Judgment Sudhanshu Dhulia, J. 1. There is a School at Roorkee in District Haridwar which was earlier known as “St. Gabriel’s Academy, Roorkee” and is presently known as “Army Public School No.2”, which runs classes from pre-school to XII. Till recently (about two years back), the school was under the management and control of a Society, known as “Brothers of St. Gabriel Province of Delhi”. “Brothers of St. Gabriel Province of Delhi” (from herein after referred to as the “Society”) is a society registered under the Societies Registration Act, 1860 and has the status of a “minority institution”. It was this Society which had opened the school which was being run by its earlier name i.e. St. Gabriel’s Academy. 2. The land as well as the building of the school belong to the Indian Army and more particularly to the Bengal Engineering Group and Center (from herein after referred to as the “BEG & C”) having its headquarter at Roorkee, Haridwar. Bengal Engineering Group and Center are the famed Bengal Sappers of the Indian Army. 3. Though the school runs since 1962, yet an agreement was executed only on 13.07.1967, between the Society and Bengal Engineer Group Benevolent Trust, Roorkee on 13.07.1967. As per the agreement, the building and land were leased in favour of the Society for a period of 30 years. Admittedly, on 20.04.1997, after the expiry of 30 years, the lease was further extended for a period of 15 years, which ultimately came to an end in March, 2012. 4. The management of the school, thus, has peacefully changed hands which is now under the BEG & C as well as AWES (Army Welfare Education Society). 5. The petitioners who are the teaching as well as the non teaching staff of St. Gabriel’s Academy (now Army Public School No. 2, Roorkee) are primarily aggrieved by a letter dated 28.02.2012 written by Deputy Commandant, BEG & C to Brothers of St. Gabriel’s, who is the ex-officio Chairman of the trust by which the services of entire teaching as well as administrative staff was terminated. The said letter has heading “CHANGE OF SCHOOL MANAGEMENT”, the relevant portion of the said letter reads as under:- “(a) Services of the teachers and administrative staff of St. Gabriel’s Academy School should be terminated before the establishment of APS No. 2 Roorkee. The said letter has heading “CHANGE OF SCHOOL MANAGEMENT”, the relevant portion of the said letter reads as under:- “(a) Services of the teachers and administrative staff of St. Gabriel’s Academy School should be terminated before the establishment of APS No. 2 Roorkee. Existing competent teachers meeting the CBSE educational qualifications may be considered for appointment on adhoc basis for one year after a gap of minimum of seven days from the date of termination of service. The condition of holding an AWES Score Card for appointment as teachers may be relaxed in their case. They should be advised to appear and qualify in All India Written Test scheduled on second Sunday of Dec. 2012. The terms and conditions for their employment should accordingly be formulated.” 6. Inter alia, a prayer of the petitioners in the present writ petition is for quashing of the said letter/order. The operation of the above order meanwhile is stayed by an interim order of this Court. Petitioners further pray that their services should not be disturbed, merely because of the change of Management of the School. This is all they seek. 7. During the pendency of the writ petition an impleadment application was moved by the petitioner to implead Army Welfare Education Society (in short “AWES”) as respondent No. 7 stating that now the school (Army Public School No. 2, Roorkee) is under the administrative control of AWES. Application was allowed and Respondent No. 7 is now being represented by Mr. Manoj Tiwari, Senior Advocate, who is also the counsel of respondent No. 1. 8. A preliminary objection has been raised by the respondents, namely, respondent nos. 2, 3, 5, 7 regarding the very maintainability of this writ petition on the ground that the school is managed by a Society which is Army Welfare Education Society/respondent no. 7, which is only a welfare wing of the Indian Army. This Society does not get any kind of monetary aid from the Government and a writ petition against a purely private body is not maintainable under Article 226 of the Constitution of India. 9. The aspect of the maintainability of the writ petition is, therefore, being dealt first. 10. As we have seen, the school in question was earlier known as “St. Gabriel School” which was under the management of a Society, namely, respondent no.4 i.e. St. Gabriel Province of Delhi. 9. The aspect of the maintainability of the writ petition is, therefore, being dealt first. 