[2024] 7 S.C.R.

2176 : 2024 INSC 501

Army Welfare Education Society New Delhi

v.
Sunil Kumar Sharma & Ors. Etc.
(Civil Appeal Nos. 7256-7259 of 2024)
09 July 2024
[J.B. Pardiwala* and Manoj Misra, JJ.]

Issue for 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.

Headnotes†
Constitution of India – Art.12 and Art.226 – A service dispute
in the private realm involving a private educational institution
(Army Welfare Education Society) and its employees – Whether
appellant-Army Welfare Education Society is a “State” within
Art.12 – The High Court held that appellant society is a “State”
within Art.12 of the Constitution – Correctness:
Held: High Court committed an egregious error in entertaining
the writ petition filed by the respondents-employees 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
herein and the appellant society is that of an employee and a
private employer arising out of a private contract – If there is a
* Author
[2024] 7 S.C.R.  2177

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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. [Para 42]
Constitution of India – In the instant case, 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:
Held: It was held in St. Mary’s Education Society & Anr. v. Rajendra
Prasad Bhargava & Ors. that merely because a writ petition can
be maintained against the private individuals discharging the
public duties and/or public functions, the same should not be
entertained if the enforcement is sought to be secured under the
realm of a private law – It would not be safe to say that the moment
the private institution is amenable to writ jurisdiction then every
dispute concerning the said private institution is amenable to writ
jurisdiction – It largely depends upon the nature of the dispute
and the enforcement of the right by an individual against such
institution – The right which purely originates from a private law
cannot be enforced taking aid of the writ jurisdiction irrespective of
the fact that such institution is discharging the public duties and/or
public functions – The scope of the mandamus is basically limited
to an enforcement of the public duty and, therefore, it is an ardent
duty of the court to find out whether the nature of the duty comes
within the peripheral of the public duty – There must be a public
law element in any action – In the instant case, the relationship
between the respondents 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. [Paras 38, 39, 40, 42]
Doctrine/Principles – Doctrine of Legitimate Expectation –
The respondents contended that they were under a legitimate
expectation that their service conditions and salary would
not be unilaterally altered by the appellant society to their
disadvantage – Thus, as the respondents were neither
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consulted with nor taken in confidence by the appellant society

before effecting the changes in their service conditions,
it amounted to a breach of their legitimate expectation, thereby
making it a fit case for the exercise of writ jurisdiction by the
High Court:
Held: The following are features regarding the doctrine of legitimate
expectation: First, legitimate expectation must be based on a
right as opposed to a mere hope, wish or anticipation; 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; 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;
Fourthly, legitimate expectation operates in relation to both
substantive and procedural matters; 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; 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 – It is clear that legitimate
expectation, jurisprudentially, was a device created in order to
maintain a check on arbitrariness in state action – It does not
extend to and cannot govern the operation of contracts between
private parties, wherein the doctrine of promissory estoppel
holds the field – In the instant case, the relationship between
the administration of an institution and its employees remains a
contractual one, falling within the ambit of private law – Nothing
has been placed on record by the respondents to show that any
express or implied promise was made by the appellant regarding
keeping their salary and service conditions intact – There is no
statutory obligation on the appellant society which requires that
the salaries and allowances of the respondents are to be kept at
par with what is payable to teachers of Government institutions –
Lastly, the appellant society, for the purposes of its relationship
with its employees, cannot be regarded as a public or Government
authority – For all the aforesaid reasons, the doctrine of legitimate
expectation will have no applicability to the facts of the present
case. [Paras 48, 49, 50, 51, 52]
[2024] 7 S.C.R.  2179

Army Welfare Education Society New Delhi v.

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Case Law Cited

St. Mary’s Education Society & Anr. v. Rajendra Prasad Bhargava
& Ors. [2022] 8 SCR 301 : (2023) 4 SCC 498; Union of India v.
Hindustan Development Corporation [1993] 3 SCR 128 : (1993)
3 SCC 499; Ram Pravesh Singh v. State of Bihar [2006] Supp. 6
SCR 512 : (2006) 8 SCC 381; Jitender Kumar v. State of Haryana
[2007] 13 SCR 98 : (2008) 2 SCC 161 – relied on.
Army School, Kunaraghat, Gorakhpur v. Smt. Shilpi Paul (2004)
5 AWC 4934; Executive Committee of Vaish Degree College v.
Lakshmi Narain [1976] 2 SCR 1006 : (1976) 2 SCC 58 : AIR
1976 SC 888; J. Tiwari v. Jawala Devi Vidya Mandir (1979) 4
SCC 160; Dipak Kumar Biswas v. Director of Public Instruction
[1987] 2 SCR 572 : (1987) 2 SCC 252; Tekraj v. Union of India
[1988] 2 SCR 260 : (1988) 1 SCC 236; Shri Anadi Mukta Sadguru
Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak
Trust & Ors. v. V. R. Rudani & Ors. [1989] 2 SCR 697 : (1989)
2 SCC 691; K. Krishnamacharyulu & Ors. v. Sri Venkateswara
Hindu College of Engineering & Anr. [1997] 2 SCR 368 : (1997)
3 SCC 571; Satimbla Sharma v. St. Paul’s Senior Secondary
School [2011] 10 SCR 203 : (2011) 13 SCC 760; Regina v. St.
Aloysius Higher Secondary School [1971] Supp. 1 SCR 6 : (1972)
4 SCC 188 : AIR 1971 SC 1920; Binny Ltd. v. V. Sadasivan [2005]
Supp. 2 SCR 421 : (2005) 6 SCC 657; Apollo Tyres Ltd. v. C.P.
Sebastian [2009] 7 SCR 336 : (2009) 14 SCC 360; K.K. Saksena
v. International Commission on Irrigation & Drainage [2014] 14
SCR 892 : (2015) 4 SCC 670; G. Bassi Reddy v. International
Crops Research Institute [2003] 1 SCR 1174 : (2003) 4 SCC
225; Praga Tools Corpn. v. C.A. Imanual [1969] 3 SCR 773 :
(1969) 1 SCC 585; Federal Bank Ltd. v. Sagar Thomas [2003]
Supp. 4 SCR 121 : (2003) 10 SCC 733; Janet Jeyapaul v. SRM
University [2015] 10 SCR 1049 : (2015) 16 SCC 530; Committee
of Management, Delhi Public School v. M.K. Gandhi (2015) 17 SCC
353; Trigun Chand Thakur v. State of Bihar (2019) 7 SCC 513;
S.K. Varshney v. Principal, Our Lady of Fatima Higher Secondary
School (2023) 4 SCC 539; Vidya Ram Misra v. Shri Jai Narain
College [1972] 3 SCR 320 : (1972) 1 SCC 623 : AIR 1972 SC 1450;
T.M.A. Pai Foundation v. State of Karnataka [2002] Supp. 3 SCR
587 : (2002) 8 SCC 481; Ahmedabad St. Xavier’s College Society
v. State of Gujarat [1975] 1 SCR 173 : (1974) 1 SCC 717; Unni
Krishnan, J.P. v. State of A.P. [1993] 1 SCR 594 : (1993) 4 SCC 111;
2180 [2024] 7 S.C.R.

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Sushmita Basu v. Ballygunge Siksha Samity [2006] Supp. 6 SCR

506 : (2006) 7 SCC 680; Ramakrishna Mission v. Kago Kunya
[2019] 5 SCR 452 : (2019) 16 SCC 303 – referred to.
Roychan Abraham v. State of U.P., AIR 2019 All 96; Uttam Chand
Rawat v. State of U.P. (2021) 6 ALL LJ 393 (FB); Anita Verma v.
D.A.V. College Management Committee, Unchahar, Rai Bareilly
(1992) 1 UPLBEC 30 – referred to.

List of Acts
Constitution of India.

List of Keywords
Article 12 of Constitution; State; Article 226 of Constitution;
Service dispute; Private Educational Institution; Public law element;
Army Welfare Education Society; Scope of mandamus; Enforcement
of public duty; Breach of a covenant of a private contract; Doctrine
of Legitimate Expectation; Private contract; Doctrine of promissory
estoppel; Judicial review.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7256-7259 of
2024
From the Judgment and Order dated 02.11.2018 in SPA No. 524 of
2014 in WPSS No. 439 of 2015 in WPMS No. 776 of 2015 in SPA
No. 128 of 2015 and dated 09.10.2020 in RA No. 1623 of 2018 of the
High Court of Uttarakhand at Nainital
With
Civil Appeal Nos. 7260-7264 of 2024
Appearances for Parties
Naresh Kaushik, Sr. Adv., Abhinav Agrawal, Kartik Sharma, Vardhman
Kaushik, Anand Singh, Manoj Joshi, Shubham Dwivedi, Advs. for
the Appellant.
Navin Pahwa, Sridhar Potaraju, Sr. Advs., B. Shravanth Shanker,
Aayush, Rajat Srivastava, Lalit Mohan, Rahul Jajoo, Ms. Grahita
Agarwal, Ms. Manju Jetley, Ms. Pankhuri Shrivastava, Ms. Neelam
Sharma, Rajeev Sharma, Advs. for the Respondents.
[2024] 7 S.C.R.  2181

Army Welfare Education Society New Delhi v.

Sunil Kumar Sharma & Ors. Etc.

Judgment / Order of the Supreme Court

Judgment
J.B. Pardiwala, J.
For the convenience of exposition, this judgment is divided into the
following parts:
INDEX*
A. FACTUAL MATRIX..................................................................... 2
B. ISSUES FOR DETERMINATION............................................... 8
C. SUBMISSIONS ON BEHALF OF THE APPELLANT................ 9
D. SUBMISSIONS ON BEHALF OF THE RESPONDENTS......... 14
E. JUDGMENT PASSED BY THE LEARNED SINGLE JUDGE.. 17
F. APPEAL COURT JUDGMENT.................................................. 23
G. ANALYSIS.................................................................................. 26
i. Position of Law.................................................................. 30
ii. Doctrine of Legitimate Expectation................................. 83
H. CONCLUSION............................................................................ 90

1. Leave granted.
2. Since the issues raised in both the captioned appeals are the same
and the challenge is also to the self-same judgment and order passed
by the High Court of Uttarakhand, those were taken up for hearing
analogously and are being disposed of by this common judgment
and order.
A. FACTUAL MATRIX
3. These appeals arise from the common judgment and order passed
by the High Court of Uttarakhand at Nainital dated 02.11.2018 in
Special Appeal No. 523 of 2014, Special Appeal No. 524 of 2014,
Special Appeal No.128 of 2015, Writ Petition No. 439 of 2015 and Writ
Petition No. 776 of 2015 resply by which the High Court dismissed
the appeals filed by the appellants herein and thereby affirmed the
judgment and order passed by the learned single Judge of the High
Court dated 05.08.2014 in Writ Petition No. 341 of 2012 filed by the
respondents herein.

* Ed. Note: Pagination as per the original Judgment.

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4. The controversy involved in the present litigation falls within a very

narrow compass. We need not state the facts in detail as the order
passed by a coordinate Bench of this Court dated 15.02.2021 speaks
for itself and gives more than a fair idea as regards the dispute
between the parties. The order dated 15.02.2021 reads thus:-
“1. Delay condoned.
2. We have heard Mr Sajan Poovayya, learned Senior
Counsel appearing on behalf of the Bengal Engineering
Group and Centre, the petitioner in the Special Leave
Petitions arising out of SLP (C) Diary No 24505 of 2020,
with Mr Abhinav Agrawal, learned counsel, Mr Naresh
Kaushik, learned counsel appearing on behalf of Army
Welfare Education Society1, petitioner in the Special
Leave Petition arising out of SLP(C) Diary No 26155 of
2020 and Mr Gopal Sankaranarayanan, learned Senior
Counsel appearing on behalf of the caveators.
3. The submission which has been urged by the learned
counsel appearing on behalf of the petitioners is that the
Bengal Engineering Group and Centre had entered into
a lease agreement with the Institute of Brothers of St.
Gabriel in respect of the land, which is a B-3 class land
under the Cantonment. A School was being conducted by
St Gabriel’s Academy. After the term of the lease came to
an end, a decision was taken to run a school under the
auspices of AWES. AWES runs about 139 schools all over
the country. On 28 February 2012, a letter was addressed
to the staff of the school indicating that those among the
teachers who are eligible in terms of CBSE guidelines
would be considered for appointment on ad hoc basis
for one year and would have to appear and qualify in a
written test under AWES Rules and the teachers will be
paid salary at par with the service conditions applicable
to other teachers of the Army Public Schools. This gave
rise to the filing of a writ petition before the High Court of
Uttarakhand. The Single Judge allowed the writ petition
by issuing a mandamus to the petitioners not to vary the
service conditions of the teaching and nonteaching staff to
their disadvantage. During the pendency of the proceedings
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Army Welfare Education Society New Delhi v.

