# Dileep Kumar Pandey v. Union of India & Ors

- **Citation:** 2025 INSC 749
- **Court:** Supreme Court of India
- **Decided:** 2025-05-21
- **Case number:** Civil Appeal No. 10899 of 2013
- **Bench:** Abhay S. Oka, Augustine George Masih, Ahsanuddin Amanullah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dileep-kumar-pandey-v-union-of-india-ors-38652
- **Pages:** 33

## Headnote

Whether the Air Force School, Bamrauli, in District Allahabad, is a
'state or authority' within the meaning of Art.12 of the Constitution
of India; whether it would be amenable to writ jurisdiction u/Art.226
of the Constitution of India.
Headnotes†
Constitution of India - Arts.12, 226 - Writ petitions filed by
the appellants-teachers alleging wrong-doings w.r.t actions
taken against them by the respondent-Air Force School -
Division Bench of the High Court held that the said School is
not a 'State' within the meaning of Art.12 thus, writ petitions
u/Art.226 were not maintainable - Challenge to:
Held: Per Abhay S. Oka, J. (for himself and Augustine George
Masih, J.) Writ petitions not maintainable - No material to show that
the Government or the IAF has any control over the management
of the School - No evidence to show that it is actually financed by
the IAF, as alleged or that it receives a grant from Public Funds -
The School is not governed by any statutory regulations - The
Education Code, which applies to the School, does not have any
statutory sanction or force - It is issued under the authority of
the Chairman of the Board of Governors of the IAF Educational
and Cultural Society - The Society is a non-profit making welfare
association and the School is a non-public fund School - The
finance is arranged from the fees collected from students and
the air force personnel make a contribution through their welfare
fund - There is no control by the Central Govt. or the Ministry of
Defence over the running or management of the school - The dayto-day control is with the School Managing Committee - Further,
even if pay scales applicable to all IAF schools are determined by
the IAF, that by itself will not amount to pervasive control by the
* Author
[2025] 5 S.C.R.
1147
Dileep Kumar Pandey v. Union of India & Ors.
IAF over the functioning of the schools - Relationship between the
appellants and the said school is in the realm of private contract
not involving any public law element - View taken by the Division
Bench that the School/Society is not a 'State' within the meaning of
Art.12 and thus, writ petition u/Art.226 was not maintainable, upheld
[Paras 23, 21, 24] - Per Ahsanuddin Amanulla, J. (Dissent) Writ
petitions are maintainable - The School discharges a public function
of imparting education - IAF has full and all-pervasive control over
the management of the School, inclusive of disciplinary powers as
also the power to terminate employment - Control exercised by the
IAF, and by extension the Government of India, on the working of the
School is not merely regulatory in nature but deep and pervasive - In
every sphere of activity relating to the School, the funding consists
substantially of funds traceable to the public exchequer - The fact
that the land on which the School building stands belongs to and
was constructed with the funds of the IAF establishes the financial
support enjoyed by the School from the IAF - The Committee/
School would come within the ambit of 'authority' and also under
'other authorities' as employed in the Art.12 and amenable to writ
jurisdiction u/Art.226 of the Constitution - Impugned orders set
aside. [Paras 7, 9, 12, 25, 28, 30]

## Text

_Characters 0–39,998 of 73,863. This is a partial read: ask again with offset=39998 for what follows._

[2025] 5 S.C.R. 1146 : 2025 INSC 749
Dileep Kumar Pandey
v.
Union of India & Ors.
(Civil Appeal No. 10899 of 2013)
21 May 2025
[Abhay S. Oka,* Augustine George Masih and
Ahsanuddin Amanullah,* JJ.]
Issue for Consideration
Whether the Air Force School, Bamrauli, in District Allahabad, is a
'state or authority' within the meaning of Art.12 of the Constitution
of India; whether it would be amenable to writ jurisdiction u/Art.226
of the Constitution of India.