10. As we have seen, the school in question was earlier known as “St. Gabriel School” which was under the management of a Society, namely, respondent no.4 i.e. St. Gabriel Province of Delhi. Now the management has changed and is presently with respondent no.5/Bengal Sappers St. Gabriel’s Academy, Roorkee. 11. According to the respondents, referred above, the establishment of school in an Army Unit or Regimental Center is a welfare activity which a Unit or Regimental Center undertakes for the welfare of its personnel and troops and this welfare work does not form apart of any official or statutory duty of the officers of the Army so engaged in the school activity and, therefore, the school activity including its administration is entirely a private enterprises undertaken by the officers and staff of the Indian Army for the welfare of their personnel and their dependents. 12. The said respondents (Respondent Nos. 2, 3, 5, 7) further argue that in such a welfare activity, the Government or the Indian Army does not have any control or a role to play, leave aside any deep or pervasive control on the administration or running of the School, as is alleged by the petitioners. They also argue that the welfare activities which are undertaken are financed entirely by raising private funds, primarily from private contributions, by the officers and men of various military establishments. The fund is known as “Regimental Fund of the Unit” and is purely private in nature and non-auditable by Central Defence Accounts. The building furniture and equipments provided to respondent nos. 3/Bengal Engineering Group Benevolent Trust and earlier to respondent no.4/Institute of Brothers of St. Gabriel is provided from the Regimental funds which is purely private property of Bengal Engineering Group Benevolent Trust. There is no Central Government control at all. It is further being argued that respondent nos. 1, 2 i.e. Union of India as well as the Bengal Engineering Group and Centre have been made parties in the writ petition with the sole purpose to make the matter amenable to the writ jurisdiction of this Court, under Article 226 of the Constitution of India, though respondent nos. It is further being argued that respondent nos. 1, 2 i.e. Union of India as well as the Bengal Engineering Group and Centre have been made parties in the writ petition with the sole purpose to make the matter amenable to the writ jurisdiction of this Court, under Article 226 of the Constitution of India, though respondent nos. 1 and 2 do not have any role to play in the present matter or dispute and for the remaining respondents who are presently in control of the affairs of the school a writ petition would not be maintainable. 13. It has also been argued that the Commandant of Bengal Engineering Group and Centre, Roorkee is only the Ex-officio Chairman of the Bengal Engineering Group Benevolent Trust and the welfare activity conducted by the Trust are purely honorary having absolutely no relation to official charter of the duty of army officers and army persons. Respondent no.7 i.e. Army Welfare Education Society is again a private unaided Society registered under the Registration Act, hence does not come under the writ jurisdiction it does not have any grant from the Government of India, State Government and, therefore, not a State or its instrumentalities as defined in Article 12 of the Constitution of India. In order to substantiate this argument, learned counsel for the respondents Mr. Manoj Tiwari, Senior Advocate and Mr. Pullak Raj Mullick have relied upon a Division Bench judgment of Allahabad High Court, namely, Army School, Kunaraghat, Gorakhpur Vs. Smt. Shilpi Paul, 2004 (5) AWC 4934, where it was held that an Army school is purely a private body and not “State” under Article 12 of the Constitution of India, hence writ petition was not maintainable against it. Since it has been held that a writ petition is not maintainable against an Army school by a Division Bench judgment of Allahabad High Court the present writ petition is not maintainable, which is also against an Army School and is exactly on the same footing as the present school i.e. respondent no. 5, which is now known as “Army School No.2”. In paragraph nos. 23, 25 and 26 of the above judgment the Division Bench of Allahabad High Court said as under:- “23. We have carefully considered these judgments as well as the other decisions relied on by the learned counsels for the parties. 