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before the Division Bench in appeal, an order was passed

by the High Court on 6 January 2016. Paragraphs 3 and 4
of the order read as follows:
“3. BEG has decided to run the institution as an
Army School under the Army Welfare Education
Society (AWES), which has also come up in
appeal against the judgment. According to
AWES, it is running 134 schools all over India.
They have a complaint that, at present, for the
past two years since 1st April 2012, they are
collecting fees at the rates they are collecting
in the other Army Public Schools and, yet, they
have been compelled to pay the salary, which
is being paid to the teachers earlier by St.
Gabriel’s, which was in fact collecting far more
fees and there is a huge deficit. According to
them, they will not terminate the services of
the teachers and non-teaching staff, if AWES
is permitted to take over; but, they will be paid
the salary in terms of the standards, which
they have in respect of the other Army Public
Schools. It is their case that they are prepared
to allow the teachers and non-teaching staff to
continue, provided some modalities are complied
with, relevance of which may not present itself
immediately. According to the teachers and
non-teaching staff, they have a right to continue
as such.
4. We would think that the interest of justice
requires that the arrangement, which has been
ordered by the Court in Writ Petition No. 776
of 2015 (M/S) must be modified. Accordingly,
we modify the order and direct that AWES
can take over the management of the school
and the teaching and other non-teaching staff
will be allowed to continue, however, with
the modification that the pay will be such as
they would be entitled to treating it as another
Army Public School. This arrangement will
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be provisional and subject to the result of the

litigation and without prejudice to the contentions
of the parties. The Committee will handover the
management to the AWES upon production of
a certified copy of this order. The accounts,
etc., will also be handed over to the Principal
of the school. We record the submission of the
learned counsel appearing for St Gabriel’s that
they will handover the amount representing
gratuity, earned leave encashment and the
installment of the sixth pay commission directly
to the teachers and other nonteaching staff. We
make it clear that the school can be run in terms
of the Rules of AWES otherwise. The payment
of salary as per AWES can commence from 1st
January, 2016.”
4. The Division Bench eventually dismissed the Special
Appeal against the judgment of the Single Judge, which
has given rise to the proceedings before this Court under
Article 136 of the Constitution.
5. On behalf of the petitioners, it was submitted that the
teaching and nonteaching staff were employees of St
Gabriel’s Academy and since the erstwhile management
has ceased to conduct the school, the staff would have
no claim as against AWES which is conducting the school,
at present.
6. In order to resolve the dispute, a suggestion has been
made by learned counsel for the petitioners to the effect
that the teaching and non-teaching staff of the erstwhile
school which is continuing with the present school, which is
conducted by AWES, would be continued on a permanent
basis. However, it has been submitted that their conditions
of service will be those which are applicable to the
teaching and non-teaching staff of Army Public Schools.
It has been submitted that under the judgment of the High
Court the petitioners would be obligated to provide service
conditions at par with the teaching and nonteaching staff
which was recruited by the erstwhile management which
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would involve an outlay which the Army Public School will

not be in a financial position to meet. That apart, it has
been submitted that there cannot be two sets of service
conditions in respect of the same school.
7. Responding to the above submissions, Mr Gopal
Sankaranarayanan with Mr B Shravanth Shanker, learned
counsel, submitted that there are two areas which would
require to be resolved, namely,:
(i) Seniority of the teaching and non-teaching
staff due to the past service should be taken
into account; and
(ii) In computing their terminal dues, benefit of
the past service should be taken into reckoning.
8. We find prima facie that the suggestions which have
emerged from both the sides are fair and proper in their
own way, in order to resolve the dispute amicably. If the
dispute is eventually resolved amicably, it would be ensured
that, on the one hand, the teaching and non-teaching
staff of the erstwhile school would not be displaced and
continue to get employment in the present school and,
at the same time, their service conditions are at par with
those which are applicable to the employees of the Army
Public Schools.
9. In order to enable the Court to give the parties an
opportunity to resolve the dispute finally, we are of the
view that a meeting should be held between the concerned
authorities of the School as well as the representatives
of the employees in the presence of the learned Senior
Counsel so that agreed terms for resolving the dispute
finally can be presented before this Court.
10. To facilitate this, we stand over the proceedings by
a period of four weeks. The proceedings shall now be
listed on 22 March 2021. In the meantime, we request all
the parties to ensure that a meeting is convened within
a period of one week from today so that progress can
effectively be made towards a satisfactory resolution of
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the dispute in a spirit of dialogue in which the parties have

addressed the Court.
11. We direct that no further steps shall be taken in the
contempt proceedings till the next date of listing.
12. The services of the teaching and non-teaching staff
who are continuing in the management of the Army Public
School at Roorkee, at present, shall not be disturbed in
the meantime.”
5. It appears that after the aforesaid order was passed, the following
order dated 23.07.2021 came to be passed:-
“1. Issue notice.
2. Mr Gopal Sankaranarayanan, learned Senior Counsel,
appears on behalf of the first respondent with Mr B
Shravanth Shanker, learned counsel and waives service.
3. Pending further orders, we stay the operation of the
judgments and orders of the High Court dated 2 November
2018 in SPA Nos 523 and 524 of 2014, Writ Petition Nos
439 of 2015 and 776 of 2015 and SPA No 128 of 2015
and dated 9 October 2020 in MCC No 1623 of 2018 and
1626 of 2018, subject to the following conditions:
(i) The respondent – employees who are
presently in service shall continue to be on the
rolls of Army Public School No 2 conducted
by the Army Welfare Education Society1 at
Roorkee; and
(ii) The employees shall be entitled to receive
their emoluments and other conditions of
service at par with the other employees of the
corresponding grade who are engaged by the
AWES in Army Public School No 2.”
B. ISSUES FOR DETERMINATION
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
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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?
C. SUBMISSIONS ON BEHALF OF THE APPELLANT
7. Mr. Naresh Kaushik, the learned senior counsel appearing for the
appellant submitted that the respondents originally were employees
of an unaided private minority public school by the name St. Gabriel’s
Academy. As St. Gabriel’s Academy is no longer in existence, the
teaching and non-teaching staff of St. Gabriel’s Academy came to be
absorbed by the appellant society. In such circumstances, according
to the learned counsel, the writ petition filed by the respondents before
the High Court, by itself, was not maintainable. According to him,
the learned single Judge committed a serious error in entertaining
such writ petition at the instance of the respondents herein. Even
the appeal Court committed the same error.
8. It was further submitted that the appellant is a wholly unaided private
society which was established to provide educational facility to meet
the needs of the children of the army personnel including the widows
and ex-servicemen. It was pointed out that the appellant society is
running many schools and institutions and the entire finance for the
purpose of administration is managed from the fees collected from
the students of the respective school and institution.
9. It was argued that there was no privity of contract between the
appellant society and the staff of St. Gabriel’s Academy. It was also
argued that St. Gabriel’s Academy was being run and administered by
an unaided private minority society and the appointment/termination
of the staff was vested with the Brothers of St Gabriel’s only. Further,
the Provincial Superior of the Institute of Brothers of St. Gabriel’s
was the Chairman of School Management Committee (SMC) of St.
Gabriel’s Academy as well. The Provincial Superior of the Society is
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the appointing authority, as well as the appellate authority for the staff,
and can appoint/terminate/retire the staff, in their schools. Further,
the Provincial Superior of the Society used to be the Head of School
Managing Committee vested with the power to appoint/nominate
the members as per their rules and regulations. The appellant had
no role to play in the affairs of the said school or its management.
10. It was also argued that the education of children is certainly a public
function, but that is not the issue in the present matter. The only
issue involved is the continuity of service and service conditions of
employees of St. Gabriel’s Academy, a private minority institution.
Neither the institution nor the posts held by the teachers are governed
by any statutory obligation. Moreover, the burden of safeguarding
such service conditions has been erroneously placed on the appellant.
These service conditions are in clear contravention of those followed
by all 137 schools run by the appellant society resulting in creating
two sets of employees at the APS No. 2, Roorkee. A contract of
purely personal service between the Respondents and their erstwhile
employer, viz. St. Gabriels Academy cannot be executed against the
appellant in a writ petition with whom there is no privity of contract.
11. It was further pointed out that the appellants are running an Army
Public School under the aegis of the Army Welfare Education Society
which is a self-financing school managing all expenditures from the
school fees. It was submitted that if the impugned order is allowed
to operate and the arrangement made in the order dated 06.01.2016
which continued so far smoothly for 8 years is disturbed, the school
will suffer irreparable loss and might have to be closed down. The
demands of the respondents are outrageous which can be gauged
from the fact that the respondents have claimed an amount of
Rs. 5.10 crore in their Counter affidavit filed in 2021.
12. In the last, it was pointed out that all the respondents are currently
employed at APS No. 2, Roorkee, and their status is on par with
any other APS staff member. They are availing the same perks and
emoluments available to any APS No 2, Roorkee employee. The
basic pay as per the AWES Rules and Regulations was maintained
for the teaching staff in accordance with the recommendations
of the VI Pay Commission. Furthermore, for the members of the
teaching staff, experience of more than 5 years was accounted for
with additional increments at 3% of Basic Pay for every block of
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three years of service or part thereof, as of April 2012. Subsequently,

an annual increment of 3% of Basic Pay (as on March 31 of every
financial year) was provided for every completed year. Dearness
Allowance (DA), House Rent Allowance (HRA), and all other
applicable allowances, including free education for the wards of
staff, was considered as per the AWES Rules and Regulations, as
prevailing in January 2016. The salary of office and Class IV staff
was fixed as per the prevailing rules and seniority was catered to
by additional increments at 10% of the annual increment for every
three years of service. No employee came to be appointed after 2012
drawing a higher salary than the respondents. These staff members
have been given even ten to twelve increments, a practice usually
not followed in APS 2.
13. In such circumstances referred to above, the learned counsel
appearing for the appellant society submitted that there being merit
in the appeals, those may be allowed by setting aside the impugned
common judgment and order passed by the High Court. But at the
same time, the interim order passed by this Court dated 15.02.2021
may be made absolute.
D. SUBMISSIONS ON BEHALF OF THE RESPONDENTS
14. On the other hand, these appeals have been vehemently opposed
by the learned senior counsel appearing for the respondent by
submitting that the no error, not to speak of any error of law, could
be said to have been committed by the High Court in passing the
impugned judgment and order. Accordingly to the learned counsel,
the appellant society is a “State” within Article 12 of the Constitution
for the following reasons:-
a) That, as per the amendments made to the Memorandum of
Army Welfare Education Society, the address of the Army
Welfare Education Society (AWES) is shown to be the Adjutant
General’s Branch in the Integrated headquarters of the Ministry
of Defence [MoD] (Army).
b) Further, the Executive Committee and the Board of Governors
i.e., the President, Vice President and the Secretaries are none
other than the Lt. Generals, chief of the Army Staff, and General
Officer commanding in-chief of the Eastern, Southern, Western
and Northern commands.
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c) That, as per the Financial Management clause of the said

Memorandum, “the corpus and grants for establishment
of Army educational institution will be provided by the
executive Committee from the welfare funds of the Adjutant
General Branch, Army Headquarters.”
d) AWES is a government run institution i.e., by the Ministry of
Defence and hence, a State under Article 12 of the Constitution
of India.
15. It was further submitted that the Army Public School-2, Roorkee, is
affiliated with the CBSE and is governed by its norms. In other words,
the AWES and its affiliate school - Army Public School-2, Roorkee
are governed and regulated by statutory provisions. Assuming for the
sake of arguments that the dispute is private in nature, the present
case is still amenable to writ jurisdiction for the service conditions
of the answering respondents are governed/regulated by statutory
provisions.
16. It was further argued that the CBSE Affiliation Bye-Laws
Norm 3 (v) categorically provides that “The school in India must
pay salaries and admissible allowances to the staff not less
that the corresponding categories of employees in the State
Government schools or as per scales etc. prescribed by the
Government of India.” In fact, AWES publishes advertisement to
fill up any vacancy in Army Public School as “Govt. Jobs” in Job’s
category. It was submitted that considering the alliance between the
appellant and St. Gabriel’s Academy Roorkee, the respondents were
under a legitimate expectation that their conditions of service would
not be changed to their disadvantage by the appellant.
17. In such circumstances referred to above, the learned counsel
appearing for the respondents prayed that there being no merit in
the appeals, those may be dismissed and the impugned judgment
and order passed by the learned single Judge as affirmed in appeal
may be given effect to.
E. JUDGMENT PASSED BY THE LEARNED SINGLE JUDGE
18. At this stage, we should also look into the judgment passed by
the learned single judge of the High Court dated 05.08.2014. The
relevant findings recorded by the learned single Judge is as under:-
[2024] 7 S.C.R.  2191

Army Welfare Education Society New Delhi v.

