{"id":252265,"date":"2001-11-07T00:00:00","date_gmt":"2001-11-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/asha-vij-and-ors-vs-the-chief-of-the-army-staff-and-ors-on-7-november-2001"},"modified":"2015-12-02T09:49:37","modified_gmt":"2015-12-02T04:19:37","slug":"asha-vij-and-ors-vs-the-chief-of-the-army-staff-and-ors-on-7-november-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/asha-vij-and-ors-vs-the-chief-of-the-army-staff-and-ors-on-7-november-2001","title":{"rendered":"Asha Vij And Ors. vs The Chief Of The Army Staff And Ors. on 7 November, 2001"},"content":{"rendered":"
Delhi High Court<\/div>\n
Asha Vij And Ors. vs The Chief Of The Army Staff And Ors. on 7 November, 2001<\/div>\n
Equivalent citations: 2002 VIAD Delhi 109<\/div>\n
Author: M Sharma<\/div>\n
Bench: M Sharma<\/div>\n

JUDGMENT<\/p>\n

Mukundakam Sharma, J.\n<\/p>\n

1. As the facts and the issues raised in
\nthese two writ petitions and the contempt petition
\nare similar, I propose to dispose of both the writ
\npetitions and the contempt petition by this common
\njudgment and order.\n<\/p>\n

2. The petitioners in the writ petitions
\nwere\/are working as teaching and non-teaching staff
\nof Delhi Area Primary School (DAPS in short) at
\nNOIDA. The petitioners have been working in the
\naforesaid capacities in the said school for
\ndifferent periods. The petitioners are aggrieved
\nby the notices issued by the respondent
\ndt. 18.3.1999 intimating the petitioners that they
\nwould be relieved from their duties that they have
\nbeen doing, w.e.f. 31.3.1999 and that they would be
\npaid three months salary up to 30.6.99 in lieu of
\nthree months notice period as per the constitution
\nof the school. Copies of the said notices have
\nbeen placed on record. Since the contents of the
\nsaid notices are similar, I propose to take up and
\nexamine and discuss the notice issued to the
\npetitioner No.1, in CWP No. 1722\/99 as a measure of
\nconvenience. In the said notice it was stated that
\nthe petitioner No.1 was appointed as Teacher in
\nDelhi Area Public School at NOIDA w.e.f. 21.7.1988
\non year to year contract basis and that her yearly
\ncontract for the academic Year 1998 to 1999 stood
\nexpired on 21.7.98 and that since the Management
\nCommittee decided to close the school w.e.f.
\n1.4.199, her contract with the school would not be
\nrenewed and that she would stand relieved from her
\nduties as Teacher w.e.f. 31.3.1999 and that she
\nwould be paid three months pay up to 30.6.99 in lieu
\nof three months notice period as per the
\nconstitution of the school. Similar notices were
\nalso issued to all other petitioners and,
\ntherefore, being aggrieved by the same, they have
\npreferred the present writ petition in this court.\n<\/p>\n

3. So Far C.W. No. 1798\/99 is concerned, the
\nsame was filed by the parents seeking for similar
\nrelief of a direction to the respondents to
\ncontinue to keep the concerned school functional.
\nAs there is parity in the reliefs sought for in the
\ntwo writ petitions, they are being taken up
\ntogether for the purpose of discussion and
\ndisposal.\n<\/p>\n

4. My attention was drawn by the counsel
\nappearing for the petitioners to the fact that the
\nservices of the petitioner No.1 was earlier
\nterminated by an order of the respondents
\ndt.1.9.98. The said order was challenged by the
\npetitioner No.1 in this court through a writ
\npetition, which was registered and numbered as CW
\nNo. 5300\/98. In the said writ petition, this court
\nconsidered the contents of the appointment letter
\nof the petitioner No.1, which provided that the
\npetitioner would be on probation for a period of
\none year. After considering the nature and
\ncharacter of the appointment of petitioner No.1 the
\ncourt framed the issue that arose for consideration
\nin the said writ petition. The issue that was
\nframed to be answered in the said writ petition was
\nwhether the respondents in view of the letter of
\nappointment and Clause 41 of the constitution of
\nthe school could summarily terminate the services
\nof the petitioner. After considering the nature of
\nthe appointment of the petitioner and Clause 41 of
\nthe constitution of the school, it was held by the
\ncourt that the action of the respondents in
\nterminating the services of the petitioner was
\nunconstitutional and illegal and she was directed to be reinstated in service on the ground that no
\nsuch termination was possible without giving a
\nreasonable opportunity of hearing to the
\npetitioner.\n<\/p>\n