5, which is now known as “Army School No.2”. In paragraph nos. 23, 25 and 26 of the above judgment the Division Bench of Allahabad High Court said as under:- “23. We have carefully considered these judgments as well as the other decisions relied on by the learned counsels for the parties. We have also considered the decision of the learned single judge of this Court in Abu Zaid v. Principal Madrasa-Tul-Islah Sarai Mir, Azamgarh, Civil Misc. Writ Petition No. 14238 of 1998, decided on 28.7.1998. In the decision of Abu Zaid v. Principal Madrasa-Tul-Islah Sarai Mir, Azamgarh (supra) the learned single Judge has held that a writ petition lies even against a private educational institution since the educational institution is discharging a public duty of imparting education which has been held to be a fundamental right by the Supreme Court. We do not agree. In our opinion every school cannot be regarded as State under Article 12 of the Constitution and a writ petition will not lie against a purely private educational institution not receiving funds from the Government or a Government agency as it cannot be deemed to be an instrumentality of the State. 25. We agree with the view taken by the learned single Judge in V.K. Walia v. Chairman, Army School Mathura Cannt. (supra) and we do not agree with the view taken by the learned single Judge in Smt. Rajni Sharma v. Union of India (supra) since we are of the opinion that the Army School, Gorakhpur, is not State under Article 12 of the Constitution as it does not receive funds from the Government nor does the Government have any control much less deep and pervasive control over it. 26. A similar view was taken by a Division Bench of the Jammu and Kashmir High Court in Writ Petition No. 1415 of 1996, Mrs. Asha Khosa v. Chairman, Army Public School, decided on 17.2.1997, in which the Division Bench of that Court held that the writ petition was not maintainable as the Army Welfare Educational Society is not an instrumentality of the State under Article 12 of the Constitution. Against the judgment of the Jammu and Kashmir High Court a Special Appeal No. 6482 of 1997 was filed before the Supreme Court which was dismissed on 31.3.1997. Against the judgment of the Jammu and Kashmir High Court a Special Appeal No. 6482 of 1997 was filed before the Supreme Court which was dismissed on 31.3.1997. We fully agree with the view taken by the Jammu and Kashmir High Court in the aforesaid decision.” 14. There are other decisions cited by the learned counsel for the respondents, such as, Union of India through Secretary Vs. Dileep Kumar Pandey, which was rendered by the Hon’ble Division Bench of Allahabad High Court in Special Appeal No.1074 of 2010 and M.K. Gandhi and others Vs. Director of Education, 2005 (4) ESC 2265. 15. Whether a Society is a State or an instrumentality of State, under Article 12 of the Constitution of India, will be determined, inter alia, if the State or State authorities have a deep and pervasive control over the society, either administratively or financially. Even assuming, for the sake of argument, that the entire expenses of the school are met by the funds generated by the school itself and it is under no financial aid either from the Central Government or the State Government, or even by any local authority or any other authority, yet the fact remains that it is under a deep and pervasive administrative control of the army authorities. The very letter dated 28th February, 2012 (to which we would refer shortly), which has given rise to the writ petition is an order passed by the Commandant Bengal Engineering Group and Centre. It is again admitted fact that the Commandant, Bengal Engineering Group and Centre is an Ex-Officio Chairman of the Society but then even if it is assumed for the sake of argument, as is being submitted by the respondents, referred above, that there is no Government or Army control over the Society or on the running of the administration of the school, yet the fact remains that it will be amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India. This is so because a writ petition can be filed against an authority or a person as a writ can be issued, inter alia, “to any person or authority”. The scope of writ jurisdiction under Article 226 is much wider and not limited to a State or Instrumentality of the State. This is so because a writ petition can be filed against an authority or a person as a writ can be issued, inter alia, “to any person or authority”. The scope of writ jurisdiction under Article 226 is much wider and not limited to a State or Instrumentality of the State. The Hon’ble Apex Court in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & othersVs. V.R. Rudani & others, (1989) 2 Supreme Court Cases 691, while holding that a writ petition is maintainable against a private body if it is performing a ‘public function’ and while discussing the scope of Article 226 and Article 32 of the Constitution of India states as under in Para 20 of the judgment:- “20. The term “authority” used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 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. The words “any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature 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. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.” 