Headnotes†
Constitution of India - Arts.12, 226 - Writ petitions filed by
the appellants-teachers alleging wrong-doings w.r.t actions
taken against them by the respondent-Air Force School -
Division Bench of the High Court held that the said School is
not a 'State' within the meaning of Art.12 thus, writ petitions
u/Art.226 were not maintainable - Challenge to:
Held: Per Abhay S. Oka, J. (for himself and Augustine George
Masih, J.) Writ petitions not maintainable - No material to show that
the Government or the IAF has any control over the management
of the School - No evidence to show that it is actually financed by
the IAF, as alleged or that it receives a grant from Public Funds -
The School is not governed by any statutory regulations - The
Education Code, which applies to the School, does not have any
statutory sanction or force - It is issued under the authority of
the Chairman of the Board of Governors of the IAF Educational
and Cultural Society - The Society is a non-profit making welfare
association and the School is a non-public fund School - The
finance is arranged from the fees collected from students and
the air force personnel make a contribution through their welfare
fund - There is no control by the Central Govt. or the Ministry of
Defence over the running or management of the school - The dayto-day control is with the School Managing Committee - Further,
even if pay scales applicable to all IAF schools are determined by
the IAF, that by itself will not amount to pervasive control by the
* Author
[2025] 5 S.C.R.
1147
Dileep Kumar Pandey v. Union of India & Ors.
IAF over the functioning of the schools - Relationship between the
appellants and the said school is in the realm of private contract
not involving any public law element - View taken by the Division
Bench that the School/Society is not a 'State' within the meaning of
Art.12 and thus, writ petition u/Art.226 was not maintainable, upheld
[Paras 23, 21, 24] - Per Ahsanuddin Amanulla, J. (Dissent) Writ
petitions are maintainable - The School discharges a public function
of imparting education - IAF has full and all-pervasive control over
the management of the School, inclusive of disciplinary powers as
also the power to terminate employment - Control exercised by the
IAF, and by extension the Government of India, on the working of the
School is not merely regulatory in nature but deep and pervasive - In
every sphere of activity relating to the School, the funding consists
substantially of funds traceable to the public exchequer - The fact
that the land on which the School building stands belongs to and
was constructed with the funds of the IAF establishes the financial
support enjoyed by the School from the IAF - The Committee/
School would come within the ambit of 'authority' and also under
'other authorities' as employed in the Art.12 and amenable to writ
jurisdiction u/Art.226 of the Constitution - Impugned orders set
aside. [Paras 7, 9, 12, 25, 28, 30]
Case Law Cited
In the judgment of Abhay S. Oka, J. (for himself and Augustine
George Masih, J.)
Raj Soni v. Air Officer Incharge Administration & Anr. [1990] 2
SCR 412 : (1990) 3 SCC 261; All India Sainik Schools Employees'
Association v. Defence Minister-cum-Chairman Board of Governors,
Sainik Schools Society, New Delhi & Ors. [1988] Supp. 3 SCR
398 : (1989) Supp. 1 SCC 205 - distinguished.
St. Mary's Education Society & Anr. v. Rajendra Prasad Bhargava
& Ors. [2022] 8 SCR 301 : (2023) 4 SCC 498; Army Welfare
Education Society, New Delhi v. Sunil Kumar Sharma & Ors. Etc.,
[2024] 7 SCR 2176 : 2024 SCC Online SC 1683 - relied on.
Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna
Jayanti Mahotsav Smarak Trust & Ors. v. V.R. Rudani & Ors. [1989]
2 SCR 697 : (1989) 2 SCC 691; Pradeep Kumar Biswas v. Indian
Institute of Chemical Biology & Ors. [2002] 3 SCR 100 : (2002)
5 SCC 111; Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors.
[1981] 2 SCR 79 : (1981) 1 SCC 722 - referred to.
1148
[2025] 5 S.C.R.
Supreme Court Reports
In the judgment of Ahsanuddin Amanulla, J. (Dissent)
Union of India & Anr. v. Chotelal & Ors. [1998] Supp. 3 SCR 449 :
(1999) 1 SCC 554; R.R. Pillai (Dead) through LRs. v. Commanding
Officer, Headquarters Southern Air Command (U) and Ors. [2009]
7 SCR 118 : (2009) 13 SCC 311; Raj Soni v. Air Officer Incharge
Administration & Anr. [1990] 2 SCR 412 : (1990) 3 SCC 261; All
India Sainik Schools Employees' Association v. Defence Ministercum-Chairman Board of Governors, Sainik Schools Society, New
Delhi & Ors. [1988] SCR Supp. 3 398 : (1989) Supp. 1 SCC
205 - distinguished.
Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna
Jayanti Mahotsav Smarak Trust & Ors. v. V.R. Rudani & Ors. [1989]
2 SCR 697 : (1989) 2 SCC 691; Pradeep Kumar Biswas v. Indian
Institute of Chemical Biology & Ors. [2002] 3 SCR 100 : (2002)
5 SCC 111; Army Welfare Education Society, New Delhi v. Sunil
Kumar Sharma & Ors. Etc., [2024] 7 SCR 2176 : 2024 SCC Online
SC 1683; St.Mary's Education Society & Anr. v. Rajendra Prasad
Bhargava & Ors. [2022] 8 SCR 301 : (2023) 4 SCC 498; Sabhajit
Tewary v Union of India [1975] 3 SCR 616 : (1975) 1 SCC 485;
Janet Jeyapaul v. SRM University [2015] 10 SCR 1049 : (2015)
16 SCC 530; Zee Telefilms Limited v Union of India [2005] 1 SCR
913 : (2005) 4 SCC 649 - referred to.
List of Acts
Constitution of India; Societies Registration Act, 1860.
List of Keywords
Article 12; Article 226; Constitution of India; Writ jurisdiction; 'State
or authority'; 'Other authorities'; Air Force Schools; Indian Air Force
(IAF); Indian Air Force Educational and Cultural Society (IAFE&CS);
Maintainability of writ petition; Central Board of Secondary
Education (CBSE); Disciplinary proceedings; Education Code of
Air Force Schools of 2005; Ministry of Defence; Non-public fund
school; No grant from Public Funds; Control over the management;
Realm of private contract; Public law element; Public duty; Public
function; Policy decision; School Managing Committee; Command
Schools Managing Committees; Imparting education a public
function; Administrative functioning; Public funds; Public exchequer;
IAF Manual of Management and Accounting of Non-Public Funds
(IAP 3503 (COMPREHENSIVELY REVISED, 2016).
[2025] 5 S.C.R.
1149
Dileep Kumar Pandey v. Union of India & Ors.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10899
of 2013
From the Judgment and Order dated 12.07.2010 of the High Court
of Judicature at Allahabad in SA No. 1074 of 2010
With
Civil Appeal No. 11378 of 2013
Appearances for Parties
Advs. for the Appellant:
Sanjay R Hegde, Sr. Adv., Anand Singh, S. Santanam Swaminadhan,
Ms. Abhilasha Shrawat, Kartik Malhotra, Darsh Bansal, Koustubh
Abhinav Desai, Mrs. Aarthi Rajan.
Advs. for the Respondents:
Mrs. Aishwarya Bhati, A.S.G., Anant Vijay Palli, Sr. Adv.,
Ms. Shreya Jain, Ms. Manisha Chava, Ms. Ameya Vikramathanvi,
Mukesh Kumar Maroria, Ankur Talwar, Rajat Nair, Kanu Agarwal,
Ms. Sairica S Raju, Ashutosh Ghade, Shreeyash U Lalit, Anupam
Raina, Nikhil Palli, Deepak Goel, Ms. Alka Goyal, Mrs. Urvashi
Sharma, Mrs. Archana Preeti Gupta, Ms. Pankhuri Shrivastava,
Ms. Neelam Sharma, Alekshendra Sharma.
Advs. for the Intervenors:
Sanjay R Hegde, Sr. Adv., Anand Singh, S. Santanam Swaminadhan,
Ms. Abhilasha Shrawat, Kartik Malhotra, Darsh Bansal, Koustubh
Abhinav Desai, Mrs. Aarthi Rajan.
Judgment / Order of the Supreme Court
Judgment
Abhay S. Oka, J.
FACTUAL ASPECTS
1.
The issue involved in these two appeals is whether the Air Force
School, Bamrauli, in District Allahabad, is a 'state or authority' within
the meaning of Article 12 of the Constitution of India.
1150
[2025] 5 S.C.R.
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2.
Air Force Schools were established in the year 1966 for imparting
education to the children of the personnel of the Indian Air Force (IAF).
Indian Air Force Educational and Cultural Society (for short, 'the
Society') was registered under the Societies Registration Act, 1860.
It was registered on 10th November 1987. It was established to
manage Air Force Schools. The Air Force Schools at Bamrauli (for
short, 'the said school') applied for affiliation with the Central Board
of Secondary Education (CBSE) in 1985.
FACTS IN CIVIL APPEAL NO.10899 OF 2013
3.