Sunil Kumar Sharma & Ors. Etc.

“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
2192 [2024] 7 S.C.R.

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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.
We have also considered the decision of
the learned single judge of this Court in Abu
[2024] 7 S.C.R.  2193

Army Welfare Education Society New Delhi v.

Sunil Kumar Sharma & Ors. Etc.

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
2194 [2024] 7 S.C.R.

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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.”
x x x x
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. In fact 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 14 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
[2024] 7 S.C.R.  2195

Army Welfare Education Society New Delhi v.

Sunil Kumar Sharma & Ors. Etc.

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 15 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.”
(Emphasis supplied)
19. Thus, the error is in para 27 when the learned single Judge says
that since the school imparts education, the public element should
be kept in mind. Undoubtedly, any institution imparting education
discharges public duty and, therefore, public element may be involved.
However, the learned single Judge overlooked the fact that the dispute
between the school and the teachers and also the non-teaching staff
is relating to their service conditions. In such circumstances, public
element will not come into play.
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F. APPEAL COURT JUDGMENT

20. We should also look into the impugned judgment and order passed
by the Division Bench of the High Court affirming the above referred
judgment of the learned single Judge. The relevant findings are as
under:-
“16) The Parliament in its wisdom has enacted the Right
of Children to Free and Compulsory Education Act, 2009,
considering it as a fundamental right of children. The
institution is affiliated to the Central Board of Secondary
Education. The Central Government has accorded affiliation
to the CBSE to impart education as per its syllabus. Thus,
there is a discharge of public function of the institutions
recognized and affiliated with CBSE. Though the learned
Single Judge has recorded the reasons in holding that
the writ petition is maintainable against the appellant but,
at the cost of repetition, we deem it necessary to deal
with the issue and after having considered the provisions
of Article 12 and 226 of the Constitution of India and the
catena of judgments, we are of considered opinion that
the writ petition against the appellant was maintainable
and has rightly been held maintainable by the learned
Single Judge.
17) Second issue before the learned Single Judge and
this Court is - as to whether the cancellation of regular
appointment of the teaching and non-teaching employees
of the institution run by joint venture and giving the ad
hoc appointment to the teachers is valid or not? The
learned Single Judge on the pleadings of the parties and
considering the fact that long back in the year 1967 created
a joint venture for imparting the education and continued
till 2012 and the appellant by unilateral action decided
to break up the joint venture. The institute of brothers of
St. Gabriel did not challenge their unilateral action, and
departed quietly.
18) Admittedly, the appellant herein has unilaterally
changed the service conditions of the writ petitioners
by way of letter dated 28.02.2012 (copy Annexure 6 to
the writ petition). A perusal of the pleadings of the rival
[2024] 7 S.C.R.  2197

Army Welfare Education Society New Delhi v.

Sunil Kumar Sharma & Ors. Etc.

parties would reveal that the appellant herein as well as

the respondent Bengal Engineering Group and Center
were not a party before learned Single Judge. The Deputy
Commandant of the Bengal Engineering Group and Center
is the de facto Chairman of the Bengal Engineering Group
Benevolent Trust. The Union of India was also impleaded
as a party respondent. The Commandant or the Deputy
Commandant has no individual or personal capacity.
Deputy Commandant has discharged his duties as de
facto Chairman of the Bengal Engineering Group and
Benevolent Trust (hereinafter referred to as Benevolent
Trust). The Deputy Commandant has no independent
power being an ex officio of the Benevolent Trust. The
Deputy Commandant cannot work arbitrarily. Since the
appellant and respondent Bengal Engineering Group
Benevolent Trust were party and same relief was granted,
the Bengal Engineering Group Benevolent Trust has not
chosen to file the Special Appeal against the impugned
judgment and order passed by learned Single Judge. It
is true that the appellant being a Society has preferred
this Special Appeal, but it was the decision of respondent
no. 51 to issue letter dated 28.02.2012 (copy Annexure 6
to the writ petition). The service conditions of the teaching
staff and non-teaching staff, which were continuing before
terminating the legality of Institute of Brothers of St. Gabriel
and taking over the entire management of the Institution
by the Bengal Engineering Group Benevolent Trust. The
learned Single Judge has considered elaborately that the
Benevolent Trust cannot change the service condition
unilaterally and convert the regular services of the teaching
and non-teaching staff and to issue ad hoc appointments
to them. The appeal has been preferred by Army Welfare
Education Society, whereof the institution was a joint
venture of Brother of St. Gabrial and Bengal Engineering
Group Benevolent Trust. The appellant may be an apex
body (society) running the Army Schools throughout the
country, but it cannot escape from the noble idea of creating
Bengal Engineering Group Benevolent Trust for imparting
education. Service benefits and status of the employee/
2198 [2024] 7 S.C.R.

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employees could not be reduced without assigning sound

reasons by the employer and without affording opportunity
of hearing to them. We are also of the view that the services
of the teaching and non- teaching staff cannot be changed
from regular services to ad hoc services.
19. We have noticed that the Bengal Engineering Group
Benevolent Trust is the aggrieved party, but appeal has
not been preferred by it. We are of the opinion that the
appellants cannot be said to be aggrieved persons and
appeal at their behest is not maintainable.
20) The affairs of Bengal Engineering Group and Center
come within the control of the Ministry of Defence, Union
of India. Deputy Commandant has no authority to engage
a private lawyer without the permission of Union of India.
The purpose of granting permission to engage a private
lawyer is also a serious issue, but for the reasons best
reason to the officer concerned a private lawyer has been
appointed by the appellant herein, which is discharging a
public duty, to contest the aforementioned matters. Deputy
Commandant of Bengal Engineering Group and Center
holding a post in the Indian Army, which comes within the
control of Ministry of Defence, Union of India ought not
to have engaged a private lawyer without permission of
the Union of India.
21) We find no illegality, perversity or jurisdiction error
in the impugned judgment passed by learned Single
Judge dated 05.08.2012, allowing the writ petition, filed
by the teaching and non- teaching staff of the Institution.
Since the record of the writ petitions which were pending
before the learned Single Judge were called by this
Court considering the common question involved in the
special appeals as well as in the writ petitions which
were pending before the learned single judge, we are of
the view that aforementioned special appeals are liable
to be dismissed. The same are hereby dismissed. The
writ petitions mentioned aforesaid are also disposed of
accordingly as the relief sought in the writ petitions has
already been adjudicated in the appeals.”
[2024] 7 S.C.R.  2199

Army Welfare Education Society New Delhi v.

Sunil Kumar Sharma & Ors. Etc.

G. ANALYSIS
21. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that
falls for our consideration is whether the High Court was justified in
entertaining the writ petition filed by the respondents herein under
Article 226 of the Constitution against the appellant society?
22. From the materials on record, the following is discernible:-
1) In 1962, the Commandant of Bengal Engineering Group and
Centre (“BEGC”), by virtue of his position as ex officio Chairman
of the Bengal Engineering Group Benevolent Trust (“BEGBT”)
granted land to the Institute of Brothers of St Gabriel’s (“IBSG”),
an unaided private minority society, for running a school.
2) On 13.07.1967, the BEGBT executed a formal lease agreement
with IBSG with respect to the land situated at Cantonment B-31,
including the School Building, playground and Bungalow No.1,
for the establishment of a Higher Secondary School under the
Board of All India Higher Secondary School in Delhi, or any
other similar Government Board. The school so formed was
named as the Bengal Sappers St Gabriel’s Academy, Roorkee
(“BSSGA”).
3) On 29.04.1983, the Army Welfare Education Society was
registered under the Societies Registration Act.
4) On 20.04.1997, the BEGBT and IBSG respectively renewed
the lease agreement dated 13.07.1967 for a further period of
15 years i.e. up to 31.03.2012.
5) On 26.04.2010, the Chairman of BEGBT took a policy decision not
to renew the lease agreement dated 20.04.1997. BEGBT, by its
letter addressed to the Provincial Superior, IBSG, communicated
that the lease would not be renewed beyond the stipulated
period and requested IBSG to consider the letter as an advance
notice and suitably apprise all the students and their parents so
that they get adequate time to make alternate arrangements by
31.03.2012 i.e. when the lease was set to expire.
6) On 15.05.2010, IBSG, by its letter addressed to the Deputy
Commandant, BEGC, requested to furnish information as
regards the non- renewal of the lease dated 20.04.1997.
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7) On 22.06.2010, BEGC, in its reply to IBSG’s letter dated

15.05.2010, stated that there was a proposal under consideration
to establish an Army School at the location that was leased to
IBSG, and again requested IBSG to inform the Board and the
parents about the said proposal.
8) In July, 2021, BEGC initiated a proposal to establish an Army
Public School under the aegis of Army Welfare Education
Society (appellant) at the place that was then leased to IBSG.
9) On 23.02.2012, the appellant society granted approval to
establish Army Public School No.2 at Roorkee (“APS No.2”), on
the land that was earlier leased to IBSG. The approval dated
23.02.2012 laid down the modalities for adjusting the existing
staff at BSSGA into APS No.2, stating that-
“(g) The process of selecting Principal and teachers
must be completed by March 12 and they should be
in position by 01 Apr 2012. Service 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 ad-hoc 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 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.”
10) On 28.02.2012, BEGC, by its letter to IBSG, communicated the
conditions laid down in the approval letter dated 23.02.2012.
11) On 14.03.2012 the respondents herein filed Writ Petition No. 341
of 2012 before the High Court of Uttarakhand at Nainital seeking
a direction to quash the letter dated 28.02.2012 and also to
direct the appellant society to continue their services on the
same terms and conditions provided to them by the IBSG.
[2024] 7 S.C.R.  2201

Army Welfare Education Society New Delhi v.

Sunil Kumar Sharma & Ors. Etc.

12) It appears that the appellant society is a purely unaided private

society established for the purpose of imparting education to
the children of the army personnel including the widows and
ex-servicemen.
i. Position of Law
23. We begin with the decision of this Court in Executive Committee of
Vaish Degree College v. Lakshmi Narain, AIR 1976 SC 888. This
is one of the landmark decisions of this Court as this case discussed
and considered all the previous decisions and the same has been
referred to and relied upon by this Court till this date. This Court
held that a contract of personal service cannot ordinarily be enforced
specifically. Three exceptions were set out as well recognized :
(1) Where a public servant is sought to be removed from service
in contravention of the provisions of Article 311 of the Constitution
of India; (2) Where a worker is sought to be reinstated under the
Industrial Law; (3) Where a statutory body acts in breach or violation
of the mandatory-provisions of the statute. A statutory body was
defined in that case as one which was created by or under a statute
and owed its existence to a statute. It was held that an institution
governed by certain statutory provisions for its proper maintenance
and administration would not be a statutory body. The test prescribed
was whether the institution would exist in the absence of a statute.
24. In J. Tiwari v. Jawala Devi Vidya Mandir (1979) 4 SCC 160, it
was held that the rights and obligations of an employee of a private
institution are governed by the terms of the contract between the
parties. It was also observed that the regulations of the University
or the provisions of the Educational Code framed by the State
Government may be applicable to the institution and if the provisions
thereof are violated, the University may be entitled to disaffiliate the
institution. But that would not, however, make that the institution a
public or a statutory body.
25. In Dipak Kumar Biswas v. Director of Public Instruction,
1987 (2) SCC 252, the appellant before this Court instituted a suit
for declaration that he continued to be in service in Lady Keane Girls
College, Shillong and for an injunction. His services were terminated
by the College on the ground that the Director of Public Instruction had
not approved of his appointment. The trial court dismissed the suit.
The first appellate court allowed the appeal of the plaintiff and granted
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a decree as prayed for. The High Court, while holding that there was
no necessity for the approval by the Director of Public Instruction
as the Assam College Management Rules were not adopted by the
State of Meghalaya, held that reinstatement of the plaintiff in service
was not possible as it could be granted only to persons belonging
to the categories of (1) Government servants (2) Industrial workmen
and (3) Employees of statutory bodies. Consequently, the High
Court granted a decree for damages only. The aggrieved plaintiff
took the matter on appeal to this Court. Following the view token in
Vaish Degree College v. Lakshmi Narain (supra), this Court held
that a contract of service could not be enforced specifically. Then
the question to be considered was whether the college in that case
which was admittedly receiving aid from the Government and was
governed by the regulations of the University was a statutory body.
The Court answered in the negative and rejected the claim for
reinstatement. The Court observed as follows:-
“The law enunciated in these decisions stand fully attracted
to this case also. Even though the Lady Keane Girls College
may be governed by the statutes of the University and the
Education Code framed by the Government of Meghalaya
and even though the college may be receiving financial
aid from the Government it would not be a statutory body
because it has not been created by any statute and its
existence is not dependent upon any statutory provision.
Ultimately the Supreme Court granted additional damages
to the appellant.”
26. In Tekraj v. Union of India, 1988 (1) SCC 236, the question was
whether the Institute of Constitutional and Parliamentary studies
registered under the Societies Registration Act, 1860 was a “State”
within the meaning of Article 12 of the Constitution of India. After
tracing the case law on the subject the Court observed as follows:-
“Democracy pre-supposes certain conditions or its
successful working. It is necessary that there must be
a deep sense of understanding, mutual confidence and
tolerance and regard and acceptance of the views of others.
In the early years of freedom, the spirit of sacrifice and
a sense of obligation to the leadership that had helped
the dream of freedom to materialise had been accepted.
[2024] 7 S.C.R.  2203

Army Welfare Education Society New Delhi v.

