JUDGMENT
Mukundakam Sharma, J.
1. As the facts and the issues raised in
these two writ petitions and the contempt petition
are similar, I propose to dispose of both the writ
petitions and the contempt petition by this common
judgment and order.
2. The petitioners in the writ petitions
were/are working as teaching and non-teaching staff
of Delhi Area Primary School (DAPS in short) at
NOIDA. The petitioners have been working in the
aforesaid capacities in the said school for
different periods. The petitioners are aggrieved
by the notices issued by the respondent
dt. 18.3.1999 intimating the petitioners that they
would be relieved from their duties that they have
been doing, w.e.f. 31.3.1999 and that they would be
paid three months salary up to 30.6.99 in lieu of
three months notice period as per the constitution
of the school. Copies of the said notices have
been placed on record. Since the contents of the
said notices are similar, I propose to take up and
examine and discuss the notice issued to the
petitioner No.1, in CWP No. 1722/99 as a measure of
convenience. In the said notice it was stated that
the petitioner No.1 was appointed as Teacher in
Delhi Area Public School at NOIDA w.e.f. 21.7.1988
on year to year contract basis and that her yearly
contract for the academic Year 1998 to 1999 stood
expired on 21.7.98 and that since the Management
Committee decided to close the school w.e.f.
1.4.199, her contract with the school would not be
renewed and that she would stand relieved from her
duties as Teacher w.e.f. 31.3.1999 and that she
would be paid three months pay up to 30.6.99 in lieu
of three months notice period as per the
constitution of the school. Similar notices were
also issued to all other petitioners and,
therefore, being aggrieved by the same, they have
preferred the present writ petition in this court.
3. So Far C.W. No. 1798/99 is concerned, the
same was filed by the parents seeking for similar
relief of a direction to the respondents to
continue to keep the concerned school functional.
As there is parity in the reliefs sought for in the
two writ petitions, they are being taken up
together for the purpose of discussion and
disposal.
4. My attention was drawn by the counsel
appearing for the petitioners to the fact that the
services of the petitioner No.1 was earlier
terminated by an order of the respondents
dt.1.9.98. The said order was challenged by the
petitioner No.1 in this court through a writ
petition, which was registered and numbered as CW
No. 5300/98. In the said writ petition, this court
considered the contents of the appointment letter
of the petitioner No.1, which provided that the
petitioner would be on probation for a period of
one year. After considering the nature and
character of the appointment of petitioner No.1 the
court framed the issue that arose for consideration
in the said writ petition. The issue that was
framed to be answered in the said writ petition was
whether the respondents in view of the letter of
appointment and Clause 41 of the constitution of
the school could summarily terminate the services
of the petitioner. After considering the nature of
the appointment of the petitioner and Clause 41 of
the constitution of the school, it was held by the
court that the action of the respondents in
terminating the services of the petitioner was
unconstitutional and illegal and she was directed to be reinstated in service on the ground that no
such termination was possible without giving a
reasonable opportunity of hearing to the
petitioner.
5. During the course of arguments in the
present writ proceedings, counsel appearing for the
respondents took up a preliminary objection to the
maintainability of the writ petition on the ground
that the society, namely, the Army Welfare
Educational Society, who manages the respondent
No.3/ school in question, is neither a State not an
authority as envisaged under Article 12 of the
Constitution of India. The aforesaid preliminary
objection raised by the respondents therefore,
falls for determination in the present proceedings.
It was contended on behalf of the respondent school
that the Army Welfare Housing Organisation, which
owns the building of the school has let out the
same to Army Welfare Educational Society to start
and administer a preparatory and primary school for
the children of the serving and retired defense
services personnel stationed at NOIDA and its
vicinity. It is also alleged in the writ petition
that the respondent No.1 allotted a fund of Rs. Six
Lacs to the society for starting and managing the
said school.
6. In the counter affidavit filed by the
respondents, it is categorically stated by the
respondents that the said school is a preparatory
school, which is totally founded and run out of the
regimental funds. It is also stated that the
Ministry of defense, Union of India, neither funds
the school in question nor otherwise exercises any
control over running/funding of the school. It is
also stated that the Ministry of defense has no
scheme under which funds can be provided to the
regimental private schools. On the basis thereof,
it was submitted that the society is neither a
State nor would come within the ambit of the
expression any other authority as envisaged under
Article 12 of the Constitution of India.
