Bhawana Pant v. Indian Air Force Educational and Cultural Society
2025-02-27
VISHAL MISHRA
body2025
DigiLaw.ai
ORDER : 1. Challenge in the present petition is made to an order dated 27.08.2024 (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 dated 09.07.2021 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 (Asha Khosa vs. Chairman, Army Public School and others) decided on 17.02.1997 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.
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) dated 12.07.2010, 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, (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 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, 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 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. 4. Heard the parties on the question of maintainability of the writ petition. 5. In the present case, it is not disputed that the school in question is running by the Indian Air Force Educational and Cultural Society. The Society is registered under the Societies Registration Act, 1860. It is a non-profit making welfare institution, with its primary aim being 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. There is nothing on record brought to the notice of this Court that the society is under the control of the Central Government or is being funded by the Central Government. 6. A similar issue came up for consideration before the Hon'ble Supreme Court in the case of Army Welfare Education Society, New Delhi (supra) and the Hon'ble Supreme Court has held as under: "6. The following two questions of law fall for our consideration:- a. Whether the appellant Army Welfare Education Society is a “State” within Article 12 of the Constitution of India so as to make a writ petition under Article 226 of the Constitution maintainable against it? In other words, whether a service dispute in the private realm involving a private educational institution and its employees can be adjudicated upon in a writ petition filed under Article 226 of the Constitution? b. Even if it is assumed that the appellant Army Welfare Education Society is a body performing public duty amenable to writ jurisdiction, whether all its decisions are subject to judicial review or only those decisions which have public law element therein can be judicially reviewed under the writ jurisdiction? 37. Thus, the dictum as laid in Satimbla Sharma (supra) is clear.
37. Thus, the dictum as laid in Satimbla Sharma (supra) is clear. In the absence of any statutory provisions requiring a private unaided school to pay to its teachers the same salary and allowances as payable to the teachers of the Government schools, a mandamus cannot be issued to pay to the teachers of private recognised unaided schools the same salary and allowances as payable to the teachers of Government institutions. In the case at hand, the respondents are being paid the same salary and allowances as being paid to the teachers and non-teaching staff appointed by the appellant society. 42. In the penultimate paragraph, this Court ruled as under:- “32. Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not “State” within the meaning of Article 12 of the Constitution and such body is amenable to the jurisdiction under Article 226 of the Constitution and the High Court under Article 226 of the Constitution can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties.” 7. The Hon'ble Supreme Court while passing the aforesaid judgment has taken note of the observations made in the case of St. Mary Education Society (supra). In the case of St. Mary Education Society (supra), the Hon'ble Supreme Court has observed as under: "(a) Whether a writ petition under Article 226 of the Constitution of India is maintainable against a private unaided minority institution? (b) Whether a service dispute in the private realm involving a private educational institution and its employee can be adjudicated in a writ petition filed under Article 226 of the Constitution? In other words, even if a body performing public duty is amenable to writ jurisdiction, are all its decisions subject to judicial review or only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction?" 75. We may sum up our final conclusions as under: 75.1. An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions.
We may sum up our final conclusions as under: 75.1. An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public. 75.1. An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public. 75.2. Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory provisions or the employer had the status of “State” within the expansive definition under Article 12 or it was found that the action complained of has public law element. 75.3.
Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory provisions or the employer had the status of “State” within the expansive definition under Article 12 or it was found that the action complained of has public law element. 75.3. It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a constitutional court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions . An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a “public function” or “public duty” be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service. 75.4. Even if it be perceived that imparting education by private unaided school is a public duty within the expanded expression of the term, an employee of a non-teaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether “A” or “B” is employed by school to discharge that duty. In any case, the terms of employment of contract between a school and non-teaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education. This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of non-teaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered with by the Court.