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The emergence of a new generation within less than

two decades of independency gave rise to a feeling that
the people’s representatives in the legislatures required
the acquisition of the appropriate democratic ideas and
spirit. ICPS was born as a voluntary organisation to fulfil
this requirement. At the inception it was certainly not
a governmental organisation and it has not been the
case of the parties in their pleadings nor have we been
told at the bar during the long arguments that had been
advanced that the objects of ICPS are those which are
a State obligation to fulfil. The Society was thus born out
of a feeling that there should be a voluntary association
mostly consisting of members of the two Houses of
Parliament with some external support to fulfil the objects
which were adopted by the Society. The objects of the
Society were not governmental business but were certainly
the aspects which were expected to equip Members of
Parliament and the State Legislatures with the requisite
knowledge and experience for better functioning. Many of
the objects adopted by the Society were not confined to
the two Houses of Parliament and were intended to have
an impact on society at large.
The Memorandum of the Society permitted acceptance
of gifts, donations and subscriptions. There is material to
show that the Ford Foundation, a US based Trust, had
extended support for sometime. Undoubtedly, the annual
contribution from the Government has been substantial and
it would not be wrong to say that they perhaps constitute
the main source of funding, yet some money has been
coming from other sources. In later years, foreign funding
came to be regulated and, therefore it became necessary
to provide that without Government clearance, like any
other institution, ICPS was not to receive foreign donation.
No material has been placed before us for the stand that
the Society was not entitled to receive contributions from
any indigenous source without Government sanction.
Since Government moneys has been coming, the usual
conditions attached to Government grants have been
applied and enforced. If the Society’s affairs were really
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intended to be carried on as part of the Lok Sabha or

Parliament as such, the manner of functioning would have
been different. The accounts of the Society are separately
maintained and subject to audit in the same way as the
affairs of societies receiving Government grants are to be
audited. Government usually impose certain conditions
and restrictions when grants are made. No exception has
been made in respect of the Society and the mere fact that
such restrictions are made is not a determinative aspect.
Considerable attempt has been made by Mr. Rao,
learned Counsel for the appellant, to show that in the
functioning of the Society there is deep and pervasive
control of Government. We have examined meticulously
the correspondence and the instances where control was
attempted to be exercised or has, as a fact, been exercised
but these again are features which appear to have been
explained away.”
27. In spite of the above facts and circumstances, this Court held that the
institute was not a “State” or State instrumentality or other authority.
28. If the Authority/Body can be treated as a “State” within the meaning
of Article 12 of the Constitution of India, then in such circumstances,
it goes without saying that a writ petition under Article 226 would
be maintainable against such an Authority/Body for the purpose of
enforcement of fundamental and other legal rights. Therefore, the
definition contained in Article 12 is for the purpose of application of
the provisions contained in Part III. Article 226 of the Constitution,
which deals with powers of the High Courts to issue certain writs,
inter alia, stipulates that every High Court has the power to issue
directions, orders or writs to any person or authority, including, in
appropriate cases, any Government, for the enforcement of any of
the rights conferred by Part III and for any other purpose.
29. So far as Article 12 of the Constitution is concerned, the “State”
includes “all local and other Authorities within the territory of India
or under the control of the Government of India”. The debate on the
question as to which body would qualify as “other authority” & the
test/principles applicable for ascertaining as to whether a particular
body can be treated as “other authority” has been never ending. If
such an authority violates the fundamental right or other legal rights
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of any person or citizen (as the case may be), a writ petition can be
filed under Article 226 of the Constitution invoking the extraordinary
jurisdiction of the High Court and seeking appropriate direction, order
or writ. However, under Article 226 of the Constitution, the power of
the High Court is not limited to the Government or authority which
qualifies to be “State” under Article 12. Power is extended to issue
directions, orders or writs “to any person or authority”. Again, this
power of issuing directions, orders or writs is not limited to enforcement
of fundamental rights conferred by Part III, but also “for any other
purpose”. Thus, power of the High Court takes within its sweep more
“authorities” than stipulated in Article 12 and the subject-matter which
can be dealt with under this Article is also wider in scope.
30. There are three decisions of this Court we must look into and discuss.
31. The first judgment is Shri Anadi Mukta Sadguru Shree Muktajee
Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust & Ors.
v. V. R. Rudani & Ors. reported in (1989) 2 SCC 691 and the other
two judgments, we are talking about are K. Krishnamacharyulu &
Ors. v. Sri Venkateswara Hindu College of Engineering & Anr.
reported in 1997 (3) SCC 571 and Satimbla Sharma v. St. Paul’s
Senior Secondary School, reported in (2011) 13 SCC 760.
32. In Shri Anadi Mukta Sadguru (supra), dispute arose between the
Trust which was managing and running science college and teachers
of the said college. It pertained to payment of certain employment
related benefits like basic pay, etc. The matter was referred to the
Chancellor of Gujarat University for his decision. The Chancellor
passed an award, which was accepted by the University as well as
the State Government and a direction was issued to all affiliated
colleges to pay their teachers in terms of the said award. However,
the aforesaid Trust running the science college did not implement
the award. Teachers filed the writ petition seeking mandamus and
direction to the Trust to pay them their dues of salary, allowances,
provident fund and gratuity in accordance therewith. It is in this context
an issue arose as to whether the writ petition under Article 226 of
the Constitution was maintainable against the said Trust which was
admittedly not a statutory body or authority under Article 12 of the
Constitution as it was a private Trust running an educational institution.
The High Court held that the writ petition was maintainable and
the said view was upheld by this Court in the aforesaid judgment.
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The discussion which is relevant for our purposes is contained in

paras 14 to 19. However, we would like to reproduce paras 14, 16
and 19, which read as under:-
“14. If the rights are purely of a private character no
mandamus can issue. If the management of the college
is purely a private body with no public duty mandamus
will not lie. These are two exceptions to mandamus. But
once these are absent and when the party has no other
equally convenient remedy, mandamus cannot be denied.
It has to be appreciated that the appellant Trust was
managing the affiliated college to which public money is
paid as government aid. Public money paid as government
aid plays a major role in the control, maintenance and
working of educational institutions. The aided institutions
like government institutions discharge public function by
way of imparting education to students. They are subject
to the rules and regulations of the affiliating university.
Their activities are closely supervised by the University
authorities. Employment in such institutions, therefore,
is not devoid of any public character. [See The Evolving
Indian Administrative Law by M.P. Jain (1983) p. 266.] So
are the service conditions of the academic staff. When the
University takes a decision regarding their pay scales, it
will be binding on the management. The service conditions
of the academic staff are, therefore, not purely of a private
character. It has super-added protection by University
decisions creating a legal right-duty relationship between
the staff and the management. When there is existence
of this relationship, mandamus cannot be refused to the
aggrieved party.
xxx xxx xxx
16. There, however, the prerogative writ of mandamus is
confined only to public authorities to compel performance of
public duty. The ‘public authority’ for them means everybody
which is created by statute—and whose powers and duties
are defined by statute. So government departments, local
authorities, police authorities, and statutory undertakings
and corporations, are all ‘public authorities’. But there is no
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such limitation for our High Courts to issue the writ ‘in the
nature of mandamus’. Article 226 confers wide powers on
the High Courts to issue writs in the nature of prerogative
writs. This is a striking departure from the English law.
Under Article 226, writs can be issued to ‘any person or
authority’. It can be issued ‘for the enforcement of any of
the fundamental rights and for any other purpose’.
xxx xxx xxx
19. The term ‘authority’ used in Article 226, in the context,
must receive a liberal meaning like 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.”
(Emphasis supplied)
33. In para 14, the Court spelled out two exceptions to the writ of
mandamus viz. (i ) if the rights are purely of a private character, no
mandamus can issue; and (ii ) if the management of the college
is purely a private body “with no public duty”, mandamus will not
lie. The Court clarified that since the Trust in the said case was
an aided institution, because of this reason, it discharges public
function, like government institution, by way of imparting education
to students, more particularly when rules and regulations of the
affiliating university are applicable to such an institution, being an
aided institution. In such a situation, the Court held that the service
conditions of academic staff were not purely of a private character
as the staff had super-added protection by university’s decision
creating a legal right and duty relationship between the staff and
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the management. Further, the Court explained in para 19 that the

term “authority” used in Article 226, in the context, would receive a
liberal meaning unlike the term in Article 12, inasmuch as Article 12
was relevant only for the purpose of enforcement of fundamental
rights under Article 32, whereas Article 226 confers power on the
High Courts to issue writs not only for enforcement of fundamental
rights but also non-fundamental rights. What is relevant is the dicta
of the Court that the term “authority” appearing in Article 226 of the
Constitution would cover any other person or body performing public
duty. The guiding factor, therefore, is the nature of duty imposed on
such a body, namely, public duty to make it exigible to Article 226.
34. In K. Krishnamacharyulu (supra), this Court again emphasised that
where there is an interest created by the Government in an institution
to impart education, which is a fundamental right of the citizens, the
teachers who impart the education get an element of public interest
in performance of their duties. In such a situation, remedy provided
under Article 226 would be available to the teachers.
35. However, both the decisions referred to abovea pertain to educational
institutions and in the said cases, the function of imparting education
was treated as the performance of the public duty, that too by those
bodies where, the aided institutions were discharging the said
functions like Government institutions and the interest was created
by the Government in such institutions to impart education.
36. In Satimbla Sharma (supra), the school therein was initially
established as a mission school by the respondent No. 2. The
school adopted the 10+2 system in 1993 and got affiliated to the
Himachal Pradesh Board of School Education. Before independence
in 1947, the school was receiving grant-in-aid from the British Indian
Government and thereafter from the Government of India up to 1950.
Between 1951 and 1966, the school received grant-in-aid from the
State Government of Punjab. After the State of Himachal Pradesh
was formed, the school received grant-in-aid from the Government
of Himachal Pradesh for the period between 1967 and 1976. From
the year 1977-1978, the Government of Himachal Pradesh stopped
the grant-in-aid. In such circumstances, the teachers of the school
were paid less than the teachers of the Government schools and the
Government-aided schools in the State of Himachal Pradesh. This
led to filing of a writ petition in the High Court of Himachal Pradesh
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seeking a direction to pay the salary and allowances at par with the
teachers of Government schools and the Government-aided schools.
A learned single Judge of the High Court allowed the writ petition and
directed the respondents therein to pay to the writ petitioners therein
salary and allowances at par with their counterparts working in the
Government schools from the dates they were entitled to and at the
rates admissible from time to time. The respondent Nos. 1 and 2
therein preferred letters patent appeal before the Division Bench
of the High Court. The appeal came to be allowed and the writ
petition filed by the teachers was dismissed. In such circumstances
referred to above, the litigation travelled to this Court. This Court,
while disposing of the appeal, held as under:-
“25. Where a statutory provision casts a duty on a
private unaided school to pay the same salary and
allowances to its teachers as are being paid to teachers
of government- aided schools, then a writ of mandamus to
the school could be issued to enforce such statutory duty.
But in the present case, there was no statutory provision
requiring a private unaided school to pay to its teachers the
same salary and allowances as were payable to teachers
of government schools and therefore a mandamus could
not be issued to pay to the teachers of private recognised
unaided schools the same salary and allowances as were
payable to teachers of government institutions.
26. In K. Krishnamacharyulu v. Sri Venkateswara Hindu
College of Engg. (1997) 3 SCC 571 : 1997 SCC (L&S) 841,
relied upon by the learned counsel for the appellants,
executive instructions were issued by the Government
that the scales of pay of Laboratory Assistants as
non-teaching staff of private colleges shall be on a par
with the government employees and this Court held that
even though there were no statutory rules, the Laboratory
Assistants as non-teaching staff of private college were
entitled to the parity of the pay scales as per the executive
instructions of the Government and the writ jurisdiction of
the High Court under Article 226 of the Constitution is wide
enough to issue a writ for payment of pay on a par with
government employees. In the present case, there are no
executive instructions issued by the Government requiring
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private schools to pay the same salary and allowances to