5. During the course of arguments in the
\npresent writ proceedings, counsel appearing for the
\nrespondents took up a preliminary objection to the
\nmaintainability of the writ petition on the ground
\nthat the society, namely, the Army Welfare
\nEducational Society, who manages the respondent
\nNo.3\/ school in question, is neither a State not an
\nauthority as envisaged under Article 12<\/a> of the
\nConstitution of India. The aforesaid preliminary
\nobjection raised by the respondents therefore,
\nfalls for determination in the present proceedings.
\nIt was contended on behalf of the respondent school
\nthat the Army Welfare Housing Organisation, which
\nowns the building of the school has let out the
\nsame to Army Welfare Educational Society to start
\nand administer a preparatory and primary school for
\nthe children of the serving and retired defense
\nservices personnel stationed at NOIDA and its
\nvicinity. It is also alleged in the writ petition
\nthat the respondent No.1 allotted a fund of Rs. Six
\nLacs to the society for starting and managing the
\nsaid school.\n<\/p>\n

6. In the counter affidavit filed by the
\nrespondents, it is categorically stated by the
\nrespondents that the said school is a preparatory
\nschool, which is totally founded and run out of the
\nregimental funds. It is also stated that the
\nMinistry of defense, Union of India, neither funds
\nthe school in question nor otherwise exercises any
\ncontrol over running\/funding of the school. It is
\nalso stated that the Ministry of defense has no
\nscheme under which funds can be provided to the
\nregimental private schools. On the basis thereof,
\nit was submitted that the society is neither a
\nState nor would come within the ambit of the
\nexpression any other authority as envisaged under
\nArticle 12<\/a> of the Constitution of India.\n<\/p>\n

7. The constitution of the Delhi Area
\nPrimary School is placed on record. According to
\nthe revised constitution, which was effective from
\n1.4.94, the school in question is run by
\nHeadquarters Delhi Area for the primary education of
\nchildren of serving and retired defense Service
\nPersonnel and that it is a regimental welfare
\ninstitution. The said school has a Managing
\nCommittee. It is also stated in the counter
\naffidavit filed by the respondents that the school
\nin question was established in 1986 as an extension
\nof Delhi Area Public School, Delhi Cantonment to
\ncater for educational needs of children of serving
\nand retired defense Personnels living in NOIDA and
\naround. Initially Delhi Area Public School had
\nthree classes i.e. Nursery, K.G. & Class-I, which
\nwere subsequently upgraded up to Class-IV and that
\nsince subsequently a Full-fledged school, namely-
\nArmy Public School was started at NOIDA in 1995
\nclasses I to IV of DAPS were shifted to Army Public
\nSchool and, therefore, the respondent school was
\nleft with only Nursery and preparatory classes. It
\nwas further stated that the said school is run
\ntotally out of regimental funds and that the school
\nis neither funded by the Central Government or the
\nState Government nor it is controlled by the
\nCentral or State Government and, therefore, the
\nsociety is not a State within the meaning of
\nArticle 12<\/a> of the Constitution of India. It was
\nalso stated that over a period of years the
\nstrength of children of defense Personnel started
\ndecreasing in the respondent school and that
\ncivilians came to be in majority thereby defeating
\nthe very objective of the school and that further
\nkeeping in mind the totality of circumstances
\nincluding decreasing strength of the defense
\npersonnel children in the respondent school and
\nincreasing population at Delhi Cantonment, a
\nconsidered decision was taken on 18.3.1999 by the
\nmanagement committee of the respondent school to
\nclose down the said school. It is also stated that
\nas per Clause 31 of the constitution of the school,
\nthe teacher pupil ratio has to be 1:35 whereas at
\nthe relevant time when the decision for closure of
\nthe school in question was taken, the said ratio
\nwas reduced to 1:18 and accordingly the school was
\nfound not to be viable and economical. In view of
\nthe aforesaid position and status of the school, it
\nis stated that a decision was taken to close down
\nthe school and, therefore, notices were issued to
\nthe petitioners, the legality of which are
\nchallenged in this writ petition.\n<\/p>\n

8. Mr. Sabharwal, learned counsel appearing
\nfor the petitioners vehemently submitted that the
\nissue raised by the respondents regarding
\nmaintainability of the writ petition in this court
\non the ground that the society running the school
\nis not a State within the meaning of Article 12<\/a> of
\nthe Constitution of India, cannot be raised in
\nthese writ petitions as the same is barred by the
\nprinciples of res judicata\/constructive res
\njudicata. It was also submitted that the society
\nwhich owns the school, discharges a public
\nfunction, namely, imparting of education to
\nchildren and, therefore, it is amendable to writ
\njurisdiction of this court. In support of the said
\ncontention, learned counsel relied upon the
\ndecision of the Supreme Court in UNNI KRISHNAN
\nJ.P. AND ORS. V. STATE OF ANDHRA PRADESH AND
\nORS<\/a>. . It was also
\nsubmitted by him that in the earlier writ petition
\nfiled in this court, it having been decided that
\nthe respondents are performing the functions of
\nState by imparting education and the teachers who
\nimpart education having an element of public
\ninterest in the performance of their duties, the
\nelement of public interest gets attracted, and
\ntherefore, the writ petitions are maintainable.\n<\/p>\n

