1.Sri Alok Mathur, learned counsel for the respondents raised preliminary objection to the maintainability of writ petition on the ground that Army Public School is not 'State' within the definition of Article 12 of the Constitution of India. He referred to a decision of Division Bench of this Court given in the case of Army School, Kunraghat, Gorakhpur Vs. Smt. Shilpi Paul [2005(2) LBESR 457 (All)]. In Para 18 of the judgment it has been held that Army School is not 'State' under Article 12 of the Constitution of India, hence writ petition itself was not maintainable.
2.A reference has been made to the decision of Hon'ble Apex Court dismissing the SLP directed against the order of Hon'ble Jammu & Kashmir High Court wherein similar question was raised. In para 22 of the judgment, Division Bench of J & K observed that Army Welfare Education Society is not an instrumentality of the State under Article 12 of the Constitution.
3.In reply to the above submission, Sri Vijay Dixit, learned counsel for petitioner placed reliance upon the judgment of Hon'ble Supreme Court given in Civil Appeal No. 7355 of 2008 directed against the order passed by Division Bench of Uttarachal High Court. It was a case of Army Public School, challenging the order of termination in Writ Petition No. 398 of 2004(S/B) (Km. Vimi Joshi Vs. Chairman School Managing Committee and others) in which Court had granted interim order which was challenged in Special Leave Petition. Hon'ble Apex Court dismissed the appeal holding that Army Public Service School was a public enterprise. Apex Court further directed to decide the writ petition. Ultimately writ petition was allowed.
4.Reliance has been placed before this Court upon the decision of Hon'ble Apex Court given in the case of Ramesh Ahluwalia Vs. State of Punjab and others [(2012) 12 SCC 331]. Para 12 and para 14 of the judgment of Ramesh Ahluwalia are quoted below:
(12) We have considered the submissions made by the learned counsel for the parties. In our opinion, in view of the judgment rendered by this Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust there can be no doubt that even a purely private body, where the State has no control over its internal affairs, would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution, for issuance of a writ of mandamus. Provided, of course, the private body is performing public functions which are normally expected to be performed by the State authorities.
(14) In view of the law laid down in the aforesaid judgments of this Court, the judgment of the learned Single Judge as also the Division Bench of the High Court cannot be sustained on the proposition that the writ petition would not be maintainable merely because the respondent institution is a purely unaided private educational institution."
5.Furthermore, learned counsel has placed reliance on the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others Vs. V.R. Rudani and others [(1989) 2 SCC 691] wherein Court has observed that writ petition cannot be said to be not maintainable merely because respondent institution is purely unaided private educational institution.
6.Learned counsel has relied upon another decision of Hon'ble Delhi High Court rendered in the case of Smt. Swapna Sood Vs. Directorate of Education and others [WP(C) 4412 of 2005]. Relevant portion of the referred judgment is as under:-
"I also do not find any force in the arguments of the counsel for respondent No.2 that respondents No.2 and 3 being not the State, the writ petition under Article 226 of the Constitution of India is not maintainable. Admittedly, respondents No.2 and 3 are discharging important public functions, namely, imparting education to the children, therefore, to that extent the respondents are performing the functions of the State and recruitment of teachers to achieve the said object is also in discharge of the public function by respondents No.2 and 3. The teachers who impart education have an element of public interest in the performance of their duties."
7.Supreme Court in the case of (2005) 4 SCC 649 entitled Zee Telefilms Ltd. and Anr. vs Union of India & Others has held that in such matters writ is maintainable. It will be relevant to reproduce the following paragraphs from the judgment :
"31. Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32.
32. This Court in the case of Andi Mukta Sadguru Shree muktajee Vandas Swami Swarna jayanti Mahotsav Smarak Trust vs. V.R. Rudani has held:
"Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to ,,any person or authority‟. The term ,,authority‟ used in the context, must receive a liberal meaning unlike the term in Article 12 which 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."
8.In the case of Shalu Kataria Vs. Director of Education and others [WP(C) No. 4277 of 2010], the facts were identical as aforesaid writ petition was allowed by High Court of Delhi. Hon'ble Apex Court dismissed SLP. It was a case of Army School.
9.There is another decision of Uttarakhand High Court given in the case of Trilochan Singh Vs. Committee of Management, Army School, Hempur and others (Special Appeal No. 371 of 2012), wherein Bench observes that :
"society and the schools established by the society are directly and substantially part of the Indian Army and, accordingly, it cannot be said that the society and its schools are not authority within the meaning of Article 12 of the Constitution of India."