This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of non-teaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered with by the Court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty. 75.5. From the pleadings in the original writ petition, it is apparent that no element of any public law is agitated or otherwise made out. In other words, the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character." 8. Identical issue with respect to the Air Force Schools, the matter came up for consideration before the Hon'ble Supreme Court in the case of Dileep Kumar Pandey (supra) wherein it is held as under: "We have given our thoughtful consideration to the submissions raised on this preliminary point relating to the maintainability of the writ petition. From the facts as pleaded, it is undisputed that the respondent - petitioner is an employee of the school which is not governed by any statutory regulation. The Society, which manages the institution, has its own education code so framed, which does not have any statutory sanction. At least, learned counsel for the respondent - petitioner has been unable to point out any such existence of a rule or regulations having statutory flavour. The institution is admittedly established by a Society registered under the Societies Registration Act and is governed by its own by-laws. The only factual averments made by the petitioner in the writ petition are to the following effect:- "5. That for the effective management and administration of the Air Force School at various units, the Society has framed an "Education Code Air Force Schools 2005. The Code aforesaid is identical to Education Code framed for the managing to Kendriya Vidyalay. 6. That the Air Force Schools are financed by the Central Government, through Indian Air Force School, controlled by the officers of the Indian Air Force and the purposes is to impart education to the children of officers and employees of the Indian Air Force.
The Code aforesaid is identical to Education Code framed for the managing to Kendriya Vidyalay. 6. That the Air Force Schools are financed by the Central Government, through Indian Air Force School, controlled by the officers of the Indian Air Force and the purposes is to impart education to the children of officers and employees of the Indian Air Force. The Air Force Schools come within the meaning of the word "State" under Article 12 of the Constitution of India. 7. That the Air Force School, Bamrauli, Allahabad, is a school established by the aforesaid Society and the said school comes under the definition of "State" under Article 12 of the Constitution of India." Apart from this, there is nothing in the writ petition to indicate that the School is funded through any government allocated fund or any control over the management under the authority of the government. The management is entrusted to the Officers under the by-laws of the Society. This nature of control is an administrative control and cannot be termed as a control by the government. In the absence of anything further, it will not be possible to construe either factually or legally that there is a governmental control much less a deep and pervasive control over the institution. So far as the finances are concerned, the appellant - respondent have categorically stated in their counter-affidavit that neither the welfare fund which is a voluntary contribution by the Officers is a fund allocated by the Government nor the Central Government or the State Government in any way extend any such financial aid to the institution. It has been further averred that the finances are arranged out of the fees collected from the students under various heads and the same is supplemented by the contribution of the Air Force personnel which is voluntary in nature. It has also been categorically stated that the by-laws namely the Education Code Air Force School 2005 which govern the terms and conditions of service of the respondent - petitioner are neither statutory nor do they indicate any state control. A rejoinder-affidavit to the said Affidavit on behalf of the appellants has been filed by the petitioner and there is no denial or any material to the aforesaid specific and categorical averments made in the counter- affidavit.
A rejoinder-affidavit to the said Affidavit on behalf of the appellants has been filed by the petitioner and there is no denial or any material to the aforesaid specific and categorical averments made in the counter- affidavit. The respondent - petitioner, therefore, apart from the bald averments in the writ petition did not bring on record any material to establish as a matter of fact that the School was either functionally, administratively or financially under the control of the government. This being the factual position on record, we may now turn towards the decisions which have been relied upon by the learned counsel for the parties. The learned single Judge relied on 2 decisions in order to meet this preliminary objection. The decision in the case of Anoop Kumar Pandey (supra) relied on the decision in the case of Smt. Rajni Sharma (supra). The decision in the case of Rajni Sharma came to be scrutinised in Army School, Kuraghat, Gorakhpur (supra) and the Division Bench vide judgment dated 16.8.2004 over ruled the decision in the same holding that the Army Welfare Society and the institution managed by it were not amenable to the writ jurisdiction of the court as the Society and the institution were not State within the meaning of Article 12 of the Constitution. In this view of the matter, in our opinion, the law laid down in the case of Anoop Kumar Pandey does not hold water. The learned single Judge in the impugned judgement even though took notice of the aforesaid Division Bench judgment yet without considering the ratio of the same and without even discussing the contents thereof, held that it was distinguishable on facts. In our opinion, it is well known that though two cases are ordinarily not identical on facts yet the ratio of the decision has to be looked into in the light of the facts pleaded, and we therefore, find that the learned single Judge has committed an error by distinguishing the said Division Bench judgment even without taking notice of the ratio of the same. The second decision relied upon by the learned single Judge in the case of Sanjai Kumar Sharma (supra) arose in relation to the dispute of the post of Principal of Air Force Station, Bamrauli, who is the appellant before us and, therefore, the said decision is directly in issue. We may quote paragraph nos.