their teachers as are being paid to teachers of government
schools or government-aided schools.
27. We cannot also issue a mandamus to Respondents
1 and 2 on the ground that the conditions of provisional
affiliation of schools prescribed by the Council for the Indian
School Certificate Examinations stipulate in Clause (5)(b)
that the salary and allowances and other benefits of the
staff of the affiliated school must be comparable to that
prescribed by the State Department of Education because
such conditions for provisional affiliation are not statutory
provisions or executive instructions, which are enforceable
in law. Similarly, we cannot issue a mandamus to give
effect to the recommendations of the Report of Education
Commission 1964-1966 that the scales of pay of school
teachers belonging to the same category but working
under different managements such as Government, local
bodies or private managements should be the same, unless
the recommendations are incorporated in an executive
instruction or a statutory provision. We, therefore, affirm
the impugned judgment of the Division Bench of the High
Court.
28. We, however, find that the 2009 Act has provisions
in Section 23 regarding the qualifications for appointment
and terms and conditions of service of teachers and sub-
section (3) of Section 23 of the 2009 Act provides that
the salary and allowances payable to, and the terms and
conditions of service of, teachers shall be such as may
be prescribed. Section 38 of the 2009 Act empowers the
appropriate Government to make rules and Section 38(2)(l)
of the 2009 Act provides that the appropriate Government,
in particular, may make rules prescribing the salary and
allowances payable to, and the terms and conditions of
service of teachers, under sub-section (3) of Section 23.
Section 2(a) defines “appropriate Government” as the
State Government within whose territory the school is
established.
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29. The State of Himachal Pradesh, Respondent 3 in

this appeal, is thus empowered to make rules under sub-
section (3) of Section 23 read with Section 38(2)(l) of the
2009 Act prescribing the salary and allowances payable
to, and the terms and conditions of service of, teachers.
Article 39(d) of the Constitution provides that the State
shall, in particular, direct its policy towards securing that
there is equal pay for equal work for both men and women.
Respondent 3 should therefore consider making rules
under Section 23 read with Section 38(2)(l) of the 2009 Act
prescribing the salary and allowances of teachers keeping in
mind Article 39(d) of the Constitution as early as possible.”
(Emphasis supplied)
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.
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.
39. In the said case, the following two questions fell for the consideration
of the Court:-
(a) Whether a writ petition under Article 226 of the Constitution
of India is maintainable against a private unaided minority
institution?
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(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?
40. This Court ultimately held as under:-
“29. Respondent 1 herein has laid much emphasis on
the fact that at the time of his appointment in the school,
the same was affiliated to the Madhya Pradesh State
Board. It is his case that at the relevant point of time the
school used to receive the grant-in-aid from the State
Government of Madhya Pradesh. Later in point of time,
the school came to be affiliated to CBSE. The argument
of Respondent 1 seems to be that as the school is
affiliated to the Central Board i.e. CBSE, it falls within the
ambit of “State” under Article 12 of the Constitution. The
school is affiliated to CBSE for the purpose of imparting
elementary education under the Right of Children to
Free and Compulsory Education Act, 2009 (for short
“the 2009 Act”). As Appellant 1 is engaged in imparting
of education, it could be said to be performing public
functions. To put it in other words, Appellant 1 could
be said to be performing public duty. Even if a body
performing public duty is amenable to the writ jurisdiction,
all its decisions are not subject to judicial review. Only
those decisions which have public element therein can
be judicially reviewed under the writ jurisdiction. If the
action challenged does not have the public element, a
writ of mandamus cannot be issued as the action could
be said to be essentially of a private character.
30. We may at the outset state that CBSE is only a society
registered under the Societies Registration Act, 1860 and
the school affiliated to it is not a creature of the statute
and hence not a statutory body. The distinction between
a body created by the statute and a body governed in
accordance with a statute has been explained by this
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Court in Executive Committee of Vaish Degree College

v. Lakshmi Narain (1976) 2 SCC 58, as follows:- (SCC
p. 65, para 10)
“10. … It is, therefore, clear that there is a well
marked distinction between a body which is
created by the statute and a body which after
having come into existence is governed in
accordance with the provisions of the statute.
In other words the position seems to be that
the institution concerned must owe its very
existence to a statute which would be the
fountainhead of its powers. The question in
such cases to be asked is, if there is no statute
would the institution have any legal existence. If
the answer is in the negative, then undoubtedly
it is a statutory body, but if the institution has
a separate existence of its own without any
reference to the statute concerned but is merely
governed by the statutory provisions it cannot
be said to be a statutory body.”
31. As stated above, the school is affiliated to CBSE for the
sake of convenience, namely, for the purpose of recognition
and syllabus or the courses of study and the provisions of
the 2009 Act and the Rules framed thereunder.
32. The contention canvassed by Respondent 1 is that
a writ petition is maintainable against the Committee
of Management controlling the affairs of an institution
(minority) run by it, if it violates any rules and bye-laws laid
down by CBSE. First, as discussed above, CBSE itself is
not a statutory body nor the regulations framed by it have
any statutory force. Secondly, the mere fact that the Board
grants recognition to the institutions on certain terms and
conditions itself does not confer any enforceable right on
any person as against the Committee of Management.
33. In Regina v. St. Aloysius Higher Secondary School
(1972) 4 SCC 188 : AIR 1971 SC 1920, this Court held
that the mere fact that an institution is recognised by an
authority, does not itself create an enforceable right to an
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aggrieved party against the Management by a teacher

on the ground of breach or non-compliance of any of the
Rules which was part of terms of the recognition. It was
observed as under:-
“24. … The Rules thus govern the terms on
which the Government would grant recognition
and aid and the Government can enforce
these rules upon the management. But the
enforcement of such rules is a matter between
the Government and the management, and a
third party, such as teacher aggrieved by some
order of the management cannot derive from
the rules any enforceable right against the
management on the ground of breach or non-
compliance of any of the rules.”
34. In Anita Verma v. D.A.V. College Management
Committee, Unchahar, Rai Bareilly (1992) 1 UPLBEC 30:-
“… 30. Where the services of a teacher
were terminated, the Court held that the writ
petition under Article 226 is not maintainable
as the institution cannot be treated as the
instrumentality of the State. The matter was
considered in detail in Harbans Kaur v. Guru
Tegh Bahadur Public School [Harbans Kaur v.
Guru Tegh Bahadur Public School, 1992 SCC
OnLine All 444 : 1992 Lab IC 2070], wherein
the services of the petitioner were terminated
by the Managing Committee of the institution
recognised by CBSE. It was held that the
Affiliation Bye-laws framed by CBSE have no
statutory force. The Court under Article 226 of
the Constitution of India can enforce compliance
of statutory provision against a committee of
management as held in a Full Bench decision
of this Court in Aley Ahmad Abidi v. District
Inspector of Schools [Aley Ahmad Abidi v.
District Inspector of Schools, 1976 SCC OnLine
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All 325 : AIR 1977 All 539]. The Affiliation Bye-

laws of CBSE having no statutory force, the
only remedy against the aggrieved person is
to approach CBSE putting his grievances in
relation to the violation of the Affiliation Bye-laws
by the institution.”
35. Thus, where a teacher or non-teaching staff challenges
the action of Committee of Management that it has violated
the terms of contract or the rules of the Affiliation Bye-laws,
the appropriate remedy of such teacher or employee is
to approach CBSE or to take such other legal remedy
available under law. It is open to CBSE to take appropriate
action against the Committee of Management of the
institution for withdrawal of recognition in case it finds
that the Committee of Management has not performed its
duties in accordance with the Affiliation Byelaws.
36. It needs no elaboration to state that a school affiliated
to CBSE which is unaided is not a State within Article 12 of
the Constitution of India [see Satimbla Sharma v. St Paul’s
Senior Secondary School (2011) 13 SCC 760 : (2012)
2 SCC (L&S) 75 . Nevertheless the school discharges a
public duty of imparting education which is a fundamental
right of the citizen [see K. Krishnamacharyulu v. Sri
Venkateswara Hindu College of Engineering (1997)
3 SCC 571 : 1997 SCC (L&S) 841. The school affiliated
to CBSE is therefore an “authority” amenable to the
jurisdiction under Article 226 of the Constitution of India
[see Binny Ltd. v. V. Sadasivan (2005) 6 SCC 657 :
2005 SCC (L&S) 881] ]. However, a judicial review of the
action challenged by a party can be had by resort to the
writ jurisdiction only if there is a public law element and
not to enforce a contract of personal service. A contract
of personal service includes all matters relating to the
service of the employee — confirmation, suspension,
transfer, termination, etc. [see Apollo Tyres Ltd. v. C.P.
Sebastian (2009) 14 SCC 360].
37. This Court in K.K. Saksena v. International
Commission on Irrigation & Drainage (2015) 4 SCC 670,
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after an exhaustive review of its earlier decisions on the

subject, held as follows:- (SCC pp. 692 & 696, paras 43
& 52)
“43. What follows from a minute and careful
reading of the aforesaid judgments of this Court
is that if a person or authority is “State” within
the meaning of Article 12 of the Constitution,
admittedly a writ petition under Article 226 would
lie against such a person or body. However, we
may add that even in such cases writ would
not lie to enforce private law rights. There are
a catena of judgments on this aspect and it is
not necessary to refer to those judgments as
that is the basic principle of judicial review of
an action under the administrative law. The
reason is obvious. A private law is that part of
a legal system which is a part of common law
that involves relationships between individuals,
such as law of contract or torts. Therefore, even
if writ petition would be maintainable against an
authority, which is “State” under Article 12 of the
Constitution, before issuing any writ, particularly
writ of mandamus, the Court has to satisfy that
action of such an authority, which is challenged,
is in the domain of public law as distinguished
from private law.
x x x x
52. It is trite that contract of personal service
cannot be enforced. There are three exceptions
to this rule, namely:
(i) when the employee is a public servant working
under the Union of India or State;
(ii) when such an employee is employed by
an authority/body which is a State within the
meaning of Article 12 of the Constitution of
India; and
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(iii) when such an employee is “workmen”

within the meaning of Section 2(s) of the
Industrial Disputes Act, 1947 and raises a
dispute regarding his termination by invoking
the machinery under the said Act.
In the first two cases, the employment ceases
to have private law character and “status” to
such an employment is attached. In the third
category of cases, it is the Industrial Disputes
Act which confers jurisdiction on the Labour
Court/Industrial Tribunal to grant reinstatement
in case termination is found to be illegal.”
38. The following decisions have been adverted to in
K.K. Saksena (supra):-
1. Andi Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak Trust
v. V.R. Rudani (1989) 2 SCC 691
2. G. Bassi Reddy v. International Crops Research
Institute (2003) 4 SCC 225,
3. Praga Tools Corpn. v. C.A. Imanual (1969) 1
SCC 585,
4. Federal Bank Ltd. v. Sagar Thomas (2003) 10
SCC 733.
39. This Court in Janet Jeyapaul v. SRM University (2015)
16 SCC 530, held that when a private body exercises its
public functions even if it is not a State, the aggrieved
person has a remedy, not only under the ordinary law,
but also by way of a writ petition under Article 226 of the
Constitution. In Binny Ltd. (supra), this Court held that
Article 226 of the Constitution is couched in such a way
that a writ of mandamus could be issued even against a
private authority. However, such private authority must be
discharging a public function and that the decision sought
to be corrected or enforced must be in the discharge of
public function.
40. Paragraph 11 of the judgment in Binny Ltd. (supra)
is reproduced below:- (SCC pp. 665-66)
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“11. Judicial review is designed to prevent

the cases of abuse of power and neglect of
duty by public authorities. However, under our
Constitution, Article 226 is couched in such a
way that a writ of mandamus could be issued
even against a private authority. However,
such private authority must be discharging a
public function and that the decision sought to
be corrected or enforced must be in discharge
of a public function. The role of the State
expanded enormously and attempts have been
made to create various agencies to perform the
governmental functions. Several corporations
and companies have also been formed by
the Government to run industries and to carry
on trading activities. These have come to be
known as public sector undertakings. However,
in the interpretation given to Article 12 of the
Constitution, this Court took the view that many
of these companies and corporations could
come within the sweep of Article 12 of the
Constitution. At the same time, there are private
bodies also which may be discharging public
functions. It is difficult to draw a line between
public functions and private functions when it is
being discharged by a purely private authority.
A body is performing a “public function” when it
seeks to achieve some collective benefit for the
public or a section of the public and is accepted
by the public or that section of the public as
having authority to do so. Bodies therefore
exercise public functions when they intervene
or participate in social or economic affairs in the
public interest.”  (Emphasis supplied)
41. This Court considered various of its other decisions to
examine the question of public law remedy under Article
226 of the Constitution. This Court observed in Binny Ltd.
(supra) as under:-
(SCC p. 673, para 29)
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“29. Thus, it can be seen that a writ of mandamus