According to the case of the appellant (Dileep Kumar Pandey) in
Civil Appeal No.10899 of 2013, pursuant to a public advertisement
and selection process conducted by the officers of the IAF, on 1st
July 2005, he was appointed as a trained graduate teacher in the
subject of physical education in the said school. According to his
case, he was appointed on probation, and the probation period was
extended from time to time. On 28th June 2007, an order was served
upon the appellant stating that he was rendered surplus as the said
school decided to appoint a more qualified teacher. An option was
given to the appellant either to remain employed in the said school
on contractual basis on a fixed salary from 1st July 2007 to May 2008
or to remain employed under the existing arrangement under which
his service would come to an end on 3rd July 2007. Therefore, the
appellant filed a writ petition before the Single Judge of the High
Court, inter alia, praying for a declaration that the appellant is a
confirmed teacher in the said school. The writ petition was allowed by
order dated 13th January 2010 by a learned Single Judge by holding
that the said school was a 'State' within the meaning of Article 12
of the Constitution of India and was amenable to the jurisdiction of
the High Court. The learned Single Judge, after setting aside the
impugned orders, observed that it will be open to the Society to
consider the claim of the appellant for confirmation in accordance
with the law. An appeal was preferred before the Division Bench
essentially on behalf of the management of the said school, which
was allowed by the impugned judgment dated 12th July 2010. The
Division Bench held that the said school was not a state within the
meaning of Article 12, and as a result, a writ petition under Article
226 could not be entertained. Hence, the judgment of the learned
Single Judge was set aside.
[2025] 5 S.C.R.
1151
Dileep Kumar Pandey v. Union of India & Ors.
FACTS IN CIVIL APPEAL NO.11378 OF 2013
4.
The appellant Sanjay Kumar Sharma was appointed as a postgraduate teacher (Commerce) on 19th June 1993 and was later on
confirmed by the Officer-in-Charge of the said school. The Officerin-Charge was an officer of the IAF. On 3rd March 2003, he was
appointed as the officiating Principal of the said school by Wing
Commander Ajay Kumar, Officer-in-Charge. According to the case of
the appellant, the 6th respondent, Smt. Shalini Kaul has started acting
as the principal without taking over charge of the post. Disciplinary
proceedings were initiated against him by the 6th respondent. Later
on, at the instigation of the 6th respondent, girl students filed a
complaint against the appellant. On the basis of various allegations,
a show cause notice dated 19th December 2005 was issued to the
appellant. On 23rd February 2006, a charge sheet was filed against
the appellant. There were two writ petitions filed by the appellant.
First was the writ petition No.12437 of 2006, wherein the appellant
sought to challenge the appointment of the 6th respondent as the
principal. Writ petition No.19915 of 2006 was filed by the appellant
for challenging the charge sheet dated 23rd February 2006. By the
order dated 5th July 2006, though the learned Single Judge held
that petitions were maintainable, it was observed that as disciplinary
proceedings were pending against the appellant, no interference
should be made.
5.
There were two special appeals preferred by the appellant for
challenging the judgment dated 5th July 2006 of the learned Single
Judge. By order dated 11th September 2006, the order of remand
was passed by the Division Bench of the High Court to the Single
Judge. Learned Single Judge by his order dated 16th September
2010 dismissed the writ petitions by relying upon the judgment
impugned in Civil Appeal No.10899 of 2013. Thereafter, the appellant
was terminated from service. A special Appeal was preferred by the
appellant against the judgment and order dated 16th September 2010
in Writ Petition No.19915 of 2006. By the impugned judgment and
order dated 2nd November 2010, the Division Bench dismissed the
appeal on the ground that the writ petition was not maintainable.
SUBMISSIONS OF THE APPELANTS
6.
The learned senior counsel appearing for the appellants submitted
that the primary function of the Air Force schools is the promotion
1152
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of education, fine arts and culture, mainly amongst the past and
present employees of the IAF, their families and children. The
learned senior counsel submitted that the documents on record
clearly show that the Air Force headquarters exercises dominant
control over the administration and functioning of the Air Force
schools. Learned senior counsel relied upon an application made
by the said school to CBSE for affiliation, in which the said school
claimed that it was fully financed by the IAF. He submitted that all Air
Force school buildings have been constructed using Public Funds
under the authorisation of the Ministry of Defence. He submitted
that the pay scales of the school staff are fixed by the Air Force
headquarters, which is the appropriate authority. The Command
Schools Management Committee has to conform to the pay scales
as issued/recommended by the Directorate of Education, Air Force
Headquarters. He also pointed out that the Command Schools
Management Committee has been constituted to run Air Force
Schools in accordance with the rules and regulations specified in
the Education Code of Air Force Schools of 2005 (for short, "the
Education Code").