9. I have carefully examined the decision
\nrendered by this court in the earlier writ petition
\nfiled by the petitioner No.1 herein which was
\nregistered and numbered as CWP No. 5300\/98. A
\ncareful reading of the said decision would indicate
\nthat the issue with the regard to maintainability of
\nthe writ petition as such was not specifically
\nraised nor the said issue was decided by this court
\nand, therefore, in my considered opinion, the
\naforesaid issue regarding maintainability of the
\nwrit petition cannot be said to be barred by the
\nprinciple of res judicata\/constructive res
\njudicata. The issue regarding maintainability of
\nthe writ petitions goes to the root of the matter
\nand, therefore, could be raised at any stage even
\nif the same was not raised earlier by the
\nrespondents. The respondents school is run by the
\nsociety. I have also extracted relevant provisions
\nof the constitution of the school. It cannot be
\nchallenged that the said school is being funded out
\nof the regimental found. In a recent decision of
\nthe Supreme Court in UNION OF INDIA AND ANR. V.
\nCHOTELAL AND ORS<\/a>. ,
\nthe nature of the regimental fund came to be
\nconsidered and decided. After discussing and
\nscrutinising the character of the regimental Fund,
\nit was held by the Supreme Court that the said fund
\ncannot be held to be public fund by any stretch of
\nimagination and a person paid out of such fund
\ncannot be held to be holder of civil post within
\nthe Ministry of defense. In the said decision the
\nSupreme Court noticed some provisions of the
\ndefense Services Regulations, which give an idea as
\nto the characteristic of the regimental fund. The
\ncourt considered Regulation 801 (a) of the said
\nregulations wherein public funds have been defined
\nas follows:\n<\/p>\n

801(a) Public Funds- Include all funds
\nwhich are financed entirely from
\npublic money, the unexpended
\nbalances of which are refundable
\nto Government in the event of not
\nbeing devoted of the objects for
\nwhich granted, and also<\/p>\n

(i) unissued pay and allowances;\n<\/p>\n

(ii) Office allowance fund; and <\/p>\n

(iii) the estates of deceased men and
\ndeserters.”\n<\/p>\n

10. The Supreme Court also considered
\nRegulation 801(b), which defines ‘Regulation Fund’
\nto mean comprising all funds, other than pubic
\nfunds maintained by a Unit. Regulation 820 of the
\nsaid Regulations was also considered by the Supreme
\nCourt, which provides for administration of such
\nRegimental Fund. Regulation 820(a) clearly
\nindicates that all funds other than public fund as
\ndefined in Para 801 maintained by a unit, are
\nfinanced either wholly or partly from public money.
\nThe Regulation further provides that the Commanding
\nOfficer acts as a trustee in relation to the
\n‘Regimental Fund’ and is responsible that the funds
\nare properly applied with special reference to the
\nobject of the fund and for the benefit of the
\npersonnel or unit as a whole. After examining the
\nsaid provisions, the Supreme Court held that the
\nsaid fund, therefore, cannot be held to be public
\nfund by any stretch of imagination and the ‘Dhobis’
\npaid out of such fund cannot be held to be holders
\nof civil post. It is, thus, conclusively laid down
\nby the Supreme Court that the ‘Regimental Fund’ is
\nnot a public fund and, therefore, the school run by
\na society out of regimental fund cannot be said to
\nbe discharging public functions.\n<\/p>\n

11. In TEJRAM PARASHRAMJI BOMBHATE AND ORS.
\nV. ORDNANCE FACtorY, AMBAZARI, NAGPUR AND ORS.
\nreported in 1991 SCC (L&S) 810, the Supreme Court
\nheld that there is no relationship of master and
\nservant between the Central Government and the
\nteachers, who were employed in the Secondary School
\nby local arrangement made by the officers of the
\nfurther held that the Administrative Tribunal could
\nnot have issued a direction to compel the Central
\nGovernment to assess the need of the school and
\ncreate necessary posts in the school as the same is
\n a policy matter involving financial burden.
\nReference may also be made to the decision in
\n MRS. ASHA KHOSA V. CHAIRMAN, ARMY PUBLIC SCHOOL,
\nNORTHERN COMMAND & ORS. reported in MLJ 1997 J&K\n<\/p>\n