or the remedy under Article 226 is pre-eminently
a public law remedy and is not generally
available as a remedy against private wrongs.
It is used for enforcement of various rights of
the public or to compel the public/statutory
authorities to discharge their duties and to act
within their bounds. It may be used to do justice
when there is wrongful exercise of power or a
refusal to perform duties. This writ is admirably
equipped to serve as a judicial control over
administrative actions. This writ could also be
issued against any private body or person,
specially in view of the words used in Article
226 of the Constitution. However, the scope of
mandamus is limited to enforcement of public
duty. The scope of mandamus is determined
by the nature of the duty to be enforced, rather
than the identity of the authority against whom
it is sought. If the private body is discharging a
public function and the denial of any right is in
connection with the public duty imposed on such
body, the public law remedy can be enforced.
The duty cast on the public body may be either
statutory or otherwise and the source of such
power is immaterial, but, nevertheless, there
must be the public law element in such action.
Sometimes, it is difficult to distinguish between
public law and private law remedies.”
(Emphasis supplied)
42. In the penultimate paragraph, this Court ruled as
under:- (Binny case, SCC p. 674, para 32)
“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
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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.”
(Emphasis supplied)
43. In the background of the above legal position, it can
be safely concluded that power of judicial review under
Article 226 of the Constitution of India can be exercised by
the High Court even if the body against which an action is
sought is not State or an authority or an instrumentality of
the State but there must be a public element in the action
complained of.
44. A reading of the above extract shows that the decision
sought to be corrected or enforced must be in the
discharge of a public function. No doubt, the aims and
objective of Appellant 1 herein are to impart education,
which is a public function. However, the issue herein is
with regard to the termination of service of Respondent
1, which is basically a service contract. A body is said to
be performing a public function when it seeks to achieve
some collective benefit for the public or a section of the
public and is accepted by the public or that section of the
public as having authority to do so.
45. In the case of Committee of Management, Delhi
Public School v. M.K. Gandhi , reported in (2015) 17 SCC
353, this Court held 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.
46. In Trigun Chand Thakur v. State of Bihar, reported in
(2019) 7 SCC 513, this Court upheld the view of a Division
Bench of the Patna High Court which held that a teacher
of privately managed school, even though financially aided
by the State Government or the Board, cannot maintain a
writ petition against an order of termination from service
passed by the Management.
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Army Welfare Education Society New Delhi v.

Sunil Kumar Sharma & Ors. Etc.

47. In Satimbla Sharma (supra), this Court held that

the unaided private minority schools over which the
Government has no administrative control because of their
autonomy under Article 30(1) of the Constitution are not
“State” within the meaning of Article 12 of the Constitution.
As the right to equality under Article 14 of the Constitution
is available against the State, it cannot be claimed against
unaided private minority private schools.
48. The Full Bench of the Allahabad High Court in Roychan
Abraham v. State of U.P., AIR 2019 All 96, after taking
into consideration various decisions of this Court, held
as under:-
“38. Even if it be assumed that an educational
institution is imparting public duty, the act
complained of must have direct nexus with the
discharge of public duty. It is undisputedly a
public law action which confers a right upon the
aggrieved to invoke 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 petition under
Article 226. Wherever Courts have intervened
in exercise of jurisdiction under Article 226,
either the service conditions were regulated by
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.”
(Emphasis supplied)
49. We may refer to and rely upon one order passed by this
Court in S.K. Varshney v. Principal, Our Lady of Fatima
Higher Secondary School (2023) 4 SCC 539, in the Civil
Appeal No. 8783-8784 of 2003 dated July 19, 2007, in
which the dispute was one relating to the retirement age
of a teacher working in an unaided institution. This Court,
while dismissing the appeal preferred by the employee,
held as under:-
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“4. Both the petitions were dismissed by the

learned Single Judge on the ground that no writ
would lie against unaided private institutions and
the writ petitions were not maintainable.
5. Aggrieved thereby, writ appeals have been
filed before the Division Bench without any
result. The Division Bench held [S.K. Varshney
v. Our Lady of Fatima Higher Secondary School,
1999 SCC OnLine All 908] that the writ petitions
are not maintainable against a private institute.
Aggrieved thereby, these appeals have been
filed.
6. The counsel for the appellant relied
on a decision rendered by this Court in
K. Krishnamacharyulu v. Sri Venkateswara
Hindu College of Engg. (1997) 3 SCC 571. He
particularly relied on the observation made by
this Court in para 4 of the order that when an
element of public interest is created and the
institution is catering to that element, the teacher,
being the arm of the institution, is also entitled to
avail of the remedy provided under Article 226.
7. This Court in Sushmita Basu v. Ballygunge
Siksha Samity (2006) 7 SCC 680 : 2006 SCC
(L&S) 1741] in which one of us (Sema, J.) is a
party, after considering the aforesaid judgment
has distinguished the ratio by holding that
the writ under Article 226 of the Constitution
against a private educational institute would be
justified only if a public law element is involved
and if it is only a private law remedy no writ
petition would lie. In the present cases, there
is no question of public law element involved
inasmuch as the grievances of the appellants
are of personal nature.
8. We, accordingly, hold that writ petitions are
not maintainable against the private institute.
There is no infirmity in the order passed by
[2024] 7 S.C.R.  2223

Army Welfare Education Society New Delhi v.

Sunil Kumar Sharma & Ors. Etc.

the learned Single Judge and affirmed by the

Division Bench. These appeals are devoid of
merit and are, accordingly, dismissed. No costs.”
(Emphasis supplied)
50. We may also refer to and rely upon the decision of
this Court in Vidya Ram Misra v. Shri Jai Narain College
(1972) 1 SCC 623 : AIR 1972 SC 1450. The appellant
therein filed a writ petition before the Lucknow Bench of
the High Court of Allahabad challenging the validity of a
resolution passed by the Managing Committee of Shri
Jai Narain College, Lucknow, an associated college of
Lucknow University, terminating his services and praying for
issue of an appropriate writ or order quashing the resolution.
A learned Single Judge of the High Court finding that in
terminating the services, the Managing Committee acted
in violation of the principles of natural justice, quashed
the resolution and allowed the writ petition. The Managing
Committee appealed against the order. A Division Bench
of the High Court found that the relationship between the
college and the appellant therein was that of master and
servant and that even if the service of the appellant had
been terminated in breach of the audi alteram partem rule
of natural justice, the remedy of the appellant was to file a
suit for damages and not to apply under Article 226 of the
Constitution for a writ or order in the nature of certiorari and
that, in fact, no principle of natural justice was violated by
terminating the services of the appellant. The writ petition
was dismissed. In appeal, this Court upheld the decision of
the High Court holding that the lecturer cannot have any
cause of action on breach of the law but only on breach
of the contract, hence he has a remedy only by way of
suit for damages and not by way of writ under Article 226
of the Constitution.
51. In Vidya Ram Misra (supra), this Court observed
thus:- (SCC p. 629, paras 12-13)
“12. Whereas in P.R.K. Jodh v. A.L. Pande
(1965) 2 SCR 713], the terms and conditions
of service embodies in Clause 8(vi)(a) of the
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“College Code” had the force of law apart

from the contract and conferred rights on the
appellant there, here the terms and conditions
mentioned in Statute 151 have no efficacy,
unless they are incorporated in a contract.
Therefore, appellant cannot found a cause of
action on any breach of the law but only on the
breach of the contract. As already indicated,
Statute 151 does not lay down any procedure
for removal of a teacher to be incorporated
in the contract. So, Clause 5 of the contract
can, in no event, have even a statutory flavour
and for its breach, the appellant’s remedy lay
elsewhere.
13. Besides, in order that the third exception to
the general rule that no writ will lie to quash an
order terminating a contract of service, albeit
illegally, as stated in S.R. Tewari v. District
Board (1964) 3 SCR 55 : AIR 1964 SC 1680],
might apply, it is necessary that the order
must be the order of a statutory body acting
in breach of a mandatory obligation imposed
by a statute. The college, or the Managing
Committee in question, is not a statutory body
and so the argument of Mr Setalvad that the
case in hand will fall under the third exception
cannot be accepted. The contention of counsel
that this Court has sub silentio sanctioned the
issue of a writ under Article 226 to quash an
order terminating services of a teacher passed
by a college similarly situate in P.R.K. Jodh,
and, therefore, the fact that the college or the
Managing Committee was not a statutory body
was no hindrance to the High Court issuing the
writ prayed for by the appellant has no merit
as this Court expressly stated in the judgment
that no such contention was raised in the High
Court and so it cannot be allowed to be raised
in this Court.”
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Army Welfare Education Society New Delhi v.

Sunil Kumar Sharma & Ors. Etc.

52. In the case on hand, the facts are similar. Rule 26(1)
of the Affiliation Bye-laws, framed by CBSE, provides that
each school affiliated with the Board shall frame Service
Rules. Sub-rule (2) of it provides that a service contract
will be entered with each employee as per the provision
in the Education Act of the State/Union Territory, or as
given in Appendix III, if not obligatory as per the State
Education Act. These rules also provide procedures
for appointments, probation, confirmation, recruitment,
attendance representations, grant of leave, code of
conduct, disciplinary procedure, penalties, etc. The model
form of contract of service, to be executed by an employee,
given in Appendix III, lays down that the service, under this
agreement, will be liable to disciplinary action in accordance
with the Rules and Regulations framed by the school from
time to time. Only in case where the post is abolished or
an employee intends to resign, Rule 31 of the Affiliation
Bye-laws of the Board will apply. It may be noted that the
above Bye-laws do not provide for any particular procedure
for dismissal or removal of a teacher for being incorporated
in the contract. Nor does the model form of contract given
in Appendix III lay down any particular procedure for that
purpose. On the contrary, the disciplinary action is to be
taken in accordance with the Rules and Regulations framed
by the school from time to time.
53. On a plain reading of these provisions, it becomes
clear that the terms and conditions mentioned in the
Affiliation Bye-laws may be incorporated in the contract
to be entered into between the school and the employee
concerned. It does not say that the terms and conditions
have any legal force, until and unless they are embodied
in an agreement. To put it in other words, the terms and
conditions of service mentioned in Chapter VII of the
Affiliation Bye-laws have no force of law. They become
terms and conditions of service only by virtue of their being
incorporated in the contract. Without the contract they have
no vitality and can confer no legal rights. The terms and
conditions mentioned in the Affiliation Bye-laws have no
efficacy, unless they are incorporated in a contract. In the
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absence of any statutory provisions governing the services

of the employees of the school, the service of Respondent 1
was purely contractual. A contract of personal service
cannot be enforced specifically. Therefore, Respondent 1
cannot find a cause of action on any breach of the law,
but only on the breach of the contract. That being so, the
appellant’s remedy lies elsewhere and in no case the writ
is maintainable.
54. Thus, the aforesaid order passed by this Court
makes it very clear that in a case of retirement and in
case of termination, no public law element is involved.
This Court has held that a writ under Article 226 of the
Constitution against a private educational institution shall
be maintainable only if a public law element is involved and
if there is no public law element is involved, no writ lies.
55. In T.M.A. Pai Foundation v. State of Karnataka
(2002) 8 SCC 481, an eleven-Judge Bench of this Court
formulated certain points in fact to reconsider its earlier
decision in Ahmedabad St. Xavier’s College Society
v. State of Gujarat (1974) 1 SCC 717, and also Unni
Krishnan, J.P. v. State of A.P. (1993) 4 SCC 111, regarding
the “right of the minority institution including administration
of the student and imparting education vis-à-vis the right
of administration of the non-minority student”.
56. In the said case, very important points arose as follows:-
(T.M.A. Pai Foundation case, SCC pp. 709-10, para 450)
“450. … Q.5. (c) Whether the statutory provisions
which regulate the facets of administration
like control over educational agencies, control
over governing bodies, conditions of affiliation
including recognition/withdrawal thereof, and
appointment of staff, employees, teachers and
principals including their service conditions and
regulation of fees, etc. would interfere with the
right of administration of minorities?
A. So far as the statutory provisions regulating
the facets of administration are concerned,
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Army Welfare Education Society New Delhi v.

