum of
Army Welfare Education Society, the address of the Army
Welfare Education Society (AWES) is shown to be the Adjutant
General's Branch in the Integrated headquarters of the Ministry
of Defence [MoD] (Army).
b)
Further, the Executive Committee and the Board of Governors
i.e., the President, Vice President and the Secretaries are none
other than the Lt. Generals, chief of the Army Staff, and General
Officer commanding in-chief of the Eastern, Southern, Western
and Northern commands.
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c)
That, as per the Financial Management clause of the said
Memorandum, "the corpus and grants for establishment
of Army educational institution will be provided by the
executive Committee from the welfare funds of the Adjutant
General Branch, Army Headquarters."
d)
AWES is a government run institution i.e., by the Ministry of
Defence and hence, a State under Article 12 of the Constitution
of India.
15. It was further submitted that the Army Public School-2, Roorkee, is
affiliated with the CBSE and is governed by its norms. In other words,
the AWES and its affiliate school - Army Public School-2, Roorkee
are governed and regulated by statutory provisions. Assuming for the
sake of arguments that the dispute is private in nature, the present
case is still amenable to writ jurisdiction for the service conditions
of the answering respondents are governed/regulated by statutory
provisions.
16. It was further argued that the CBSE Affiliation Bye-Laws
Norm 3 (v) categorically provides that "The school in India must
pay salaries and admissible allowances to the staff not less
that the corresponding categories of employees in the State
Government schools or as per scales etc. prescribed by the
Government of India." In fact, AWES publishes advertisement to
fill up any vacancy in Army Public School as "Govt. Jobs" in Job's
category. It was submitted that considering the alliance between the
appellant and St. Gabriel's Academy Roorkee, the respondents were
under a legitimate expectation that their conditions of service would
not be changed to their disadvantage by the appellant.
17. In such circumstances referred to above, the learned counsel
appearing for the respondents prayed that there being no merit in
the appeals, those may be dismissed and the impugned judgment
and order passed by the learned single Judge as affirmed in appeal
may be given effect to.
E.
JUDGMENT PASSED BY THE LEARNED SINGLE JUDGE
18. At this stage, we should also look into the judgment passed by
the learned single judge of the High Court dated 05.08.2014. The
relevant findings recorded by the learned single Judge is as under:-
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Army Welfare Education Society New Delhi v.
Sunil Kumar Sharma & Ors. Etc.
"10. As we have seen, the school in question was earlier
known as "St. Gabriel School" which was under the
management of a Society, namely, respondent no.4 i.e.
St. Gabriel Province of Delhi. Now the management has
changed and is presently with respondent no.5/Bengal
Sappers St. Gabriel's Academy, Roorkee.
11. According to the respondents, referred above, the
establishment of school in an Army Unit or Regimental
Center is a welfare activity which a Unit or Regimental
Center undertakes for the welfare of its personnel and
troops and this welfare work does not form apart of any
official or statutory duty of the officers of the Army so
engaged in the school activity and, therefore, the school
activity including its administration is entirely a private
enterprises undertaken by the officers and staff of the
Indian Army for the welfare of their personnel and their
dependents.
12. The said respondents (Respondent Nos. 2, 3, 5, 7)
further argue that in such a welfare activity, the Government
or the Indian Army does not have any control or a role
to play, leave aside any deep or pervasive control on the
administration or running of the School, as is alleged by
the petitioners. They also argue that the welfare activities
which are undertaken are financed entirely by raising
private funds, primarily from private contributions, by the
officers and men of various military establishments. The
fund is known as "Regimental Fund of the Unit" and is purely
private in nature and non-auditable by Central Defence
Accounts. The building furniture and equipments provided
to respondent nos. 3/Bengal Engineering Group Benevolent
Trust and earlier to respondent no.4/ Institute of Brothers
of St. Gabriel is provided from the Regimental funds which
is purely private property of Bengal Engineering Group
Benevolent Trust. There is no Central Government control
at all. It is further being argued that respondent nos. 1, 2
i.e. Union of India as well as the Bengal Engineering Group
and Centre have been made parties in the writ petition
with the sole purpose to make the matter amenable to
the writ jurisdiction of this Court, under Article 226 of the
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Constitution of India, though respondent nos. 1 and 2 do
not have any role to play in the present matter or dispute
and for the remaining respondents who are presently in
control of the affairs of the school a writ petition would
not be maintainable.