10.Taking note to Right of Children to Free & compulsory Education Act, 2009 (Act 35/2009) as well as amended Article 21-A of the Constitution of India, a Division Bench of this Court in the case of Shreyaskar Tripathi Vs. State of U.P. and Others (Special Appeal No. 1501 of 2007) decided on 26.11.2010 has observed that writ petition under Article 226 of the Constitution of India can be filed keeping in view that private body is discharging public duty or public obligations of public nature. Relevant part of para 32 is reproduced below:
"32 A writ petition under Art.226 of the Constitution is maintainable against the State, and authorities exercising powers of the State, statutory body, and instrumentality or agency of the state, a company financed and owned by the State, private body run substantially on State funding, a private body discharging public duty or public obligations of public nature and person or a body under liability to discharge any function under any statute, to compel it to perform statutory functions. A writ of mandamus may also be issued to any person or authority performing public duty owing positive obligation to the affected party. The Supreme Court as long back as in 1976 in Executive Committee of Vaish Degree College, Shamli & Ors. Vs. Laxmi Narain & Ors., (1976) 2 SCC 58, held that writ petition is maintainable against the Committee of Management of a society running an educational institution discharging statutory duties."
11.Army Public School affiliated with Central Board of Secondary Education has to perform functions according to the provisions of the Act, instructions and regulations framed by the CBSE. Army Public School is imparting education from class I to class XII which is a public function. Since public duty has been imposed by the Act 35 of 2009 in view of Article 21A of the Constitution of India, a writ is certainly maintainable.
12.It is contended that Army Public School receives grants from the Welfare Fund of the Adjutant Generals Branch, Integrated Head Quarters of Ministry of Defence (Army). In view of various decisions quoted above question of funding now does not remain significant.
13.Division Bench decision in the case of Army Public School Vs. Shilpi Paul was given in 2005, much before the enactment of Act 35 of 2009 which has made all such schools amenable to writ jurisdiction as observed by division bench of this Court in the case of Shreyaskar Tripathi. Para 33 of the judgment of division bench of this Court given in the case of Shreyaskar Tripathi (supra) reads as under:
"33. We find substance in the submission of Shri Ashok Khare that the learned Single Judge did not appreciate that the educational institutions recognised under the U.P. Intermediate Education Act, even if it is unaided, has to carry out several statutory functions. The teachers of such institutions have statutory conditions of service prescribed under Government Order dated 10th August, 2001 issued in exercise of power under Section 7AA (3) of the Act. Now by the enforcement of Art.21A of the Constitution of India by the Right of Children to Free and Compulsory Education Act, 2009, all the schools including unaided schools are under statutory obligation to provide education to children. It is thus difficult to accept the submission that writs under Art.226 of the Constitution of India cannot be issued to such institutions. The opinion expressed by learned Single Judge, is contrary to law and is unacceptable."
14.Division Bench of Uttaranchal High Court in Writ Petition No.398 of 2004 (SB), Km. Vimi Joshi Vs. Chairman, School Managing Committee and others, speaking through Hon'ble Barin Ghosh, CJ has observed as under in para (9) :
"In paragraph-20 of the judgment of Hon'ble Supreme Court, referred above, the Hon'ble Supreme Court, in no uncertain terms, has held that the School is a 'Public Enterprise'. In view of such pronouncement of the Hon'ble Supreme Court, we hold that the School is an Authority within the meaning of Article 12 of the Constitution of India and, accordingly, is answerable for each of its actions, which is tainted.
15.In view of the authoritative pronouncements of Hon'ble Supreme Court, enactment of Act 35 of 2009 and division bench judgment of this Court given in the case of Shreyaskar Tripathi, there is no need to refer the decision of Shilpi Paul to a larger Bench.
16.Reliance has also been placed upon the judgment of Madhya Pradesh High Court given in writ petition filed by Nazma Arif Vs. Managing Committee, Army School, Sagar Cantonment and others [2005(106) FLR111]. It was mentioned in the judgment that the school is affiliated to the Central Board of Secondary Education and has been established by the Army Personnel Welfare Society, Lucknow. The institution is receiving, cent percent grant-in-aid from the Central Government (Defence Budget). Court quashed the order of termination and ordered reinstatement.
17.Rajasthan and Punjab High Court have also taken the similar view.
18.Settled position appears to be that writ petition filed against Army Public School is maintainable.
19.There is no reason why a restricted view regarding prerogatives of High Court contemplated by Article 226 of the Constitution of India be taken.
20.Thus, there is no difficulty in holding that Army Public School is certainly amenable to writ jurisdiction of this Court. Consequently, preliminary objection is overruled.
21.Sri Alok Mathur, counsel for the respondents is directed to file counter affidavit within three weeks. List thereafter.
Order Date :- 21.4.2014 kkv/