Sunil Kumar Sharma & Ors. Etc.

in case of an unaided minority educational

institution, the regulatory measure of control
should be minimal and the conditions of
recognition as well as conditions of affiliation to
a university or board have to be complied with,
but in the matter of day-to-day management, like
appointment of staff, teaching and non-teaching
and administrative control over them, the
management should have the freedom and there
should not be any external controlling agency.
However, a rational procedure for selection of
teaching staff and for taking disciplinary action
has to be evolved by the management itself. For
redressing the grievances of such employees
who are subjected to punishment or termination
from service, a mechanism will have to be
evolved and in our opinion, appropriate tribunals
could be constituted, and till then, such tribunal
could be presided over by a judicial officer of
the rank of District Judge. The State or other
controlling authorities, however, can always
prescribe the minimum qualifications, salaries,
experience and other conditions bearing on the
merit of an individual for being appointed as a
teacher of an educational institution.
Regulations can be framed governing service conditions
for teaching and other staff for whom aid is provided by
the State without interfering with overall administrative
control of management over the staff, government/
university representative can be associated with the
Selection Committee and the guidelines for selection can
be laid down. In regard to unaided minority educational
institutions such regulations, which will ensure a check
over unfair practices and general welfare of teachers
could be framed.”
57. We now proceed to look into the two decisions of this
Court in Ramesh Ahluwalia (supra) and Marwari Balika
Vidyalaya (supra) respectively.
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58. In Ramesh Ahluwalia (supra), the appellant therein

was working as an administrative officer in a privately
run educational institution and by way of disciplinary
proceedings, was removed from service by the Managing
Committee of the said educational institution. A writ petition
was filed before the learned Single Judge of the High
Court challenging the order of the disciplinary authority
wherein he was removed from service. The writ petition
was ordered to be dismissed in limine holding that the
said educational institution being an unaided and a private
school managed by the society cannot be said to be an
instrument of the State. The appeal before the Division
Bench also came to be dismissed. The matter travelled
to this Court.
59. The principal argument before this Court was in
regard to the maintainability of the writ petition against
a private educational institution. It was argued on the
behalf of the appellant therein that although a private
educational institution may not fall within the definition
of “State” or “other authorities/instrumentalities” of the
State under Article 12 of the Constitution, yet a writ
petition would be maintainable as the said educational
institution could be said to be discharging public functions
by imparting education. However, the learned counsel for
the educational institution therein took a plea before this
Court that while considering whether a body falling within
the definition of “State”, it is necessary to consider whether
such body is financially, functionally and administratively
dominated by or under the control of the Government. It
was further argued that if the control is merely regulatory
either under a statute or otherwise, it would not ipso facto
make the body “State” within Article 12 of the Constitution.
On the conspectus of the peculiar facts of the case and the
submissions advanced, this Court held that a writ petition
would be maintainable if a private educational institution
discharges public functions, more particularly imparting
education. Even by holding so, this Court declined to
extend any benefits to the teacher as the case involved
disputed questions of fact.
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Army Welfare Education Society New Delhi v.

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60. We take notice of the fact that in Ramesh Ahluwalia

(supra) the attention of the Hon’ble Judges was not drawn to
the earlier decisions of this Court in K. Krishnamacharyulu
(supra), Federal Bank (supra), Sushmita Basu v.
Ballygunge Siksha Samity (2006) 7 SCC 680, and Delhi
Public School v. M.K. Gandhi (supra).
61. In Marwari Balika Vidyalaya (supra), this Court
followed Ramesh Ahluwalia (supra) referred to above.
62. We may say without any hesitation that respondent 1
herein cannot press into service the dictum as laid down by
this Court in Marwari Balika Vidyalaya (supra) as the said
case is distinguishable. The most important distinguishing
feature of Marwari Balika Vidyalaya (supra) is that in the
said case the removal of the teacher from service was
subject to the approval of the State Government. The State
Government took a specific stance before this Court that its
approval was required both for the appointment as well as
removal of the teacher. In the case on hand, indisputably the
Government or any other agency of the Government has
no role to play in the termination of Respondent 1 herein.
63. In context with Marwari Balika Vidyalaya (supra), we
remind ourselves of Bye-law 49(2) which provides that no
order with regard to the imposition of major penalty shall
be made by the disciplinary authority except after the
receipt of the approval of the Disciplinary Committee. Thus
unlike Marwari Balika Vidyalaya (supra) where approval
was required of the State Government, in the case on
hand the approval is to be obtained from the Disciplinary
Committee of the institution. This distinguishing feature
seems to have been overlooked by the High Court while
passing the impugned order.
64. In Marwari Balika Vidyalaya (supra), the school was
receiving grant-in-aid to the extent of dearness allowance.
The appointment and the removal, as noted above, is
required to be approved by the District Inspector of School
(Primary Education) and, if any action is taken dehors such
mandatory provisions, the same would not come within
the realm of private element.
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65. In Trigun Chand Thakur (supra)s, the appellant therein

was appointed as a Sanskrit teacher and a show-cause
notice was issued upon him on the ground that he was
absent on the eve of Independence day and Teachers
Day which resulted into a dismissal order passed by the
Managing Committee of the private school. The challenge
was made by filing a writ petition before the High Court
which was dismissed on the ground that the writ petition is
not maintainable against an order terminating the service
by the Managing Committee of the private school. This
Court held that even if the private school was receiving a
financial aid from the Government, it does not make the
said Managing Committee of the school a “State” within
the meaning of Article 12 of the Constitution of India.
66. Merely because a writ petition can be maintained
against the private individuals discharging the public
duties and/or public functions, the same should not be
entertained if the enforcement is sought to be secured
under the realm of a private law. It would not be safe to
say that the moment the private institution is amenable
to writ jurisdiction then every dispute concerning the
said private institution is amenable to writ jurisdiction. It
largely depends upon the nature of the dispute and the
enforcement of the right by an individual against such
institution. The right which purely originates from a private
law cannot be enforced taking aid of the writ jurisdiction
irrespective of the fact that such institution is discharging
the public duties and/or public functions. The scope of the
mandamus is basically limited to an enforcement of the
public duty and, therefore, it is an ardent duty of the court
to find out whether the nature of the duty comes within
the peripheral of the public duty. There must be a public
law element in any action.
67. Our present judgment would remain incomplete if we
fail to refer to the decision of this Court in Ramakrishna
Mission v. Kago Kunya (2019) 16 SCC 303. In the said
case this Court considered all its earlier judgments on
the issue. The writ petition was not found maintainable
against the Mission merely for the reason that it was
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Army Welfare Education Society New Delhi v.

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found running a hospital, thus discharging public functions/

public duty. This Court considered the issue in reference
to the element of public function which should be akin to
the work performed by the State in its sovereign capacity.
This Court took the view that every public function/public
duty would not make a writ petition to be maintainable
against an “authority” or a “person” referred under
Article 226 of the Constitution of India unless the functions
are such which are akin to the functions of the State or
are sovereign in nature.
68. Few relevant paragraphs of the said judgment are
quoted as under for ready reference:- (Ramakrishna
Mission case, SCC pp. 309-11 & 313, paras 17-22 & 25-26)
“17. The basic issue before this Court is whether
the functions performed by the hospital are
public functions, on the basis of which a writ
of mandamus can lie under Article 226 of the
Constitution.
18. The hospital is a branch of the Ramakrishna
Mission and is subject to its control. The
Mission was established by Swami Vivekanand,
the foremost disciple of Shri Ramakrishna
Paramhansa. Service to humanity is for the
organisation co-equal with service to God as
is reflected in the motto “Atmano Mokshartham
Jagad Hitaya Cha”. The main object of the
Ramakrishna Mission is to impart knowledge
in and promote the study of Vedanta and its
principles propounded by Shri Ramakrishna
Paramahansa and practically illustrated by
his own life and of comparative theology in its
widest form. Its objects include, inter alia to
establish, maintain, carry on and assist schools,
colleges, universities, research institutions,
libraries, hospitals and take up development
and general welfare activities for the benefit
of the underprivileged/backward/tribal people
of society without any discrimination. These
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activities are voluntary, charitable and non-profit

making in nature. The activities undertaken by
the Mission, a non-profit entity are not closely
related to those performed by the State in its
sovereign capacity nor do they partake of the
nature of a public duty.
19. The Governing Body of the Mission is
constituted by members of the Board of Trustees
of Ramakrishna Math and is vested with the
power and authority to manage the organisation.
The properties and funds of the Mission and its
management vest in the Governing Body. Any
person can become a member of the Mission
if elected by the Governing Body. Members
on roll form the quorum of the annual general
meetings. The Managing Committee comprises
of members appointed by the Governing
Body for managing the affairs of the Mission.
Under the Memorandum of Association and
Rules and Regulations of the Mission, there
is no governmental control in the functioning,
administration and day-to-day management of
the Mission. The conditions of service of the
employees of the hospital are governed by
service rules which are framed by the Mission
without the intervention of any governmental
body.
20. In coming to the conclusion that the
appellants fell within the description of an
authority under Article 226, the High Court
placed a considerable degree of reliance on the
judgment of a two-Judge Bench of this Court
in Andi Mukta [Andi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti
Mahotsav Smarak Trust v. V.R. Rudani (1989)
2 SCC 691 : AIR 1989 SC 1607]. Andi Mukta
[Andi Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak
Trust v. V.R. Rudani (1989) 2 SCC 691 :
[2024] 7 S.C.R.  2233

Army Welfare Education Society New Delhi v.

Sunil Kumar Sharma & Ors. Etc.

AIR 1989 SC 1607] was a case where a public

trust was running a college which was affiliated
to Gujarat University, a body governed by the
State legislation. The teachers of the University
and all its affiliated colleges were governed,
insofar as their pay scales were concerned, by
the recommendations of the University Grants
Commission. A dispute over pay scales raised
by the association representing the teachers of
the University had been the subject-matter of an
award of the Chancellor, which was accepted by
the Government as well as by the University. The
management of the college, in question, decided
to close it down without prior approval. A writ
petition was instituted before the High Court for
the enforcement of the right of the teachers to
receive their salaries and terminal benefits in
accordance with the governing provisions. In
that context, this Court dealt with the issue as
to whether the management of the college was
amenable to the writ jurisdiction. A number of
circumstances weighed in the ultimate decision
of this Court, including the following:
20.1. The trust was managing an affiliated
college.
20.2. The college was in receipt of
government aid.
20.3. The aid of the Government played a
major role in the control, management and
work of the educational institution.
20.4. Aided institutions, in a similar manner
as government institutions, discharge a
public function of imparting education to
students.
20.5. All aided institutions are governed by
the rules and regulations of the affiliating
University.
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20.6. Their activities are closely supervised

by the University.
20.7. Employment in such institutions is
hence, not devoid of a public character
and is governed by the decisions taken
by the University which are binding on the
management.
21. It was in the above circumstances that this
Court came to the conclusion that the service
conditions of the academic staff do not partake
of a private character, but are governed by a
right-duty relationship between the staff and the
management. A breach of the duty, it was held,
would be amenable to the remedy of a writ of
mandamus. While the Court recognised that
“the fast expanding maze of bodies affecting
rights of people cannot be put into watertight
compartments”, it laid down two exceptions
where the remedy of mandamus would not be
available:- (SCC p. 698, para 15)
‘15. If the rights are purely of a private
character no mandamus can issue. If the
management of the college is purely a
private body with no public duty mandamus
will not lie. These are two exceptions to
mandamus.’
22. Following the decision in Andi Mukta [Andi
Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak
Trust v. V.R. Rudani (1989) 2 SCC 691 : AIR
1989 SC 1607] , this Court has had the occasion
to re-visit the underlying principles in successive
decisions. This has led to the evolution of
principles to determine what constitutes a “public
duty” and “public function” and whether the writ
of mandamus would be available to an individual
who seeks to enforce her right.
x x x x
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Army Welfare Education Society New Delhi v.