The second decision relied upon by the learned single Judge in the case of Sanjai Kumar Sharma (supra) arose in relation to the dispute of the post of Principal of Air Force Station, Bamrauli, who is the appellant before us and, therefore, the said decision is directly in issue. We may quote paragraph nos. 11 to 17 for reference:- "11. One of the points strongly pressed on behalf of the respondents is that the writ was not maintainable, as the School is not Article 12 authority. It was said that the School is run by a Society registered on 25.9.1980, and that the funding is basically by the fees paid and the contributions of Air Force personnel, and allegedly not one rupee comes by way of State aid. 12. The Education Code handed up to us, which has been framed by the Chairman of the Board of Governors of the Indian Air Force Education and Cultural Society, bears the emblem of the Indian Air Force on its top cover. Chapter 8 Rule 9 of the said book deals with how the finances are received; grant-in-aid as well as interconnection with other service institution funds, is mentioned. 13. Mr. Vijay Bahadur Singh, learned Senior Advocate relied on several Supreme Court cases in this regard. It is well known that the three important factors for considering whether the authority is an Article 12 authority or not, are (i) finance, (ii) control and (iii) purpose of the Institution. State financing tends to make the Institution come within Article 12; so does State control; so does public purpose, say, education as opposed to golfing activity. 14. One of the other possible ways of looking at it would be to imagine a hypothetical removal in one's mind of all State activity, and see whether the Institution would survive such removal. As an example, I.T.C. would certainly survive and it is certainly not an Article 12 authority. But cases which come to Court are not so simple, and all facts and circumstances have to be examined in each case. This is also well settled law. Would this School survive if all 'State and Government' were removed from India? That is the question to look the answer for. 15.
But cases which come to Court are not so simple, and all facts and circumstances have to be examined in each case. This is also well settled law. Would this School survive if all 'State and Government' were removed from India? That is the question to look the answer for. 15. Yet another aid in deciding whether the authority is an Article 12 or not, is to ask oneself the question whether it is reasonable to treat the authority as at par with the State. Not identical, but a similar question is whether it would be unreasonable to exclude the authority from being treated as a State. 16. If the School is not an Article 12 authority subject to a writ scrutiny, then and in that event, a prospective employee, like the appellant would have no recourse against the School, or the Board, if he were simply kept out of the run without assigning any reason or justification at all; if even no advertisement is issued; if out of reasons of personal choice, say, the twentieth in the list were preferred to the first. He would not be able to file a suit as he has no contractual or other relationship and he is not a member of the Society either. He would have no recourse, just as he would have no recourse, if somebody were selected as a Manager in one of the small departments of I.T.C. It is for the Court to examine whether this is the reasonable view to take in the facts and circumstances of this case. 17. On a balance of convenience, it is manifestly clear to us that the appellant has an arguable case in both the appeals. Although the show cause was made a subject of the writ two months after it was issued, yet one cannot exclude from consideration the fact that it takes time for a layman to get prepared with a law case and to file it in Court. before anything could be done, the removal order also came. It was at first thought that the writ against the removal had become infructuous, but later on it appeared, may be on queries made by the Court itself that if the show cause is inextricably connected with the appointment order of Ms.