13. It has also been argued that the Commandant of
Bengal Engineering Group and Centre, Roorkee is only
the Ex-officio Chairman of the Bengal Engineering Group
Benevolent Trust and the welfare activity conducted by the
Trust are purely honorary having absolutely no relation
to official charter of the duty of army officers and army
persons. Respondent no.7 i.e. Army Welfare Education
Society is again a private unaided Society registered
under the Registration Act, hence does not come under
the writ jurisdiction it does not have any grant from the
Government of India, State Government and, therefore,
not a State or its instrumentalities as defined in Article 12
of the Constitution of India. In order to substantiate this
argument, learned counsel for the respondents Mr. Manoj
Tiwari, Senior Advocate and Mr. Pullak Raj Mullick have
relied upon a Division Bench judgment of Allahabad High
Court, namely, Army School, Kunaraghat, Gorakhpur
Vs. Smt. Shilpi Paul, 2004 (5) AWC 4934, where it was
held that an Army school is purely a private body and not
"State" under Article 12 of the Constitution of India, hence
writ petition was not maintainable against it. Since it has
been held that a writ petition is not maintainable against
an Army school by a Division Bench judgment of Allahabad
High Court the present writ petition is not maintainable,
which is also against an Army School and is exactly on the
same footing as the present school i.e. respondent no. 5,
which is now known as "Army School No.2". In paragraph
nos. 23, 25 and 26 of the above judgment the Division
Bench of Allahabad High Court said as under:-
"23. We have carefully considered these
judgments as well as the other decisions relied
on by the learned counsels for the parties.
We have also considered the decision of
the learned single judge of this Court in Abu
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Army Welfare Education Society New Delhi v.
Sunil Kumar Sharma & Ors. Etc.
Zaid v. Principal Madrasa-Tul-Islah Sarai Mir,
Azamgarh, Civil Misc. Writ Petition No. 14238
of 1998, decided on 28.7.1998. In the decision
of Abu Zaid v. Principal Madrasa-Tul-Islah Sarai
Mir, Azamgarh (supra) the learned single Judge
has held that a writ petition lies even against
a private educational institution since the
educational institution is discharging a public
duty of imparting education which has been held
to be a fundamental right by the Supreme Court.
We do not agree. In our opinion every school
cannot be regarded as State under Article 12
of the Constitution and a writ petition will not lie
against a purely private educational institution
not receiving funds from the Government or a
Government agency as it cannot be deemed to
be an instrumentality of the State.
25. We agree with the view taken by the learned
single Judge in V.K. Walia v. Chairman, Army
School Mathura Cannt. (supra) and we do not
agree with the view taken by the learned single
Judge in Smt. Rajni Sharma v. Union of India
(supra) since we are of the opinion that the Army
School, Gorakhpur, is not State under Article 12
of the Constitution as it does not receive funds
from the Government nor does the Government
have any control much less deep and pervasive
control over it.
26. A similar view was taken by a Division Bench
of the Jammu and Kashmir High Court in Writ
Petition No. 1415 of 1996, Mrs. Asha Khosa
v. Chairman, Army Public School, decided
on 17.2.1997, in which the Division Bench of
that Court held that the writ petition was not
maintainable as the Army Welfare Educational
Society is not an instrumentality of the State
under Article 12 of the Constitution. Against the
judgment of the Jammu and Kashmir High Court
a Special Appeal No. 6482 of 1997 was filed
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before the Supreme Court which was dismissed
on 31.3.1997. We fully agree with the view taken
by the Jammu and Kashmir High Court in the
aforesaid decision."
x x x x
25. During the discussions and negotiation before the
transfer, the authorities with whom the management was
to vest shortly have not made any definite commitment
or given assurance to the teaching or the non teaching
staff of the College regarding security of their tenure,
or regarding status of their service. In fact the teaching
and non teaching staff of the school were never taken
into confidence either by the BEG & C or the St. Gabriel
Society in their negotiations. When such agreement was
executed and the baton was handed over to the new
employer and management, the concern and interest
of those who are under the employment ought to be
addressed. These are the basic requirements when such
change over takes place in a civil society, which is bound
by the rule of law. The employees of the school have a
legitimate expectation that their conditions of service which
were applicable immediately before the change over will
not be varied to their disadvantage. However, this is what
the new employer intend to do, which is reflected in his
letter dated 28.02.2012. The danger to their service is not
a mere apprehension of the 14 petitioners.