7. The constitution of the Delhi Area
Primary School is placed on record. According to
the revised constitution, which was effective from
1.4.94, the school in question is run by
Headquarters Delhi Area for the primary education of
children of serving and retired defense Service
Personnel and that it is a regimental welfare
institution. The said school has a Managing
Committee. It is also stated in the counter
affidavit filed by the respondents that the school
in question was established in 1986 as an extension
of Delhi Area Public School, Delhi Cantonment to
cater for educational needs of children of serving
and retired defense Personnels living in NOIDA and
around. Initially Delhi Area Public School had
three classes i.e. Nursery, K.G. & Class-I, which
were subsequently upgraded up to Class-IV and that
since subsequently a Full-fledged school, namely-
Army Public School was started at NOIDA in 1995
classes I to IV of DAPS were shifted to Army Public
School and, therefore, the respondent school was
left with only Nursery and preparatory classes. It
was further stated that the said school is run
totally out of regimental funds and that the school
is neither funded by the Central Government or the
State Government nor it is controlled by the
Central or State Government and, therefore, the
society is not a State within the meaning of
Article 12 of the Constitution of India. It was
also stated that over a period of years the
strength of children of defense Personnel started
decreasing in the respondent school and that
civilians came to be in majority thereby defeating
the very objective of the school and that further
keeping in mind the totality of circumstances
including decreasing strength of the defense
personnel children in the respondent school and
increasing population at Delhi Cantonment, a
considered decision was taken on 18.3.1999 by the
management committee of the respondent school to
close down the said school. It is also stated that
as per Clause 31 of the constitution of the school,
the teacher pupil ratio has to be 1:35 whereas at
the relevant time when the decision for closure of
the school in question was taken, the said ratio
was reduced to 1:18 and accordingly the school was
found not to be viable and economical. In view of
the aforesaid position and status of the school, it
is stated that a decision was taken to close down
the school and, therefore, notices were issued to
the petitioners, the legality of which are
challenged in this writ petition.
8. Mr. Sabharwal, learned counsel appearing
for the petitioners vehemently submitted that the
issue raised by the respondents regarding
maintainability of the writ petition in this court
on the ground that the society running the school
is not a State within the meaning of Article 12 of
the Constitution of India, cannot be raised in
these writ petitions as the same is barred by the
principles of res judicata/constructive res
judicata. It was also submitted that the society
which owns the school, discharges a public
function, namely, imparting of education to
children and, therefore, it is amendable to writ
jurisdiction of this court. In support of the said
contention, learned counsel relied upon the
decision of the Supreme Court in UNNI KRISHNAN
J.P. AND ORS. V. STATE OF ANDHRA PRADESH AND
ORS. . It was also
submitted by him that in the earlier writ petition
filed in this court, it having been decided that
the respondents are performing the functions of
State by imparting education and the teachers who
impart education having an element of public
interest in the performance of their duties, the
element of public interest gets attracted, and
therefore, the writ petitions are maintainable.
9. I have carefully examined the decision
rendered by this court in the earlier writ petition
filed by the petitioner No.1 herein which was
registered and numbered as CWP No. 5300/98. A
careful reading of the said decision would indicate
that the issue with the regard to maintainability of
the writ petition as such was not specifically
raised nor the said issue was decided by this court
and, therefore, in my considered opinion, the
aforesaid issue regarding maintainability of the
writ petition cannot be said to be barred by the
principle of res judicata/constructive res
judicata. The issue regarding maintainability of
the writ petitions goes to the root of the matter
and, therefore, could be raised at any stage even
if the same was not raised earlier by the
respondents. The respondents school is run by the
society. I have also extracted relevant provisions
of the constitution of the school. It cannot be
challenged that the said school is being funded out
of the regimental found. In a recent decision of
the Supreme Court in UNION OF INDIA AND ANR. V.
CHOTELAL AND ORS. ,
the nature of the regimental fund came to be
considered and decided. After discussing and
scrutinising the character of the regimental Fund,
it was held by the Supreme Court that the said fund
cannot be held to be public fund by any stretch of
imagination and a person paid out of such fund
cannot be held to be holder of civil post within
the Ministry of defense. In the said decision the
Supreme Court noticed some provisions of the
defense Services Regulations, which give an idea as
to the characteristic of the regimental fund. The
court considered Regulation 801 (a) of the said
regulations wherein public funds have been defined
as follows:
801(a) Public Funds- Include all funds
which are financed entirely from
public money, the unexpended
balances of which are refundable
to Government in the event of not
being devoted of the objects for
which granted, and also
(i) unissued pay and allowances;
(ii) Office allowance fund; and
(iii) the estates of deceased men and
deserters.”
10. The Supreme Court also considered
Regulation 801(b), which defines ‘Regulation Fund’
to mean comprising all funds, other than pubic
funds maintained by a Unit. Regulation 820 of the
said Regulations was also considered by the Supreme
Court, which provides for administration of such
Regimental Fund. Regulation 820(a) clearly
indicates that all funds other than public fund as
defined in Para 801 maintained by a unit, are
financed either wholly or partly from public money.