before anything could be done, the removal order also came. It was at first thought that the writ against the removal had become infructuous, but later on it appeared, may be on queries made by the Court itself that if the show cause is inextricably connected with the appointment order of Ms. Kaul, and further, if the ground of mala files is good, then everything resting upon the show cause has to be quashed along with it." The said decision, in our opinion, proceeds on a hypothetical examination of the situation without laying down the law as to whether the Society which maintains the institution is amenable to the writ jurisdiction of the Court. The question that was posed by the Division Bench was, would this School survive if all 'State and Government' were removed from India and whether it would be unreasonable to exclude the authority from being treated as State. The conclusion drawn and the reason given for the same by the Division Bench is that the employees would have no recourse against the School by the Board if he was kept out of the run without assigning any reason or justification. Accordingly, the Bench presumed that this would be too harsh on the employee and, therefore, on a balance of convenience, the matter was entertained without, in our opinion, rendering any ratio decidendi to the question of amenability of the institution to the writ jurisdiction. In our opinion, the said decision does not in any way lay down the law as an absolute proposition that such a Society and the institution managed by it is a State within the meaning of Article 12 of the Constitution of India. This decision was rendered on 11.9.2006 and we find that it has proceeded on it's own facts without noticing the decision in the case of Army School, Gorakhpur (supra) which has been decided and reported earlier in 2004. The legal position in this matter stands concluded on the facts of this case keeping in view the ratio of the decision in the case of Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology and others, (2002) 5 SCC 111 . This has been quoted with approval in paragraph no.22 of the decision in the case of Zee Telefilms Ltd. (supra).
Indian Institute of Chemical Biology and others, (2002) 5 SCC 111 . This has been quoted with approval in paragraph no.22 of the decision in the case of Zee Telefilms Ltd. (supra). We have found as a matter of fact that there was no material on record to demonstrate that the institution was either functionally, financially or administratively dominated or controlled by the Government. At the best, there may be a limited contribution in the shape of providing the premises for setting up the School but there is no material to indicate that the Schools have been set up through government funds. Learned counsel for the respondents placed reliance on the decision in the case of Indian Sainik School Employees Association Vs. Defence Ministry cum Chairman, AIR 1989 SC 88 , to contend that such a welfare school set up by the Defence Ministry and which is also managed by a body registered under the Societies Registration Act, has been held to be the State within the meaning of Article 12 of the Constitution of India. We have read the said decision carefully and we find that there were specific pleadings in that case about the governmental control and substantial funding by the Defence Ministry to establish Sainik Schools. It was, therefore, found as a matter of fact that the State had deep and pervasive control through its financial involvement and administrative control and hence the Apex Court ruled that it's activities being a public function with help of governmental control, any dispute in relation thereof would be amenable to the writ jurisdiction. On facts found the said decision proceeded to hold that the Society was a State within the meaning of Article 12 of the Constitution of India. The aforesaid case is, therefore, clearly distinguishable on facts as in the present case nothing has been established to conclude that the appellants fall within the meaning of State as described under Article 12 of the Constitution of India. Coming to the question of the nature of the function performed suffice would be to quote paragraph no. 25 to 29 of the judgment in the case of Zee Telefilms Ltd. (supra) reproduced herein below:- "25.