7.
Inviting our attention to the findings recorded by the Division Bench
of the High Court, he submitted that the High Court had committed
an error in holding that there was no material on record to show that
the said school had been set up by using government funds and
that it was not established that the institution is not governed by any
statutory regulations. He submitted that there is enough material on
record to show that the IAF exercises deep and pervasive control
over the said school and, in fact, over all Air Force Schools. He
submitted that the IAF provides financial assistance to Air Force
Schools. He also pointed out that the Society is funded through
regimental funds and has received grant-in-aid. He pointed out that
Regimental Funds belong to the IAF.
8.
Learned senior counsel has relied upon the following decisions of
this Court: -
(i)
Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna
Jayanti Mahotsav Smarak Trust & Ors. v. V.R. Rudani & Ors.1
1
(1989) 2 SCC 691
[2025] 5 S.C.R.
1153
Dileep Kumar Pandey v. Union of India & Ors.
(ii) Pradeep Kumar Biswas v. Indian Institute of Chemical
Biology & Ors.2
(iii) Raj Soni v. Air Officer Incharge Administration & Anr.3
(iv) All India Sainik Schools Employees' Association v. Defence
Minister-cum-Chairman Board of Governors, Sainik Schools
Society, New Delhi & Ors.4 and
(v) Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors.5
9.
Learned senior counsel submitted that IAF has functional and
administrative control over the said Society and the said school.
Therefore, he submitted that Air Force Schools are "authority" within
the meaning of Article 12 of the Constitution of India and thus, are
amenable to writ jurisdiction under Article 226 of the Constitution
of India.
SUBMISSIONS OF ADDITIONAL SOLICITOR GENERAL OF INDIA
10. Learned ASG pointed out that the IAF was established in the
year 1932. Subsequently, Regimental Schools were established.
The Ministry of Defence allocated funds for establishing schools for
Air Force Officers. However, ownership and tenancy of buildings for
schools, as well as issues related to the land, remained with the
local military administration. She submitted that the Regulations for
the Air Force (hereinafter referred to as "the Regulations") define
"Non-Public Funds," which are also known as "Regimental Funds."
Learned ASG pointed out that the Regulations explain the meaning
of "Non-Public Funds Accounts". She submitted that Air Force
Schools are governed by Non-Public Funds of the Forces. She
submitted that the schools have sources of income that come from
Tuition fees, Interest, Activity fees, Admission fees, Development
fees, Computer fees, and miscellaneous fees. Learned ASG relied
upon the decision of this Court in the case of Union of India &
Anr. v. Chotelal & Ors.6. She submitted that the said decision is
2
(2002) 5 SCC 111
3
(1990) 3 SCC 261
4
(1989) Supp. 1 SCC 205
5
(1981) 1 SCC 722
6
(1999) 1 SCC 554
1154
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Supreme Court Reports
squarely applicable to the facts of the case. Learned ASG also relied
upon a decision of this Court in R.R. Pillai (Dead) through LRs.
v. Commanding Officer, Headquarters Southern Air Command
(U) and Ors.7.
11. Learned ASG submitted that the entire issue is covered against
the appellants by the decision of this Court in the case of Army
Welfare Education Society, New Delhi v. Sunil Kumar Sharma
& Ors. etc.8 She submitted that this decision relied upon the earlier
decision of this Court in the case of St.Mary's Education Society
& Anr. v. Rajendra Prasad Bhargava & Ors.9.
12. By way of rejoinder, learned counsel appearing for the appellants
submitted that the cases of Army Welfare Education Society8 and
St.Mary's Education Society & Ors.9 stand on a different footing.
He tried to distinguish the decisions in the cases of Army Welfare
Education Society8 and St.Mary's Education Society & Ors.9 and
submitted that the said decisions will not apply.
CONSIDERATION OF SUBMISSIONS
13. By the impugned judgments, the Division Bench of the Allahabad
High Court held that the Society is not a 'state' within the meaning of
Article 12 of the Constitution. We must refer to the assertions made
by the appellant in the writ petition filed before the Single Judge of
the High Court on this aspect. In the writ petition that is the subject
matter of Civil Appeal No. 10899 of 2013, in paragraphs 5 to 7, the
appellant has stated thus:
"5. That for the effective management and administration
of the Air Force School at various units, the Society has
framed an Education Code Air Force Schools 2005. The
Code aforesaid is identical to Education Code framed for
the managing to Kendriya Vidyalay.
