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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

LPA No.258/2024

LPA No.260/2024

LPA No.261/2024

1. Shivali Sharma wife of Vijay Kumar resident

of near Head Post Office behind Bal Bharti of

Vidya Mandi School, Udhampur.

2 Mrs Meena Kumari wife of Arjun Singh

resident of Chack Rakhwala Udhampur

3. Mrs Ambica Sharma daughter of Parshotam

Kumar resident of Omara Morh Near Santoshi

Mata Mandir Udhampur

4. Miss Vishaka daughter of Tilak Raj Thapa

resident of Indira Nagar Udhampur.

…Appellant(s)

Through: Mr.Aijaz Chowdhary Advocate.

vs.

1. Army Public School through its president

(AWES) Chief of Army Staff room No. B-30

ADG Staff Commission South Block Integrated

Headquarter of Ministry of Defence New Delhi.

2. Army Public School through its Managing

Director (AWES) Building No. 202 Shanker Vihar

Delhi Cantonment New Delhi

3. Army Public school Udhampur through its

Patron GOC in C Headquarter Northern

Command care of 56 APO Udhampur

4. Army Public school through its Chairman

(SMAC) Brigadier CDR TA GP HQ Northern

Commanda 71Sub Area care of 56 APO

5. Army Public School Udhampur through its

Principal P.O PTA T Morh Udhampur.

Through: Mr. Vishal Sharma DSGI.

Mr. Vikas Sharma Advocate.

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CORAM:

HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI JUDGE

J U D G M E N T

Sanjeev Kumar, J

LPA No. 258/2024

1 This intra-Court appeal by the appellants arises out of an order

and judgment dated 22.10.2024, passed by a learned Single Judge of this

Court [“the writ Court”] in WP(C) No. 533/2024 whereby the Writ Court

has declined to entertain the writ petition filed by the appellants under

Article 226 of the Constitution of India, on the ground that the Army

Welfare Education Society (AWES) does not qualify to be a “State” and that

the relationship between the Society and its teachers constitutes a private

contract. Consequently, in terms of the judgment impugned (supra), the writ

petition filed by the appellants has been dismissed.

2 Before we advert to the grounds of challenge urged by

Mr. Aijaz Chowdhary, learned counsel appearing for the appellants, to assail

the impugned judgment, passed by the Writ Court, we deem it appropriate to

briefly notice the controversy which was raised in the writ petition filed

before the Writ Court.

3 The appellants herein, who were the writ petitioners before the

writ Court, came to be appointed as TGTs/PGTs in different subjects in the

Army Public School, Udhampur pursuant to a selection process conducted

by the respondents, in terms of the Advertisement Notification dated

16.03.2022. The appellants were placed on probation for a period of two

years. However, their probation was neither extended, nor were they

confirmed on the posts to which they stood appointed pursuant to the regular

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selection process. Resultantly, they were terminated from service. The

respondents invoked Article 132(C) of the Red Book of the Army Welfare

Education Society (AWES) Rules and Regulations to discontinue the

services of the appellants after 31.03.2024.

4 Feeling aggrieved, the appellants not only challenged their

termination orders issued by the Army Public School, Udhampur on

16.02.2024, but they also called in question Articles 132(B) and 132(C) of

the Red Book. The writ petition was opposed by the respondents, raising a

preliminary objection to its maintainability under Article 226 of the

Constitution. It was urged by the respondents that the Army Public Schools,

including Army Public School, Udhampur, are run by the Army Welfare

Education Society [“AWES”], which is not a “State” within the meaning of

Article 12 of the Constitution, and, therefore, not amenable to the writ

jurisdiction of the High Court. It was also contended before the writ Court

that the service disputes between the Society and its employees fall within

the realm of law and, therefore, the action of the Society complained of by

the appellants is not amenable to the writ jurisdiction of the High Court.

5 The writ Court, after considering the rival contentions,

identified the following three issues for consideration:

(i) Does the Army Welfare Education Society qualify as a

„State‟ as defined in Article 12, thereby allowing for a writ to be

filed under Article 226 of the Constitution ?

(ii) Can a private contract between AWES and the Teachers be

enforced by writ jurisdiction ?

(iii) Were the respondents justified in terminating the services

of the petitioners given the unique facts and circumstances of

the case, particularly in light of the absence of any adverse

findings against the petitioners, who had successfully completed

their probation period in accordance with the AWES Rules.