Coming to the question of the nature of the function performed suffice would be to quote paragraph no. 25 to 29 of the judgment in the case of Zee Telefilms Ltd. (supra) reproduced herein below:- "25. Assuming for argument sake that some of the functions do partake the nature of public duties or State actions they being in a very limited area of the activities of the Board would not fall within the parameters laid down by this Court in Pradeep Kumar Biswas's case. Even otherwise assuming that there is some element of public duty involved in the discharge of the Board's functions even then as per the judgment of this Court in Pradeep Kumar Biswas (supra) that by itself would not suffice for bringing the Board within the net of "other authorities" for the purpose of Article 12. 26. The learned counsel appearing for the petitioners, however, contended that there are certain facets of the activities of the Board which really did not come up for consideration in any one of the earlier cases including in Pradeep Kumar Biswas case (supra) and those facts if considered would clearly go on to show that the Board is an instrumentality of the State. In support of this argument, he contended that in the present day context cricket has become a profession and that the cricketers have a fundamental right under Article 19 (1) (g) to pursue their professional career as cricketers. It was also submitted that the Board controls the said rights of a citizen by its rules and regulations and since such a regulation can be done only by the State the Board of necessity must be regarded as an instrumentality of the State. It was also pointed out that under its Memorandum of Association and the rules and regulations and due to its monopolistic control over the game of Cricket the Board has all pervasive powers to control a person's cricketing career as it has the sole authority to decide on his membership and affiliation to any particular Cricketing Association, which in turn would affect his right to play cricket at any level in India as well as abroad. 27. Assuming that these facts are correct the question then is, would it be sufficient to hold the Board to be a State for the purpose of Article 12? 28.
27. Assuming that these facts are correct the question then is, would it be sufficient to hold the Board to be a State for the purpose of Article 12? 28. There is no doubt that Article 19(1)(g) guarantees to all citizens the fundamental right to practise any profession or to carry on any trade occupation or business and that such a right can only be regulated by the State by virtue of Article 19(6). Hence, it follows as a logical corollary that any violation of this right will have to be claimed only against the State and unlike the rights under Articles 17 or 21 which can be claimed against non state actors including individuals the right under Article 19(1)(g) cannot be claimed against an individual or a non State entity. Thus, to argue that every entity, which validly or invalidly arrogates to itself the right to regulate or for that matter even starts regulating the fundamental right of the citizen under Article 19(1)(g), is a State within the meaning of Article 12 is to put the cart before the horse. If such logic were to be applied every employer who regulates the manner in which his employee works would also have to be treated as State. The pre- requisite for invoking the enforcement of a fundamental right under Article 32 is that the violator of that right should be a State first. Therefore, if the argument of the learned counsel for the petitioner is to be accepted then the petitioner will have to first establish that the Board is a State under Article 12 and it is violating the fundamental rights of the petitioner. Unless this is done the petitioner cannot allege that the Board violates fundamental rights and is therefore State within Article 12. In this petition under Article 32 we have already held that the petitioner has failed to establish that the Board is State within the meaning of Article 12. Therefore assuming there is violation of any fundamental right by the Board that will not make the Board a "State" for the purpose of Article 12. 29. It was then argued that the Board discharges public duties which are in the nature of State functions. Elaborating on this argument it was pointed out that the Board selects a team to represent India in international matches.
29. It was then argued that the Board discharges public duties which are in the nature of State functions. Elaborating on this argument it was pointed out that the Board selects a team to represent India in international matches. The Board makes rules that govern the activities of the cricket players, umpires and other persons involved in the activities of cricket. These, according to the petitioner, are all in the nature of State functions and an entity which discharges such functions can only be an instrumentality of State, therefore, the Board falls within the definition of State for the purpose of Article 12. Assuming that the abovementioned functions of the Board do amount to public duties or State functions, the question for our consideration is: would this be sufficient to hold the Board to be a State for the purpose of Article 12. While considering this aspect of the argument of the petitioner, it should be borne in mind that the State/Union has not chosen the Board to perform these duties nor has it legally authorised the Board to carry out these functions under any law or agreement. It has chosen to leave the activities of cricket to be controlled by private bodies out of such bodies' own volition (self- arrogated). In such circumstances when the actions of the Board are not actions as an authorised representative of the State, can it be said that the Board is discharging State functions? The answer should be no. In the absence of any authorisation, if a private body chooses to discharge any such function which is not prohibited by law then it would be incorrect to hold that such action of the body would make it an instrumentality of the State. The Union of India has tried to make out a case that the Board discharges these functions because of the de facto recognition granted by it to the Board under the guidelines framed by it but the Board has denied the same.
