Punjab-Haryana High Court
Mrs. Sudha Soin vs Union Of India And Others on 20 February, 2009
Author: Ajai Lamba
Bench: Ajai Lamba
CWP No.6834 of 1996
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.6834 of 1996
Date of decision : 20-2-2009
Mrs. Sudha Soin
....Petitioner
VERSUS
Union of India and others
....Respondents
CORAM:- HON'BLE MR. JUSTICE AJAI LAMBA
Present: Mr. S.C. Chhabra, Advocate,
for the petitioner.
Mr. Tribhuwan Dahiya, Advocate,
for the respondents.
AJAI LAMBA, J. (Oral)
This Civil Writ Petition under Articles 226/227 of the Constitution of India prays for issuance of a writ in the nature of certiorari for quashing order dated 19-2-1996 (Annexure P-4).
Vide the impugned order (Annexure P-4), the Management Committee of the Army School, Ferozepur Cantt. after giving three months notice to the petitioner, terminated the service of the petitioner under Article 116(b) of the Army Welfare Education Society (for short "AWES") Regulations.
Learned counsel appearing for the respondents has pointed out that the action of the respondent - School has been CWP No.6834 of 1996 -2- challenged. The respondent - School is run by AWES which is not a State within the meaning of Article 12 of the Constitution of India. In this regard, the aims and objectives of the AWES have been given out in the written statement. Under the circumstances the writ petition is not maintainable as Government has no control over the AWES or the school.
Learned counsel appearing for the petitioner has not been able to controvert the facts.
I have considered the issue raised.
Regulations 226 to 229 are relevant for consideration in the context of the contention raised by the learned counsel for the respondents. The same read as under:-
"Finances:
226. Army Welfare Education Society (AWES) will provide a corpus grant which the school authorities must invest in Fixed Deposits with authorised Public Sector Undertakings to earn them maximum interests.
Sources of income to meet the recurring expenditure are as under:-
a) Interest on corpus grant
b) Tuition fee
c) Other fees.
d) Donations and grants
e) Sundry interests.
227. The school will be run as a financially self- supporting institution. Tuition fees and other charges will be levied as per the general policy of the Society with a view to fully meeting all recurring and non- recurring expenditure;
228. Where funds required for expansion of the CWP No.6834 of 1996 -3- School cannot be found from the Reserve Funds, the Management may raise them by organising fetes, securing grants-in-aid, donations, voluntary contribution or by such other means as it may deem fit;
229. All surplus amount over and above the day-to- day requirement of the school shall be carefully invested in short and long term deposits to earn maximum possible interest."
A perusal and consideration of the afore-reproduced provisions establishes that AWES is run on voluntary donations or fees etc. as given out in the Regulations. The AWES is not dependent on the Government and the Government has no control over the management.
Counsel appearing for the respondents has relied on a judgment of the Allahabad High Court rendered in Army School, Kunraghat Vs. Smt. Shilpi Paul, 2005(5) Services Law Reporter
664. Paras 22, 22-A and 23 are relevant in this regard and the same read as under:-
"22. The test as to which body can be regarded as an instrumentality or an agency of the State has been laid down in a series of the decisions of the Supreme Court and it is not necessary to refer to all of them. The latest decision is General Manager, Kisan Sahkari Chini Mills Ltd. v. Satrughan Nishad, (2003) 8 SCC 639 : [2004(1) SLR 361 (SC)]. In that decision the question was whether the Kisan Sahkari Chini Mills was State under Article 12 of the Constitution and hence amenable to writ jurisdiction. The mill was a cooperative society registered under the U.P. CWP No.6834 of 1996 -4- Co-operative Societies Act, 1965. The Supreme Court held that the State had no control at all in the functioning of the mill much less a deep and pervasive one. Hence, it was held that Kisan Sahkari Chini Mills was not State under Article 12 of the Constitution. The Supreme Court referred to the Constitution Bench decision of the Supreme Court in Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : [1980(3) SLR 467 (SC)] wherein it was observed :
"The tests for determining as to when a corporation can be said to be an instrumentality or agency of Government may now be culled out from the judgment in the International Airport Authority case (1979) 3 SCC 489. These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression 'other authorities', it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the International Airport Authority case (supra) as follows:
(1) One thing is clear that if the entire share capital of the corporation is held by the Government, it would go a long way towards indicating that the corporation is 'an instrumentality or agency of Government. (SCC p. 507, para 14); (2) Where the financial assistance of the CWP No.6834 of 1996 -5- State is so much as to meet almost the entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with Governmental character. (SCC p. 508, para 15);
(3) It may also be a relevant factor ....
Whether the corporation enjoys monopoly status which is State conferred or State protected. (SCC p. 508 para 15) (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (SCC p. 508, para 15); (5) If the functions of the corporation are of public importance and closely related to Governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government (SCC p. 509, para
16);
(6) 'Specifically, if a department of
Government is transferred to a
corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of Government. (SCC p.510, para
18);
If on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of Government, it would as pointed out in the International Airport Authority case (AIR 1979 SC 1628) (supra), be an 'authority' and therefore, 'State' within the meaning of the expression in CWP No.6834 of 1996 -6- Article 12."
22-A We agree with the view taken by the learned single Judge in V.K. Walia v. Chairman, Army School Mathura Cantt., (2004 AII LJ 53) (supra) and we do not agree with the view taken by the learned single Judge in Smt. Rajni Sharma v. Union of India (1995 AII LJ
851) (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.
23. A similar view was taken by a Division Bench of the Jammu and Kashmir High Court in Mrs. Asha Khosa v. Chairman, Army Public School, Writ Petition No.1415 of 1996 decided on 17-2-1997 in which the Division Bench of that Court held that the writ petition was not maintainable as the Army Welfare Educational Society is not an instrumentality of the State under Article 12 of the Constitution. Against the judgment of the Jammu and Kashmir High Court a Special Appeal No.6482 of 1997 was filed before the Supreme Court which was dismissed on 31-3-1997. We fully agree with the view taken by the Jammu and Kashmir High Court in the aforesaid decision."
On a particular reference to Para 23 reproduced above, it transpires that the view taken by the Jammu and Kashmir High Court in the case of Mrs. Asha Khosa v. Chairman, Army Public School, Writ Petition No.1415 of 1996 decided on 17-2-1997 to the effect that writ petition was not maintainable as AWES is not an instrumentality of the State under Article 12 of the Constitution of India, was challenged before the Hon'ble Supreme Court of India.
CWP No.6834 of 1996 -7-The Hon'ble Supreme Court of India dismissed the Special Appeal No.6482 of 1997 on 31-3-1997.
On consideration of regulations extracted herein above, it follows that the State has no control, much less deep and pervasive control, over the respondent-school or society governing it.
Financial assistance is not given by the Government, rather school is maintained by the interest on corpus grant, tuition fees, other fees, donations and sundry interests. It is a financially self supporting institution. The respondent-school or society managing it are not State within the meaning of Article 12 of the Constitution of India.
The writ petition, accordingly, is not maintainable against the respondents for the aforesaid reasons.
The petition is, accordingly, dismissed.
The petitioner would be at liberty to avail alternative remedies, if so advised.
No order as to costs.
(AJAI LAMBA)
20-2-2009 JUDGE
manju