16. A writ petition under Article 226 of the Constitution of India is maintainable against (i) the State Government; (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging a public duty or positive obligation of a public nature; and (viii) a person or a body under a liability to discharge any function under any statute, to compel it to perform such statutory function [Per by Hon’ble Apex Court in para 18 of the judgment rendered in Federal Bank Ltd. Vs. Sagar Thomas and others, (2003) 10 SCC 733 ]. 17. The decision of the Hon’ble Court rendered by the Division Bench of Allahabad High Court (on which much reliance has been placed by the respondents) was given in a different context. It was also rendered in different times. Article 21A of Constitution of India had not yet been inserted in Part III of the Constitution of India. Right of Children to Free and Compulsory Education is now a fundamental right of every child up to the age of fourteen years and this right to get free elementary education is not limited to Government schools alone. It has been extended even to private schools, irrespective of any financial aid from the Government or any other authority. The school in question imparts education from nursery (pre-school) to Class XII. It therefore runs classes from class I to VIII as well. Nursery to Class VIII which would be a part of “elementary education” which now has to be “free and compulsory” is a fundamental right under Article 21 A of the Constitution of India. A detail parliamentary legislation, namely, The Right of Children to Free and Compulsory Education Act, 2009, is now in force. Therefore, school education which would include school administration has now a definite public element attached to it. Even if this Court accepts each and every argument of the respondents (though it is not accepted), regarding the school being run by a private body yet the fact cannot be denied that this private body is discharging a public duty. For non-interference under Article 226 of the Constitution of India such a school has to be an “unaided private minority school”. 18. Army School No. 2 is neither private nor unaided and definitely nor a minority. Infact a Division Bench of this High Court in the case of Km. Vimi Joshi Vs. Chairman, School Managing Committee [Writ Petition No. (SB) 398 of 2004], has held that an Army school (in that case army school at Bin, Pithoragarh) is State within the meaning of Article 12 of the Constitution of India, and is amenable to writ jurisdiction of this Court. 19. In a recent judgment of Hon’ble Apex Court in the case of Society for Unaided Private Schools of Rajasthan Vs. 19. In a recent judgment of Hon’ble Apex Court in the case of Society for Unaided Private Schools of Rajasthan Vs. Union of India (2012) 6 SCC 1 , where there was a challenge to the constitutional validity of many provisions of the Right to Education Act, the majority view of the Hon’ble Apex Court has been that barring an “unaided private minority institution”, the Right to Education Act and its provisions including Section 12 which mandates that even in private unaided school 25% of the seats in elementary classes shall be reserved for free education, shall be applicable to all other schools, Government, private, aided or unaided. While upholding the validity of the said Act, the only exception which has been carved out by Hon’ble Apex Court is to an “unaided private minority” institution, as that will have a protection under Article 29 & 30 of the Constitution of India. 20. In the said judgment of Society for Unaided Private Schools of Rajasthan Vs. Union of India (Supra), in para 37 the Hon’ble Apex Court said that such an activity undertaken by the private institutions supplements the primary obligation of the State. The necessary implication of the above judgment would be that imparting elementary education which respondent no.5 is presently doing, as it runs elementary classes from I to VIII and therefore is performing a public function. There is no doubt that the writ petition is maintainable at the hands of the petitioners against the respondents, which is amenable to writ jurisdiction of this Court, as the respondents are firstly under a deep and pervasive administrative control of Army authorities and secondly they are running a school which has a public element attached to it. 21. Having made the above determination regarding the maintainability of the writ petition before this Court, the matter has been heard on merits. 22. Before this Court, is the entire staff of the Institute i.e. teaching and non teaching staff. They have a common apprehension which is that their services will now be terminated by its new employer and consequently seek a relief from this Court. 23. The first question would be regarding the genuineness of their apprehension. Is it well founded or not? As definitely any apprehension not based on reality cannot be a ground for entertaining in a writ petition. 