The Union of India has tried to make out a case that the Board discharges these functions because of the de facto recognition granted by it to the Board under the guidelines framed by it but the Board has denied the same. In this regard we must hold that the Union of India has failed to prove that there is any recognition by the Union of India under the guidelines framed by it and that the Board is discharging these functions on its own as an autonomous body." There is yet another aspect of the matter which deserves to be noted that there has to be an existence of a right guaranteed in a citizen in order to invoke the jurisdiction of this Court. That right has to be an enforceable right under some law or under any guarantee of the Constitution. In absence of any such argument available to the respondent - petitioner, we are unable to persuade ourselves to allow the respondent - petitioner to maintain this petition. We are fortified in our view by the ratio of the Supreme Court decision in the case of Zee Telefilms Ltd. (supra) (paragraph No.28) to that effect. Thus, in view of our conclusions drawn herein above, it is clear that the respondent - petitioner is an employee of the institution and accordingly in the absence of any statutory rules, or in the absence of any governmental or state control, the respondent - petitioner could not have maintained the instant petition. We may hasten to add that in the matter of private institutions also established under the Societies Registration Act, the issue was raised and answered by a Full Bench decision of our Court in the case of M.K. Gandhi and others Vs. Director of Education (secondary) U.P. Lucknow and others, 2005 (4) ESC 2265. The Full Bench held that no writ will lie against a private School but it further went on to observe that since the institution was recognized by the Central Board of Secondary Education, the said Board was directed to take action in respect of a dispute relating to the termination of teachers of the Institution. The matter went up to the Apex Court and the Apex Court vide judgment dated 14.8.2007 in Civil Appeal No. 339 of 2007 ruled as follows:- "That all the respondents were teachers in DPS School, Ghaziabad. Their services were terminated.
The matter went up to the Apex Court and the Apex Court vide judgment dated 14.8.2007 in Civil Appeal No. 339 of 2007 ruled as follows:- "That all the respondents were teachers in DPS School, Ghaziabad. Their services were terminated. Therefore, they approach the High Court of Allahabad for setting aside the termination order. The learned Single Judge referred the matter to a larger Bench on the question as to whether the writ petition is maintainable against the private school or not, as there was conflict of opinion of that High Court. Subsequently, the matter was referred to the larger Bench and the larger Bench after hearing the parties, held that no writ will lie against the private school as it is not a 'State' within the meaning of Article 12 of the Constitution of India. Having held that the writ petition is not maintainable against the private body, still, they directed the CBSE to take action, as mentioned above. With great respect to the Full Bench of the High Court, we fail to understand the direction given by the Allahabad High Court. In our opinion, the direction given by the Allahabad High Court to the CBSE to totally misconceived and uncalled for. When the Allahabad High Court has already held that the DPS School is within the meaning of Article 12 of the Constitution of India and the writ petition is not maintainable, there was no necessity for giving a direction to the CBSE which virtually amounts to granting a declaration in favour of those teachers whose services have been terminated. We fail to appreciate the view taken by the Allahabad High Court by unnecessarily complicating the issue by involving the CBSE for a private dispute between the teachers and the DPS. The Allahabad High Court should have stop short of holding that the said DPS is a private body and the writ is not maintainable. Hence, we are of the view that no writ is maintainable against a private school as it is not a 'State' within the meaning of Article 12 of the Constitution of India and no direction could have been given by the High Court to the CBSE for interfering with the functioning of the teachers. The proper remedy for the teachers was to fie a civil suit for damages, if there was any.
