DHARMENDRA Vs. STATE OF M.P.

JUDGEMENT

(1.) Challenge in the present petition is made to an order dtd. 27/8/2024 (Annexure P/8) passed by the respondent No.3 whereby the petitioner has been reverted to the lower post of Regular Primary Teacher from the post of Headmistress at Air Force School, Amla.

(2.) Learned counsel appearing for the respondents has raised a preliminary objection with respect to maintainability of the writ petition pointing out the fact that all the Air Force Schools are non-governmental non-profit making welfare institutions registered and administered under the aegis of the Society i.e. the Indian Air Force Educational and Cultural Society. They are neither controlled by the Central Government nor the Central Government provide any financial assistance to the Air Force Schools. Therefore, the writ petition against a private entity is not maintainable as it does not fall under the definition of "State" under Article 12 of the Constitution of India. He has further brought to the notice of this court an order passed by the Hon'ble Supreme Court in case of Army Welfare Education Society, New Delhi vs. Sunil Kumar Sharma and others (Civil Appeal Nos.7256-7259 of 2024 arising out of S.L.P. (Civil) Nos.3138-3141 of 2021) wherein vide order dtd. 9/7/2021 the Hon'ble Supreme Court has held that Army Welfare Educational Society running the schools do not fall under definition of "State" within Article 12 of the Constitution of India and the same does not touch any public law element, therefore, the writ petition is not maintainable. Similar view was taken in W.P.No.1415 of 1996 ( Mrs. Asha Khosa vs. Chairman, Army Public School and others) decided on 17/2/1997 by the Division Bench of the Jammu and Kashmir High Court. He has further brought to the notice of this Court an order passed in the case of J. Tiwari v. Jawala Devi Vidya Mandir, (1979) 4 SCC 160 wherein it was held that rights and obligations of an employee of a private institution are governed by the terms of the contract between the parties. Therefore, the writ petition before this Court is not maintainable. He has also brought to the notice of this Court a judgment passed in the case of Som Nath and others vs. Deputy Registrar Cooperative Society, Hoshiyarpur and others wherein also the writ petition was held to be not maintainable. He has further relied upon a judgment in the case of Union of India and others vs. Dileep Kumar Pandey (Special Appeal No.1074 of 2010) dtd. 12/7/2010, which has dealt with the similar situation and after a detailed order, it was held by the Hon'ble Supreme Court that the writ petition is not maintainable against a private entity. The society running the school in question was the same in the aforesaid judgment. Therefore, the present writ petition is not maintainable and is liable to be dismissed.

(3.) Per contra, learned counsel for the petitioner has vehemently opposed the contentions, it is argued that the judgment passed by the Hon'ble Supreme Court in the case of Army Welfare Education Society, New Delhi (supra) is based upon a judgment passed by the Hon'ble Supreme Court in the case of St. Mary's Education Society and another vs. Rajendra Prasad Bhargava and others reported in (2023) 4 SCC 498. The petitioner is in service of the respondent/Department. The Central Government is provided land for construction of buildings and other infrastructures. He has placed on record the Education Code 2020, which specifically deal with the norms for recruitment and service conditions, pay allowances and other benefits etc. It is also pointed out that the Government of India have provided the funds for constructions of permanent building of Air Force Schools from public funds. Annual inspection of the Air Force Schools are being carried out by Secretary of CSMC. The primary aim of the Indian Air Force Education and Cultural Society running the schools is imparting education to the students and it is a non-profit making welfare institution working for promotion of education and instructions, diffusion of useful knowledge and promotion of science, literature, fine arts and culture mainly amongst the past and present employees of the Indian Air Force, their children and families. The same was established with the help of the Central Government. Clause 8 deals with composition of the Governing body. The composition of the Governing body itself shows that it is under the total control of the Government as the maximum members of the Governing body are the employees of the Central Government as they are teachers and are imparting education to the students in the respondent/institution. As a public law element is involved in the matter and, therefore, the writ petition is maintainable. He has relied upon a judgment in the case of Vinita Nair and others vs. Union of India, through Secretary, Department of School Education & Literacy and others reported in 2022 Supreme (MP) 1659 wherein under similar circumstances and after considering the judgment passed in the case of St. Mary Education Society vs. Rajendra Prasad Bhargava (Civil Appeal No.5789 of 2022) reported in 2022 SCC OnLine SC 1091, the coordinate Bench has held the petition to be maintainable considering that a public law element is involved in the matter. He has further relied upon a judgment in the case of Kirti Bagde vs. State of M.p. and others , 2016 Supreme (MP) 626. It is argued the Hon'ble Supreme Court in the case of Shri Anadi Mukta Sadrugu Shree Muktajee Vandasjiswami Suvama Jayanti Mahotsav Smarak Trust vs. V.R. Rudani, (1989) 2 SCC 691 has categorically held that if a public law element is involved, then a writ petition under Article 226 of the Constitution of India can be held to be maintainable. The term 'authority' is to be given a liberal meaning for the purpose of enforcement of the fundamental rights and if there is a violation of the fundamental rights of a person or body performing the public duty, then the High Courts are having wide powers under Article 226 of the Constitution of India to issue mandamus. Under these circumstances, a petition under Article 226 of the Constitution of India is maintainable. It is pointed out that the form of the body concerned is not having much relevance. What is relevant, is the natural 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. It is argued that schools which are being permitted to be run by either the Central Board of Secondary Education or ICSE and once the permission has been granted by the Government body to run the school in question, then they are under the control of the Government.