RAJNI SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) R. A. Sharma, J. Petitioner, who was a teacher in Army School (here inafter referred to as the school) situate at Clement Town, Dshradun, which has been established and is managed by the Army Welfare Education Society (hereinafter referred to as the Society), has filed this writ petition challenging the termination of her service. Respondents have filed counter-affidavit and the petitioner has filed rejoinder-affidavit in reply thereto. I have heard learned counsel for parties.

(2.) SOCIETY has been registered under Societies Registration Act. Its aims and objects, as contained in the bye-laws, a copy of which has been filed as annexure-1 to the rejoinder affidavit, so far as they are relevant for the present case, are as under : " (a) To create or augment educational facilities at Military Stations to meet the needs of children of Army personnel. (b) To develop co-educational Army Schools and Army Public Schools in such a manner as to impart high standard of education to the children of Army personnel without distinction of their status, (c) To prepare the students for All-India Secondary School and All India Senior School Certificate (10+ 2 stage) examinations of the Central Board of Secondary Education with a common syllabi enabling the children of personnel who are transferred to be admit ted in mid session. (d) To promote development of academic excellence discipline, personal character, high sense of values and national integration among the children of Army personnel. " Chapter 2 of the bye-laws provides for organisations and function of the SOCIETY, according to which the SOCIETY has been registered' "for the purposes of establishing and running Army Schools at stations recommended by command", Board of Governors of the SOCIETY consists of army officials which is clear from the Bye-law 6 of Chapter 2, which is reproduced below : "6. Board of Governors.-Board of Governors is the Governing Body which would lay down policy guidelines for the management and functioning of the schools. The Governing Body shall consist of the under-mentioned officers and any other person (s) nominated by the Chairman or elected by the Governing Body :- Chairman. . Adjutant General Vice-Chairman. . Director-General, Discipline and Ceremonials Welfare. Members. . Major Generals Administration, H. O. Eastern, Western and Northern Com mands and Brigadiers 'a', HO Southern and Central Commands. Deputy Quartermaster General Addition al Director-General, Ceremonials and Welt are. Additional Director General Military Training (Army Education ). Judge Advocate General. Deputy Director-General (Welfare) Member Secretary. . Secretary, Army Welfare Education SOCIETY (AWES ). Bye-law 11 of the same Chapter lays down constitution of the Executive Committee, which is to assist the Board of Management and to carry out day to day working. Its extract is as follows : President. . Director-General, Discipline and Ceremonials Welfare. Members. . Additional Director General, Ceremonials and Welfare. Deputy Director-General (Welfare ). Member Secretary. . Secretary, Army Welfare Education SOCIETY (AWES ). Note 1.-Members of the Board of Governors and the Executive Com mittee will be co-terminus with their respective officers. " Bye-laws 13 and 14, which deal with financial management being relevant are also. reproduced below: 13. Financial Management.-Corpus to the Schools will be provided as decided by the Board of Governors from the Welfare Funds of the Adjutant General's Branch, Army Headquarters. Recurring expenditure and other expenses of Schools will be managed by the Board of Administration and the Managing Committee of the respective Schools. Audit.-Additional Director General, Ceremonials and Welfare and Deputy Director-General (Welfare at the Army Headquarters will jointly operate the bank accounts of the SOCIETY. Tie accounts of the SOCIETY will be audited annually by a firm of Charactered Accountants, the Accounting year being from 10 April to 21 March of the following year (Financial year ). Chapter 3 of the Bye-laws provides for Schools Managing Committee and selection of the staff. Such a Managing Committee, according to Bye-law 31 is to consist of : "patron. . As nominated by Headquarters Command concerned. Chairman. . As nominated by the Patron or GOO Div. or Area or Sub-area Commander or Station Commander. Members. . GSO 1 or AAG or Staff Officer CWB or GE. OC Military Hospital or Medical Officer. Two Parents of students in the School. Two teachers of the School. Two educationists. Secretary. . Principal Army Educational Corps Officers could be nominated as educationists members of the School Managing Committee in case of those Army Schools which were located in remote/field areas. The same set of AEC Officers may be appointed on more than one Army Schools also. However, this provision will not be applicable to Army Schools located in cities/town. " It is thus apparent that the SOCIETY has been registered with an object to run the schools for providing educational facilities at Military Stations to meet the needs of the children of the army personnel. The over all control of the SOCIETY and the school run by it vests in the Board of Governors and the Executive Committee, consisting of army officials. The School Managing Committee also consists of army officials. Thus the administrative control of the Schools vests in the governmental authorities. The SOCIETY and its Schools are financed by Welfare funds of the Adjutant Generals Branch Army Head quarters. The management of the School is also entitled to collect the fee and the donations, but this does not change the character of the SOCIETY or the School run by it. Both administrative and financial control of the Army over the SOCIETY and the School is almost total. The SOCIETY satisfies the tests laid down by the Supreme Court in Ajay Hasia v. Khalik Mujtb Suhravardi, AIR 1981 SC 487 and Ramana Dayaram Shetty v. International Air Port Authority, AIR 1979 SC 1628, for determining as to whether it is a 'state' within the meaning of Article 12 of the Constitution of India. Applying those tests Supreme Court in All-India Sainik Schools Employees Association v. Defence Minister-cum-Chairman, AIR 1989 SC 88, has declared Sainik School as the "state". In the instant case also those tests are satisfied: The SOCIETY and the Schools run by it are "state" within the meaning of Article 12 of the Con stitution, and thus amenable to writ jurisdiction of this Court.

(3.) LEARNED counsel for the petitioner has challenged this order on two grounds ; viz (i) the petitioner is Primary teacher and is riot teacher of K. G. and nursery sections of the School and as such, on the abolition of those classes, her services could not have been terminated ; and (ii) she has been removed from service without giving reasonable opportunity of being heard.