6 The writ Court, after dealing with the aforesaid issues at

considerable length and analyzing the arguments of the learned counsel

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appearing for the parties in light of the settled legal position, came to the

conclusion that the writ petition under Article 226 of the Constitution for

enforcement of a service contract between AWES and the appellants was not

maintainable. The writ Court accepted the preliminary objection raised by

the respondents and dismissed the writ petition.

7 The impugned judgment is challenged by the appellants on the

ground that the writ Court has failed to correctly appreciate the import of the

judgment passed by the Supreme Court in Army Welfare Education

Society, New Delhi vs. Sunil Kumar Sharma and others, 2024 SCC

OnLine SC 1683.

8 Mr. Aijaz Chowdhary, learned counsel for the appellants, would

argue that the Army Public School, Udhampur is, though being run by the

Army Welfare Education Society is nonetheless imparting education which

is a public duty and, therefore, the decisions of AWES are subject to judicial

review under Article 226 of the Constitution of India. He took us to the

entire judgment of the Supreme Court in Army Welfare Education

Society’s case (supra) to draw a distinction between the case which was

under consideration before the Supreme Court and the case on hand before

us. Learned counsel appearing for the appellants would also argue that the

writ Court has failed to apply the „doctrine of legitimate

expectation‟ as the Army Public School performs public function and,

therefore, the respondents cannot be allowed to breach a promise or deviate

from a consistent past practice without any reasonable basis.

9 Having heard learned counsel for the parties and perused the

material on record, we are of the considered opinion that the issue with

regard to the maintainability of a writ petition under Article 226 of the

Constitution of India against the impugned orders of termination issued by

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the Army Public School, Udhampur, is no more rest integra. With regard to

the controversy involving AWES, which was the subject matter of

consideration in Army Welfare Education Society’s case (supra), the

Supreme Court framed two questions for consideration:

“(i) 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?

(ii). 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?

10 After an extensive discussion and having regard to the judicial

precedents on the point available, the Supreme Court, in paragraphs (38),

(41) and (42) of its judgment, concluded as under:

“38. In one of the recent pronouncements of this Court in the

case of St. Mary‟s Education Society & Anr. v. Rajendra Prasad

Bhargava & Ors. reported in (2023) 4 SCC 498, to which one

of us (J.B. Pardiwala, J.) was a member, the entire law on the

subject has been discussed threadbare. In the said case, this

Court held that while a private unaided minority institution

might be touching the spheres of public function by performing

a public duty, its employees have no right of invoking the writ

jurisdiction of the High Court under Article 226 of the

Constitution in respect of matters relating to service where they

are not governed or controlled by the statutory provision.

41. The final conclusion drawn in the said decision is

reproduced herein:-

“75. We may sum up our final conclusions as under:-

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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. 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

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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.

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.

76. In view of the aforesaid discussion, we hold that the

learned Single Judge of the High Court was justified in

taking the view that the original writ application filed by

Respondent 1 herein under Article 226 of the Constitution

is not maintainable. The appeal court could be said to

have committed an error in taking a contrary view.

“42. In view of the aforesaid, nothing more is required to be

discussed in the present appeals. We are of the view that the

High Court committed an egregious error in entertaining the

writ petition filed by the respondents herein holding that the

appellant society is a “State” within Article 12 of the

Constitution. Undoubtedly, the school run by the Appellant

Society imparts education. Imparting education involves public

duty and therefore public law element could also be said to be

involved. However, the relationship between the respondents

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herein and the appellant society is that of an employee and a

private employer arising out of a private contract. If there is a

breach of a covenant of a private contract, the same does not

touch any public law element. The school cannot be said to be

discharging any public duty in connection with the employment

of the respondents”.

11 Relying upon the aforesaid judgment, the writ Court found no

public law element involved in the discharge of functions by AWES vis a

vis passing of impugned order of termination against the appellants.

12 It is trite law that a petition under Article 226 of the

Constitution is maintainable even against a person or a body discharging

public duties or public functions. Such a public duty or public function may

arise either from statutory provisions or otherwise. If the duty imposed on a

person or a body is other than statutory, it is required to be shown that such a

body or person owes a duty or obligation to public, involving a public law

element.