6. That the Air Force Schools are financed by the Central
Government, through Indian Air Force School, controlled by
the officers of the Indian Air Force and the purposes is to
7
(2009) 13 SCC 311
8
2024 SCC Online SC 1683
9
(2023) 4 SCC 498
[2025] 5 S.C.R.
1155
Dileep Kumar Pandey v. Union of India & Ors.
impart education to the children of officers and employees
of the Indian Air Force. The Air Force Schools come within
the meaning of the word "State" under Article 12 of the
Constitution of India.
7. That the Air Force School, Bamrauli, Allahabad, is a
school established by the aforesaid Society and the said
school comes under the definition of "State" under Article
12 of the Constitution of India."
14. In the counter filed before the High Court, the respondents contended
that the Society is a non-profit making welfare association and the
said school is a non-public fund school. The finance is arranged
from the fees collected from students under various heads, and
the air force personnel make a contribution through their welfare
fund. It is specifically pleaded that neither in the welfare fund nor
in the school finances is any money of the Central Government
involved. Moreover, there is no control by the Central Government
or the Ministry of Defence over the running or management of
the school. While addressing the contents of paragraph 5 of the
petition, it is specifically pleaded that the Education Code issued
by the Society is not identical to the Education Code issued by
the CBSE or Kendriya Vidyalaya. It is reiterated, while dealing
with paragraph 6 of the writ petition, that the said school does
not receive any grant from any agency having a link to any of the
governments.
15. Now, we will refer to the law laid down on this aspect. Paragraphs 15
and 20 of the decision of this Court in the case of Andi Mukta
Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti
Mahotsav Smarak Trust1 read thus:
"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. But once these are absent and when
the party has no other equally convenient remedy,
mandamus cannot be denied. It has to be appreciated
that the appellants trust was managing the affiliated
college to which public money is paid as government
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Supreme Court Reports
aid. Public money paid as government aid plays a
major role in the control, maintenance and working
of educational institutions. The aided institutions like
government institutions discharge public function
by way of imparting education to students. They are
subject to the rules and regulations of the affiliating
University. Their activities are closely supervised
by the University authorities. Employment in such
institutions, therefore, is not devoid of any public
character. [ See The Evolving Indian Administrative
Law by M.P. Jain (1983), p. 226] So are the service
conditions of the academic staff. When the University
takes a decision regarding their pay scales, it will be
binding on the management. The service conditions of
the academic staff are, therefore, not purely of a private
character. It has super-added protection by University
decisions creating a legal right-duty relationship
between the staff and the management. When there
is existence of this relationship, mandamus cannot
be refused to the aggrieved party.
..
..
..
..
..
.
20. The term "authority" used in Article 226, in the
context, must receive a liberal meaning unlike the term
in Article 12. Article 12 is relevant only for the purpose
of enforcement of fundamental rights under Article 32.
Article 226 confers power on the High Courts to
issue writs for enforcement of the fundamental rights
as well as non-fundamental rights. The words "any
person or authority" used in Article 226 are, therefore,
not to be confined only to statutory authorities and
instrumentalities of the State. They may cover any
other person or body performing public duty. The
form of the body concerned is not very much relevant.
What is relevant is the nature of the duty imposed
on the body. The duty must be judged in the light of
positive obligation owed by the person or authority to
the affected party. No matter by what means the duty
[2025] 5 S.C.R.
1157
Dileep Kumar Pandey v. Union of India & Ors.
is imposed, if a positive obligation exists mandamus
cannot be denied.
(emphasis added)
16. In the case of Pradeep Kumar Biswas2, this Court dealt with the
aspect of control over the institution. This Court relied upon the
decision in the case of Ajay Hasia5. In paragraph 40, this Court
held thus:
"40. The picture that ultimately emerges is that the tests
formulated in Ajay Hasia [Ajay Hasia v. Khalid Mujib
Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258]
are not a rigid set of principles so that if a body falls within
any one of them it must, ex hypothesi, be considered to
be a State within the meaning of Article 12. The question
in each case would be - whether in the light of the
cumulative facts as established, the body is financially,
functionally and administratively dominated by or
under the control of the Government. Such control
must be particular to the body in question and must
be pervasive. If this is found then the body is a State
within Article 12. On the other hand, when the control
is merely regulatory whether under statute or otherwise,
it would not serve to make the body a State."