71. In the said decision rendered by a Division
\nBench of the Jammu & Kashmir High Court, it was
\nheld that insofar as the Army Public School,
\nUdhampur is concerned, neither the funding is by
\nthe Government of India or by the State Government,
\nnor the authority is controlled by the Central
\nGovernment or by the State Government and,
\ntherefore, it cannot be said to be a State within
\nthe meaning of Article 12<\/a> of the Constitution of
\nIndia nor the Rules called the Army Welfare
\nEducation Society Rules can be said to be statutory
\nin nature and, therefore, the said society is not
\namenable to the writ jurisdiction under Article 12<\/a>
\nof the Constitution of India.\n<\/p>\n

12. On examination of the records placed
\nbefore me, to which reference has been made
\nhereinabove and the various decisions relied upon
\nby the counsel appearing for the parties, I am of
\nthe considered opinion that the Society who is
\nmanaging and running the respondent school out of
\nRegimental Fund would not come within the ambit of
\nthe expression ‘State’ or any other authority as
\nenvisaged under Article 12<\/a> of the Constitution of
\nIndia. The school in question is managed out of
\nthe Regimental Fund, which is not a public fund and
\nthe said school is managed by a society registered
\nunder the Societies Registration Act<\/a>. The same is
\nneither controlled nor managed by the Government of
\nIndia or by the State Government nor he society
\nreceives any fund from the said Governments. The
\nschool in question is a primary school at at the
\ntime when the decision for closure of the school
\nwas taken it had only the preparatory classes going
\non in the school. The rest of the classes were
\nshifted to Army Public Schoo, which was started at
\nNOIDA. At the time when the aforesaid notices were
\nissued, there were only two classes and at that
\nstage the ratio of teachers and students was 1:15
\nwhereas in the constitution of the school, the
\nratio between the teacher and the students was
\nrequired to be 1:35. When a conscious decision has
\nbeen taken by the respondent society to close the
\nschool, on the ground of non-viability of the
\nschool on financial reasons the same is a decision
\nconcerning policy matter involving financial
\nimplications. The society was running the school
\nfrom a premises taken on lease from respondent No.1
\nand the said lease stands cancelled. The society,
\nin view of the changed circumstances, decided to
\nclose the school but the services of the
\npetitioners are being continued in the light of the
\ninterim order passed by this court. In view of the
\naforesaid position, could this court direct the
\nrespondents to continue to run the school, which
\nwould necessarily involve financial burden? The
\nanswer has to be in the negative in view of the
\nposition settled by the Supreme Court particularly
\nin the decision of Tejram Parashramji Bombhate
\n(supra).\n<\/p>\n

13. Therefore, in the light of the discussion
\naforesaid, I hold that neither the writ petitions
\nfiled by the petitioners are maintainable nor any
\ndirection could be issued to the respondents not to
\nrelease the petitioners from their services as the
\nsame would necessarily mean and would amount to a
\ndirection to continue to make the school functional
\ninspite of financial constraint and non-viability
\nof the school. Such a direction also cannot be
\nissued as the same would also amount to interfering
\nwith the policy matter of the respondent involving
\nfinancial burden. In the light of the aforesaid
\ndiscussion, I find no merit in the writ petitions
\nand they are dismissed.\n<\/p>\n

14. In the second writ petition being CWP
\nNo.1798\/99, which is also dismissed and which was
\nfiled by the parents, none appeared to press the
\nsaid petition at the time of arguments. The
\nstudents, on whose behalf the said writ petition
\nwas filed by their parents, have already joined
\nother schools and, therefore, nothing survives in
\nthe said writ petition. In view of dismissal of
\nthe writ petitions and also upon examination of he
\nallegation made in the contempt petition, I find no
\nmerit in the contempt petition also and the same
\nstands dismissed. However, before parting with the
\nrecords of the case, I would like to observe that
\nsome of the petitioners have worked in the
\nrespondent school for number of years and,
\ntherefore, the services of the petitioners could be
\nappropriately utilised by the respondents in
\nappropriate places. Therefore, if and when
\nappropriate vacancy arises in any school of the
\npresent society or any other school or any sister
\nconcern of the respondent society, the cases of the
\npetitioners shall be considered and they would be
\nsuitably accommodated in any such school in
\naccordance with law.<\/p>\n","protected":false},"excerpt":{"rendered":"

Delhi High Court Asha Vij And Ors. vs The Chief Of The Army Staff And Ors. on 7 November, 2001 Equivalent citations: 2002 VIAD Delhi 109 Author: M Sharma Bench: M Sharma JUDGMENT Mukundakam Sharma, J. 1. As the facts and the issues raised in these two writ petitions and the contempt petition are similar, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-252265","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nAsha Vij And Ors. vs The Chief Of The Army Staff And Ors. on 7 November, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/asha-vij-and-ors-vs-the-chief-of-the-army-staff-and-ors-on-7-november-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Asha Vij And Ors. vs The Chief Of The Army Staff And Ors. on 7 November, 2001 - 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