The proper remedy for the teachers was to fie a civil suit for damages, if there was any. Subsequently, we allow this appeal and set aside the order passed by the Allahabad High Court to the extant of giving a direction to the Board. There will be no order as to costs." Accordingly, for the reasons herein above, we find that the learned single Judge fell in error in over ruling the preliminary objection and holding that the writ was maintainable." 9. From the perusal of the aforesaid judgments passed by the Hon'ble Supreme Court in the aforesaid cases, it is relevant to note that whether the respondent/institution is under the control of the Government or is being funded by the Government. The primary object of the institution run by the society is already pointed out hereinabove that it is non-profit organization and the funds are being generated at their own source. Therefore, it is clear that, it is a non-profitable organization. 10. The judgments which are relied upon by the learned counsel for the petitioner are prior to passing of the judgment in the case of St. Mary Education Society (supra). The order passed by the coordinate Bench of this Court has no bearing on the petitioner's case as the proposition with respect to respondent/school has been dealt with in the case of Dileep Kumar Pandey (supra) and it was held that the writ petition was not maintainable. 11. The other grounds raised by the petitioner that the schools are being affiliation either by the Central Board of Secondary Education or ICSE, therefore, they are having sanction from the Government to run, therefore, they are under the control of the Government, is also not acceptable for the simple reason that for running a school, the sanction or permission from the Board is required to be taken. It is only for the purpose of registration of the school and for license to run the school. Whether the school is running by a society or is a Government school or is under the control of the Government, cannot be reflected from the fact that the school is affiliated to the Central Board of Secondary Education etc. These permissions are only for affiliation of the schools. It does not have any bearing with respect to the fact that whether the school is under the control of the Government or not.
These permissions are only for affiliation of the schools. It does not have any bearing with respect to the fact that whether the school is under the control of the Government or not. Even the private schools are required to take affiliation from the Central Board of Secondary Education or ICSE etc. This Court in the case of Dharmendra Nath Rai vs. Dav College Managing Committee and others, W.P. No. 27572 of 2019 vide order dated 20.11.2024 has that affiliation from the Board does not mean that the school is under the control of the Government. The relevant extract is as under: "Admittedly, the dispute in the present case is of removal of services of the petitioner who was working on the post of Head Master in the respondent/Institution. The service condition of the petitioner are governed by the bye laws of the society. His initial induction in the school is by the society on specific terms and conditions for which a contract must have been entered into. There are no statutory rules governing the services of the petitioner. In absence of any statutory rules governing the services of the petitioner coupled with the fact that the services of the petitioner are governed by the bye laws of the society it cannot be said that any public element is involved in the matter. It is a clear cut case of removal of service of the petitioner which does not involve any public element. Merely the fact that the school in question is affiliated to CBSE it does not amount the respondent/school being a private institution unaided institution falling under the definition of State in terms of Article 12 of the Constitution of India. The affiliation to the CBSE is only required for as a license to impart education. However, the present case, is a case of removal from service of a Head Master of the institution which is purely a dispute between the petitioner and the society as the service conditions of petitioner are governed by the bye laws of society. It is not covered under the definition of State in terms of Article 12 of the Constitution of India. Under these circumstances, this petition against the private unaided institution is not maintainable." 12.
It is not covered under the definition of State in terms of Article 12 of the Constitution of India. Under these circumstances, this petition against the private unaided institution is not maintainable." 12. Under these circumstances, it can be safely be inferred that the school in question is neither under the control of the Government nor is being funded by the Government and is run by a society and therefore does not fall under the definition of "State" Article 12 of the Constitution of India and the same is not amenable to the writ jurisdiction. 13. Even otherwise, the question involved in the writ petition is with respect to reversion of the petitioner from the lower post of Regular Primary Teacher to the post of Headmistress at Air Force School, Amla. It is an employer and employee relationship, which is to be linked into. In the present case, the Government is not employer of the petitioner. The school is running by a society. The service condition are being governed by the bye-laws of the society or the Education Code of the society. It has nothing to do with the Government agency. The appointment of the petitioner is in terms of the bye-laws or the Education Code of the society, which has no bearing upon the Government. Under these circumstances, no relief can be extended to the petitioner as a petition against a private entity is not maintainable. Under these circumstances, this Court has no hesitation to hold that the writ petition against the Air Force School is not maintainable as the Air Force School does not fall under the definition of "State" under Article 12 of the Constitution of India. 14. Accordingly the writ petition is dismissed on the ground of maintainability.