The Regulation further provides that the Commanding
Officer acts as a trustee in relation to the
‘Regimental Fund’ and is responsible that the funds
are properly applied with special reference to the
object of the fund and for the benefit of the
personnel or unit as a whole. After examining the
said provisions, the Supreme Court held that the
said fund, therefore, cannot be held to be public
fund by any stretch of imagination and the ‘Dhobis’
paid out of such fund cannot be held to be holders
of civil post. It is, thus, conclusively laid down
by the Supreme Court that the ‘Regimental Fund’ is
not a public fund and, therefore, the school run by
a society out of regimental fund cannot be said to
be discharging public functions.
11. In TEJRAM PARASHRAMJI BOMBHATE AND ORS.
V. ORDNANCE FACtorY, AMBAZARI, NAGPUR AND ORS.
reported in 1991 SCC (L&S) 810, the Supreme Court
held that there is no relationship of master and
servant between the Central Government and the
teachers, who were employed in the Secondary School
by local arrangement made by the officers of the
further held that the Administrative Tribunal could
not have issued a direction to compel the Central
Government to assess the need of the school and
create necessary posts in the school as the same is
a policy matter involving financial burden.
Reference may also be made to the decision in
MRS. ASHA KHOSA V. CHAIRMAN, ARMY PUBLIC SCHOOL,
NORTHERN COMMAND & ORS. reported in MLJ 1997 J&K
71. In the said decision rendered by a Division
Bench of the Jammu & Kashmir High Court, it was
held that insofar as the Army Public School,
Udhampur is concerned, neither the funding is by
the Government of India or by the State Government,
nor the authority is controlled by the Central
Government or by the State Government and,
therefore, it cannot be said to be a State within
the meaning of Article 12 of the Constitution of
India nor the Rules called the Army Welfare
Education Society Rules can be said to be statutory
in nature and, therefore, the said society is not
amenable to the writ jurisdiction under Article 12
of the Constitution of India.
12. On examination of the records placed
before me, to which reference has been made
hereinabove and the various decisions relied upon
by the counsel appearing for the parties, I am of
the considered opinion that the Society who is
managing and running the respondent school out of
Regimental Fund would not come within the ambit of
the expression ‘State’ or any other authority as
envisaged under Article 12 of the Constitution of
India. The school in question is managed out of
the Regimental Fund, which is not a public fund and
the said school is managed by a society registered
under the Societies Registration Act. The same is
neither controlled nor managed by the Government of
India or by the State Government nor he society
receives any fund from the said Governments. The
school in question is a primary school at at the
time when the decision for closure of the school
was taken it had only the preparatory classes going
on in the school. The rest of the classes were
shifted to Army Public Schoo, which was started at
NOIDA. At the time when the aforesaid notices were
issued, there were only two classes and at that
stage the ratio of teachers and students was 1:15
whereas in the constitution of the school, the
ratio between the teacher and the students was
required to be 1:35. When a conscious decision has
been taken by the respondent society to close the
school, on the ground of non-viability of the
school on financial reasons the same is a decision
concerning policy matter involving financial
implications. The society was running the school
from a premises taken on lease from respondent No.1
and the said lease stands cancelled. The society,
in view of the changed circumstances, decided to
close the school but the services of the
petitioners are being continued in the light of the
interim order passed by this court. In view of the
aforesaid position, could this court direct the
respondents to continue to run the school, which
would necessarily involve financial burden? The
answer has to be in the negative in view of the
position settled by the Supreme Court particularly
in the decision of Tejram Parashramji Bombhate
(supra).
13. Therefore, in the light of the discussion
aforesaid, I hold that neither the writ petitions
filed by the petitioners are maintainable nor any
direction could be issued to the respondents not to
release the petitioners from their services as the
same would necessarily mean and would amount to a
direction to continue to make the school functional
inspite of financial constraint and non-viability
of the school. Such a direction also cannot be
issued as the same would also amount to interfering
with the policy matter of the respondent involving
financial burden. In the light of the aforesaid
discussion, I find no merit in the writ petitions
and they are dismissed.
14. In the second writ petition being CWP
No.1798/99, which is also dismissed and which was
filed by the parents, none appeared to press the
said petition at the time of arguments. The
students, on whose behalf the said writ petition
was filed by their parents, have already joined
other schools and, therefore, nothing survives in
the said writ petition. In view of dismissal of
the writ petitions and also upon examination of he
allegation made in the contempt petition, I find no
merit in the contempt petition also and the same
stands dismissed. However, before parting with the
records of the case, I would like to observe that
some of the petitioners have worked in the
respondent school for number of years and,
therefore, the services of the petitioners could be
appropriately utilised by the respondents in
appropriate places. Therefore, if and when
appropriate vacancy arises in any school of the
present society or any other school or any sister
concern of the respondent society, the cases of the
petitioners shall be considered and they would be
suitably accommodated in any such school in
accordance with law.