(emphasis added)
17. In the case of All India Sainik Schools Employees Association4,
as a matter of fact, it was found that the entire funding for running
the school was provided by the State and Central Governments.
Even the overall control was found vested in governmental authority.
18. In the case of Raj Soni3, this Court, as can be seen from paragraph
10, found that it was not necessary to decide whether or not the school
is a 'state' or 'authority' under Article 12 of the Constitution of India.
19. Now, we turn to the decision of this Court in the case of St.Mary's
Education Society9. It is true that this Court did not consider the
decision of this Court in the case of Andi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak
Trust1 of this Court. However, this Court has discussed all relevant
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principles. The principles laid down in the said decision in the case
of St.Mary's Education Society & Ors. are in paragraphs 75.1 to
75.5, which read thus:
"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 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
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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 the action was essentially of a private character."
(emphasis added)
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20. The law laid down in this decision was followed by this Court in
the case of Army Welfare Education Society8. In that case, this
Court dealt with a school taken over by the Army Welfare Education
Society, which required existing teachers to requalify under new
conditions. The High Court held that the school could not impose
service conditions to the teachers' disadvantage. In the said
decision, this Court was concerned with a case where a school
was taken over by the petitioner - the Army Welfare Education
Society. A letter was sent to the teachers in the school run by St.
Gabriel's Academy 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 thereafter, they will
have to appear and qualify written test conducted by the Army
Welfare Education Society. The teachers approached the High
Court. Learned Single Judge held that the school cannot impose
the service conditions on the teaching staff to their disadvantage.
The issue before this Court in the said case was whether the Army
Welfare Education Society was a "state" or "authority" within the
meaning of Article 12 of the Constitution. This Court found that
the Society was a purely unaided private Society established for
the purpose of imparting education to the children of the army
personnel. This Court applied the law laid down in the case of
St.Mary's Education Society & Ors.9 and held that though the
Society was imparting education, which involves public duty, the
relationship between the respondents and the Army 'Welfare
Education Society was that of an employee and private employer
arising out of a private contract. Therefore, a breach of contract
does not touch any public law element, and the school cannot
be said to be discharging any public duty in connection with the
employment of the teachers.
21. We have perused the application made to CBSE for affiliation. The
application was made on 22nd August 1985. It was in the name of
the Air Force Primary School. Although it is stated that the school
was fully financed by the IAF, there is no evidence to show that the
school was actually financed by the IAF. The Education Code, which
applies to Air Force Schools, is not a statutory code that has the
force of law. It is issued under the authority of the Chairman of the
Board of Governors of the IAF Educational and Cultural Society. It
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Dileep Kumar Pandey v. Union of India & Ors.
provides that all Air Force Schools are administered under the Society.
As per the Memorandum of Association of the Society, the members
of the Society are IAF officers who hold their posts ex-officio. The
Command Schools Managing Committees do not have control over
the day-to-day running of Air Force Schools. The day-to-day control
is with the School Managing Committee. Even if the school building
is constructed out of Public funds, there is no record to show that it
receives a grant from Public Funds. There is nothing in the Education
Code to show that the IAF has control over the said school. The
audited accounts of the school for the period from 2019-20 to 2023-24
indicate that no public funds or grants were received by the school.
Even if pay scales applicable to all IAF schools are determined by
the IAF, that by itself will not amount to pervasive control by the IAF
over the functioning of the schools.
22. It is not shown how the IAF headquarters has any control over the
management of the said school. Although some funds may have
originated from the Army Welfare Society, it cannot be said that
the State or the IAF has any control, let alone all-pervasive control,
over the school. Moreover, the said Society is not governed by any
statutory rules.
23. In the impugned judgment, the Division Bench recorded the
undisputed position that the appellants are employees of the said
school, which is not governed by any statutory regulations. The
Education Code, which applies to the said school, does not have
any statutory sanction or force. A finding of fact was recorded that
there is no material to show that the Government or the IAF has
any control over the management of the school. It is not possible
for us to take a contrary view.
24. In the circumstances, we are unable to find any fault with the view
taken by the Division Bench of the High Court. The relationship
between the appellants and the said school is in the realm of private
contract. Assuming that there was a breach of private contract, the
same does not involve any public law element.