13 It is equally true that while a body may be discharging a public

function or performing a public duty, rendering its actions amenable to

judicial review under Article 226 of the Constitution, its employees would

not have right to invoke the writ jurisdiction of the High Court in respect of

matters relating to their service where their services are governed by a

private contract rather than statutory. Undoubtedly, the functions of

educational institutions include the imparting of education would constitute

a public function or duty. Any action taken by such an authority in

performance of its public duty is open to judicial review under Article 226 of

the Constitution. However, its actions and decisions which fall purely within

the confines of an ordinary contract of service, having no statutory force or

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binding effect, are beyond the scope of judicial review by the High Court

under Article 226 of the Constitution.

14 From the pleadings in the writ petition and the nature of the

controversy involved, we find that the action of the respondent-Society in

not extending the period of probation of the appellants and terminating their

services during probation is not taken under any statutory provision. The

relationship between the respondent-society and the appellants is governed

by a private contract of service, involving no public law element. The

employment of teachers and other staff in schools managed and controlled

by the Army Welfare Education Society has no direct relation with the

public duty of imparting education performed by these institutions.

15 The other plea taken by the learned counsel for the appellants,

based on the „principle of legitimate expectation‟, is equally devoid of any

merit and cannot be accepted. The „doctrine of legitimate expectation‟ can

only be enforced against the State or its instrumentalities and not against a

private body, more particularly when such a body is not acting under any

statute. This issue has also been elaborately dealt with by the Supreme Court

in Army Welfare Education Society’s case (supra). Para (48) of the

judgment is relevant and is reproduced herein-below:

“48. A reading of the aforesaid decisions brings forth the

following features regarding the doctrine of legitimate

expectation:

a. First, legitimate expectation must be based on a right as

opposed to a mere hope, wish or anticipation;

b. Secondly, legitimate expectation must arise either from

an express or implied promise; or a consistent past practice

or custom followed by an authority in its dealings;

c. Thirdly, expectation which is based on sporadic or casual

or random acts, or which is unreasonable, illogical or

invalid cannot be treated as a legitimate expectation;

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d. Fourthly, legitimate expectation operates in relation to

both substantive and procedural matters;

e. Fifthly, legitimate expectation operates in the realm of

public law, that is, a plea of legitimate action can be taken

only when a public authority breaches a promise or deviates

from a consistent past practice, without any reasonable

basis.

f. Sixthly, a plea of legitimate expectation based on past

practice can only be taken by someone who has dealings, or

negotiations with a public authority. It cannot be invoked by

a total stranger to the authority merely on the ground that

the authority has a duty to act fairly generally”.

16 The position of law has been clearly enunciated by the Supreme

Court, leaving no scope for any further debate. „Legitimate expectation‟ as is

held by the Supreme Court operates within the realm of public law, meaning

that a plea of legitimate expectation can only be taken when a public

authority breaches a promise or deviates from its consistent past practice

without any reasonable basis.

17 Adverting to the case on hand, it is no more res integra that

imparting of education by a private educational institution may be

considered as a public function. However, the relationship between the

management of such an institution and its employees remains contractual,

falling within the ambit of private law. The „doctrine of legitimate

expectation‟ has no applicability in respect of a relationship which is

governed by private law i.e law of contract, as in the instant case.

18 Viewed from any angle, the action of the respondent-Society

impugned in the writ petition, is not amenable to judicial review under 226

of the Constitution. The writ Court has rightly concluded that the writ

petition filed by the appellants against the respondents, essentially seeking

enforcement of a private contract of service, was not maintainable. We fully

concur with the view taken by the writ Court and, as a result, find no merit in

this appeal.

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19 For the foregoing reasons, this appeal is devoid of merit and the

same is, accordingly, dismissed. Consequently, the impugned judgment

passed by the writ Court is upheld.

LPA NO.260/2024 & LPA NO. 261/2024

The decision rendered in LPA No. 258/2024 shall govern

the disposal of these appeals, as they involve an identical point. The appeals

are dismissed.

Interim directions, if any, issued in all the appeals shall stand

vacated.

Registry to place a copy of this judgment in all the appeals.

(MOKSHA KHAJURIA KAZM I) (SANJEEV KUMAR)

JUDGE JUDGE

Jammu

12.03.2025.

Sanjeev

Whether judgment is reportable:Yes