23. The first question would be regarding the genuineness of their apprehension. Is it well founded or not? As definitely any apprehension not based on reality cannot be a ground for entertaining in a writ petition. But the fact of the matter is that the apprehension of the petitioners is indeed well founded as the clear and unambiguous terms of the impugned order dated 28.02.2012 are that services of the petitioners are liable to be terminated and they would only join the school, if at all they do, under new terms and conditions. Can this be done and can such marching orders as the respondents indeed intended to pass, be passed against the petitioners, is the short question for determination before this Court now! 24. The learned counsel for the respondent nos. 4 & 5 Mr. Aditya Singh has vehemently argued, placing letter after letter of the Society, which had raised concerns before the Army authorities and particularly to BEG & C as to the future of the teaching as well as non teaching staff of the school in the event of the change of management which was imminent. 25. During the discussions and negotiation before the transfer, the authorities with whom the management was to vest shortly have not made any definite commitment or given assurance to the teaching or the non teaching staff of the College regarding security of their tenure, or regarding status of their service. Infact the teaching and non teaching staff of the school were never taken into confidence either by the BEG & C or the St. Gabriel Society in their negotiations. When such agreement was executed and the baton was handed over to the new employer and management, the concern and interest of those who are under the employment ought to be addressed. These are the basic requirements when such change over takes place in a civil society, which is bound by the rule of law. The employees of the school have a legitimate expectation that their conditions of service which were applicable immediately before the change over will not be varied to their disadvantage. However, this is what the new employer intend to do, which is reflected in his letter dated 28.02.2012. The danger to their service is not a mere apprehension of the petitioners. It is a “clear and present” danger. However, this is what the new employer intend to do, which is reflected in his letter dated 28.02.2012. The danger to their service is not a mere apprehension of the petitioners. It is a “clear and present” danger. This Court consequently intends to issue its writ of mandamus to stop the respondents from doing this. 26. In the entire process of the change of management, the petitioners were never taken into confidence. Their point of view was never considered necessary. They were never given any opportunity of hearing. On the contrary BEG & C and respondent no. 7 AWES, have shown documents before this Court justifying their unilateral action. Mr. P.R. Mullick, counsel for the respondent nos. 2 & 3 has argued that the society i.e. Brothers of St. Gabriel Province of Delhi have made immense profit from the school and they have opened another school in Roorkee and if they are really concerned about the petitioners then they can adjust them in their new school! 27. This is not the correct way of dealing with the issue. What has happened is not a simple change over from one management to another, which can only be seen on the basis of “profit and loss accounts” and “balance sheets.” It is not a business commercial deal we are looking at. What we are looking at is a change over of management in a school which imparts education to school going children and therefore the “public element” in this transaction has always to be kept in mind. 28. We also have to appreciate the “legitimate expectations” of the petitioners who expect equity, fair- play and justice, from a public authority which respondent nos. 2, 3 and 7 indeed are and, therefore, they must meet such standards as a public authority ought to have. The new management of the School, including respondent no.2, 3 and 7 are hereby directed not to change or vary the conditions of the petitioners to their disadvantage. 29. The writ petition, consequently, succeeds. The order dated 28.02.2012, since it is only in the nature of letter, need not be quashed. All the same, a mandamus is hereby issued to the respondents not to change, vary or resent any of those conditions on which the petitioners (teaching as well as non teaching staff of the school) were appointed, to the disadvantage of the petitioners. 30. All the same, a mandamus is hereby issued to the respondents not to change, vary or resent any of those conditions on which the petitioners (teaching as well as non teaching staff of the school) were appointed, to the disadvantage of the petitioners. 30. No order as to costs.