25. Therefore, there is no merit in the appeals, and the same are
dismissed. We, however, make it clear that other remedies, if any,
of the appellants are kept open.
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Judgment
Ahsanuddin Amanullah, J.
I have had the benefit of perusing the erudite view in the judgment
penned by my senior, learned Brother Hon'ble Mr. Justice Abhay S.
Oka. With great reverence for his scholarly opinion, I am unable to
concur therewith, for reasons that follow.
2.
When there are allegation(s) of wrong-doing alleged by the appellantsteachers with regard to action taken against them by the respondentAir Force School, Bamrauli in the district of Allahabad (hereinafter
referred to as the 'School'), the moot question which is required to
be answered by us is whether the School would be amenable to writ
jurisdiction under Article 226 of the Constitution of India (hereinafter
referred to as the 'Constitution')?
3.
For convenience, Articles 12 and 226 of the Constitution are
reproduced hereinunder:
'12. Definition.-In this part, unless the context otherwise
requires, "the State" includes the Government and
Parliament of India and the Government and the Legislature
of each of the States and all local or other authorities
within the territory of India or under the control of the
Government of India.
xxx
226. Power of High Courts to issue certain writs.-(1)
Notwithstanding anything in Article 32, every High Court
shall have power, throughout the territories in relation to
which it exercises jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government,
within those territories directions, orders or writs, including
writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them,
for the enforcement of any of the rights conferred by Part
III and for any other purpose.
(2) The power conferred by clause (1) to issue directions,
orders or writs to any Government, authority or person may
also be exercised by any High Court exercising jurisdiction
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Dileep Kumar Pandey v. Union of India & Ors.
in relation to the territories within which the cause of
action, wholly or in part, arises for the exercise of such
power, notwithstanding that the seat of such Government
or authority or the residence of such person is not within
those territories.
(3) Where any party against whom an interim order, whether
by way of injunction or stay or in any other manner, is
made on, or in any proceedings relating to, a petition
under clause (1), without-
(a) furnishing to such party copies of such petition and all
documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard,
makes an application to the High Court for the vacation
of such order and furnishes a copy of such application to
the party in whose favour such order has been made or
the counsel of such party, the High Court shall dispose
of the application within a period of two weeks from the
date on which it is received or from the date on which
the copy of such application is so furnished, whichever is
later, or where the High Court is closed on the last day of
that period, before the expiry of the next day afterwards
on which the High Court is open; and if the application is
not so disposed of, the interim order shall, on the expiry
of that period, or, as the case may be, the expiry of the
said next day, stand vacated.
(4) The power conferred on a High Court by this article
shall not be in derogation of the power conferred on the
Supreme Court by clause (2) of Article 32.'
4.
I do not propose to delve into the entire factual prism and detailed
submissions advanced by the respective learned senior counsel and
learned counsel for the parties as need therefor has been obviated,
having been noted by my esteemed senior colleague. However,
some basic but unique facts require to be stated.
5.
The School was set up by the Indian Air Force (hereinafter referred
to as the 'IAF') as a welfare measure for the officers and personnel
of the IAF with regard to the education of their children/wards. Such
policy decision was taken at the highest echelons of the IAF, which
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itself took up the basic work of setting-up of the requisite infrastructure
for the School, as also providing for a mechanism to run the School,
in future, both administratively and financially. The system envisaged
was that every school will have a School Managing Committee
(hereinafter referred to as the 'Committee') of its own, which would
also comprise officers of the IAF posted at the local level. Apropos
funds, besides fee(s) charged from students, which was different
for different categories, some funds would arrive by way of aid,
either directly from the IAF unit or through various welfare funds of
the IAF, which are contributory funds by the officers and personnel
of the IAF. The School's building is on IAF land and has been built
entirely by the funds of the IAF.
6.
The next relevant factors pertinent for deciding the issue are the
nature of functions and duties discharged by the School and the
manner in which they are discharged.
7.
It is not in dispute that the school imparts education to the children
and wards, both of IAF personnel and also partly for the non-IAF
persons. This assumes significance for the reason that imparting
education has been held to be a public function as it affects the public
at large. Thus, the School discharges a public function, undoubtedly.
Further, the administrative functioning of the School, as mentioned
above, is directly under the Committee consisting of IAF personnel
posted locally. This, in the view of this Court, indicates that, ultimately,
it is the IAF which is in control of the School's management and has
the last word in the administration of the school.