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25. A similar view was taken in Ramesh

Ahluwalia v. State of Punjab (2012) 12 SCC
331 : (2013) 3 SCC (L&S) 456 : 4 SCEC 715],
where a two-Judge Bench of this Court held that
a private body can be held to be amenable to the
jurisdiction of the High Court under Article 226
when it performs public functions which are
normally expected to be performed by the State
or its authorities.
26. In Federal Bank Ltd. v. Sagar Thomas
(2003) 10 SCC 733] , this Court analysed the
earlier judgments of this Court and provided a
classification of entities against whom a writ
petition may be maintainable : (SCC p. 748,
para 18)
‘18. From the decisions referred to above,
the position that emerges is that a writ
petition under Article 226 of the Constitution
of India may be 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
public duty or positive obligation of public
nature; and (viii) a person or a body under
liability to discharge any function under
any statute, to compel it to perform such
a statutory function.’ ”
69. The aforesaid decision of this Court in Ramakrishna
Mission (supra) came to be considered exhaustively by
a Full Bench of the High Court of Allahabad in Uttam
Chand Rawat v. State of U.P. reported in (2021) 6 ALL
LJ 393 (FB), wherein the Full Bench was called upon to
answer the following question:- (Uttam Chand Rawat case,
SCC OnLine All para 1)
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“1. …(i) Whether the element of public function

and public duty inherent in the enterprise that an
educational institution undertakes, conditions of
service of teachers, whose functions are a sine
qua non to the discharge of that public function
or duty, can be regarded as governed by the
private law of contract and with no remedy
available under Article 226 of the Constitution?”
70. The Full Bench proceeded to answer the aforesaid
question as under:- ((Uttam Chand Rawat case,
SCC OnLine All paras 16-20)
“16. The substance of the discussion made
above is that a writ petition would be maintainable
against the authority or the person which may be
a private body, if it discharges public function/
public duty, which is otherwise primary function
of the State referred in the judgment of the
Supreme Court in Ramakrishna Mission (supra)
and the issue under public law is involved.
The aforesaid twin test has to be satisfied for
entertaining writ petition under Article 226 of the
Constitution of India.
17. From the discussion aforesaid and in the light
of the judgments referred above, a writ petition
under Article 226 of the Constitution would
be maintainable against (i) the 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
public duty or positive obligation of public nature;
and (viii) a person or a body under liability to
discharge any function under any statute, to
compel it to perform such a statutory function.
18. There is thin line between “public functions”
and “private functions” discharged by a person
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or a private body/authority. The writ petition

would be maintainable only after determining the
nature of the duty to be enforced by the body
or authority rather than identifying the authority
against whom it is sought.
19. It is also that even if a person or authority is
discharging public function or public duty, the writ
petition would be maintainable under Article 226
of the Constitution, if Court is satisfied that
action under challenge falls in the domain of
public law, as distinguished from private law.
The twin tests for maintainability of writ are as
follows:
1. The person or authority is discharging
public duty/public functions.
2. Their action under challenge falls
in domain of public law and not under
common law.
20. The writ petition would not be maintainable
against an authority or a person merely for the
reason that it has been created under the statute
or is to be governed by regulatory provisions. It
would not even in a case where aid is received
unless it is substantial in nature. The control of
the State is another issue to hold a writ petition
to be maintainable against an authority or a
person.”  (Emphasis supplied)
71. We owe a duty to consider one relevant aspect of the
matter. Although this aspect which we want to take notice
of has not been highlighted by Respondent 1, yet we must
look into the same. We have referred to the CBSE Affiliation
Bye-laws in the earlier part of our judgment. Appendix IV
of the Affiliation Bye-laws is with respect to the minority
institutions. Clause 6 of Appendix IV is with respect to the
disciplinary control over the staff in a minority educational
institution. We take notice of the fact that in Clause 6, the
State has the regulatory power to safeguard the interests
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of their employees and their service conditions including

the procedure for punishment to be imposed.
72. For the sake of convenience and at the cost of
repetition, we quote Clause 6 once again as under:
“6. Disciplinary control over staff in
Minority Educational Institutions.—While the
managements should exercise the disciplinary
control over staff, it must be ensured that they
hold an inquiry and follow a fair procedure
before punishment is given. With a view to
preventing the possible misuse of power by
the management of the Minority Educational
Institutions, the State has the regulatory
power to safeguard the interests of their
employees and their service conditions including
procedure for punishment to be imposed.”
(Emphasis supplied)
73. It could be argued that as the State has regulatory
power to safeguard the interests of the employees serving
with the minority institutions, any action or decision taken
by such institution is amenable to writ jurisdiction under
Article 226 of the Constitution.
74. In the aforesaid context, we may only say that merely
because the State Government has the regulatory power,
the same, by itself, would not confer any such status upon
the institution (school) nor put any such obligations upon it
which may be enforced through issue of a writ under Article
226 of the Constitution. In this regard, we may refer to
and rely upon the decision of this Court in Federal Bank
(supra). While deciding whether a private bank that is
regulated by the Banking Regulation Act, 1949 discharges
any public function, this Court held thus:-
(Ramakrishna Mission case, SCC pp. 315-16, paras 33-35)
“33. … ‘33… ‘in our view, a private company
carrying on banking business as a scheduled
bank, cannot be termed as an institution or a
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Army Welfare Education Society New Delhi v.

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company carrying on any statutory or public duty.

A private body or a person may be amenable
to writ jurisdiction only where it may become
necessary to compel such body or association
to enforce any statutory obligations or such
obligations of public nature casting positive
obligation upon it. We do not find such conditions
are fulfilled in respect of a private company
carrying on a commercial activity of banking.
Merely regulatory provisions to ensure such
activity carried on by private bodies work within
a discipline, do not confer any such status
upon the company nor put any such obligation
upon it which may be enforced through issue
of a writ under Article 226 of the Constitution.
Present is a case of disciplinary action being
taken against its employee by the appellant
Bank. The respondent’s service with the Bank
stands terminated. The action of the Bank was
challenged by the respondent by filing a writ
petition under Article 226 of the Constitution of
India. The respondent is not trying to enforce
any statutory duty on the part of the Bank.’
(Federal Bank case, SCC pp. 758-59, para 33)
34. Thus, contracts of a purely private nature
would not be subject to writ jurisdiction merely
by reason of the fact that they are structured by
statutory provisions. The only exception to this
principle arises in a situation where the contract
of service is governed or regulated by a statutory
provision. Hence, for instance, in K.K. Saksena
[K.K. Saksena v. International Commission on
Irrigation & Drainage (2015) 4 SCC 670 : (2015)
2 SCC (Civ) 654 : (2015) 2 SCC (L&S) 119] this
Court held that when an employee is a workman
governed by the Industrial Disputes Act, 1947, it
constitutes an exception to the general principle
that a contract of personal service is not capable
of being specifically enforced or performed.
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35. It is of relevance to note that the Act was

enacted to provide for the regulation and
registration of clinical establishments with a view
to prescribe minimum standards of facilities and
services. The Act, inter alia, stipulates conditions
to be satisfied by clinical establishments for
registration. However, the Act does not govern
contracts of service entered into by the hospital
with respect to its employees. These fall within
the ambit of purely private contracts, against
which writ jurisdiction cannot lie. The sanctity
of this distinction must be preserved.”
(Emphasis in original and supplied)
41. The final conclusion drawn in the said decision is reproduced herein:-
“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. 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
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“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.
But such interference will be on the ground of breach of
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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 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.
ii. Doctrine of Legitimate Expectation
43. During the course of the arguments, a submission was canvassed
that the respondents were under a legitimate expectation that their
service conditions and salary would not be unilaterally altered
by the appellant society to their disadvantage. Thus, as the
respondents were neither consulted with nor taken in confidence
by the appellant society before effecting the changes in their
service conditions, it amounted to a breach of their legitimate
expectation, thereby making it a fit case for the exercise of writ
jurisdiction by the High Court.
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44. The doctrine of legitimate expectation was also referred to and relied
upon by the single Judge of the High Court as one of the reasons
to allow the writ petition filed by the respondents. The relevant
observations made by the single Judge in the judgment and order
dated 05.08.2014 are reproduced hereinbelow:-
“28. We also have to appreciate the “legitimate expectations”
of the petitioners who expect equity, fairplay 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 15 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.”
45. Before parting with the matter, we deem it necessary to answer the
aforesaid submission of the respondents. This Court in Union of
India v. Hindustan Development Corporation reported in (1993) 3
SCC 499 enunciated that the doctrine of legitimate expectation is a
creature of public law aimed at combating arbitrariness in executive
action by public authorities. It held thus:-
“Time is a three-fold present: the present as we experience
it, the past as a present memory and future as a present
expectation. For legal purposes, the expectation cannot
be the same as anticipation. It is different from a wish, a
desire or a hope nor can it amount to a claim or demand
on the ground of a right. However earnest and sincere a
wish, a desire or a hope may be and however confidently
one may look to them to be fulfilled, they by themselves
cannot amount to an assertable expectation and a mere
disappointment does not attract legal consequences. A
pious hope even leading to a moral obligation cannot
amount to a legitimate expectation. The legitimacy of an
expectation can be inferred only if it is founded on the
sanction of law or custom or an established procedure
followed in regular and natural sequence. Again, it
is distinguishable from a genuine expectation. Such
expectation should be justifiably legitimate and protectable.
Every such legitimate expectation does not by itself fructify
into a right and therefore it does not amount to a right in
the conventional sense.”
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46. In Ram Pravesh Singh v. State of Bihar reported in (2006) 8

SCC 381, this Court explained the doctrine of legitimate expectation
in details as follows:-
“What is legitimate expectation? Obviously, it is not a
legal right. It is an expectation of a benefit, relief or
remedy, that may ordinarily flow from a promise or
established practice. The term “established practice”
refers to a regular, consistent, predictable and certain
conduct, process or activity of the decision-making
authority. The expectation should be legitimate, that is,
reasonable, logical and valid. Any expectation which is
based on sporadic or casual or random acts, or which is
unreasonable, illogical or invalid cannot be a legitimate
expectation. Not being a right, it is not enforceable
as such. It is a concept fashioned by the courts, for
judicial review of administrative action. It is procedural in
character based on the requirement of a higher degree
of fairness in administrative action, as a consequence
of the promise made, or practice established. In short, a
person can be said to have a “legitimate expectation” of
a particular treatment, if any representation or promise is
made by an authority, either expressly or impliedly, or if
the regular and consistent past practice of the authority
gives room for such expectation in the normal course. As
a ground for relief, the efficacy of the doctrine is rather
weak as its slot is just above “fairness in action” but
far below “promissory estoppel”. It may only entitle an
expectant : (a) to an opportunity to show cause before
the expectation is dashed; or (b) to an explanation as
to the cause for denial. In appropriate cases, the courts
may grant a direction requiring the authority to follow the
promised procedure or established practice. A legitimate
expectation, even when made out, does not always
entitle the expectant to a relief. Public interest, change
in policy, conduct of the expectant or any other valid or
bona fide reason given by the decision-maker, may be
sufficient to negative the “legitimate expectation”. The
doctrine of legitimate expectation based on established
practice (as contrasted from legitimate expectation based
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on a promise), can be invoked only by someone who has

dealings or transactions or negotiations with an authority,
on which such established practice has a bearing, or
by someone who has a recognised legal relationship
with the authority. A total stranger unconnected with the
authority or a person who had no previous dealings with
the authority and who has not entered into any transaction
or negotiations with the authority, cannot invoke the
doctrine of legitimate expectation, merely on the ground
that the authority has a general obligation to act fairly.”
47. In Jitender Kumar v. State of Haryana reported in (2008) 2 SCC 161,
this Court, while differentiating between legitimate expectation on
the one hand and anticipation, wishes and desire on the other,
observed thus:-
“A legitimate expectation is not the same thing as an
anticipation. It is distinct and different from a desire and
hope. It is based on a right. [See Chanchal Goyal (Dr.)
v. State of Rajasthan [(2003) 3 SCC 485 : 2003 SCC
(L&S) 322] and Union of India v. Hindustan Development
Corpn. [(1993) 3 SCC 499] It is grounded in the rule of
law as requiring regularity, predictability and certainty in
the Government’s dealings with the public. We have no
doubt that the doctrine of legitimate expectation operates
both in procedural and substantive matters.”
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;
d. Fourthly, legitimate expectation operates in relation to both
substantive and procedural matters;
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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.
49. The aforesaid features, although not exhaustive in nature, are
sufficient to help us in deciding the applicability of the doctrine of
legitimate expectation to the facts of the case at hand. It is clear
that legitimate expectation, jurisprudentially, was a device created
in order to maintain a check on arbitrariness in state action. It does
not extend to and cannot govern the operation of contracts between
private parties, wherein the doctrine of promissory estoppel holds
the field.
50. We have discussed in detail in preceding paragraphs that even if
the function being performed by a private educational institution in
imparting education may be considered as a public function, the
relationship between the administration of such an institution and
its employees remains a contractual one, falling within the ambit of
private law.
51. Nothing has been placed on record by the respondents to show that
any express or implied promise was made by the appellant regarding
keeping their salary and service conditions intact. There have been
no past negotiations or dealings between the respondents and the
appellant society as the dispute arose as soon as the appellant took
over the administration of the school. Moreover, there is no statutory
obligation on the appellant society which requires that the salaries
and allowances of the respondents are to be kept at par with what is
payable to teachers of Government institutions. Lastly, the appellant
society, for the purposes of its relationship with its employees, cannot
be regarded as a public or Government authority.
52. We are of the view that for all the aforesaid reasons, the doctrine
of legitimate expectation will have no applicability to the facts of the
present case. The submission of the respondents in that regard is
thus answered accordingly.
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H. CONCLUSION
53. In the result, the appeals succeed and are hereby allowed. The
impugned judgment and order passed by the High Court is hereby
set aside.
54. Although we have set aside the impugned judgment and order passed
by the High Court, yet having regard to the submissions made on
behalf of the appellants as recorded in paragraph 6 of the order dated
15.02.2021 (extracted in paragraph 4 herein above) as also the fact
that all the respondents as on date are serving with the appellant
society, they shall continue to serve on the terms and conditions as
stipulated by the appellant society. The appellant society shall not
discharge the respondents from service.
55. There shall be no order as to costs.

Result of the case: Appeals allowed.

†
Headnotes prepared by: Ankit Gyan