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An alternative relief for treating the rules to be applicable prospectively has also been made in the writ petition and the petitioner, inter alia, seeks his continuance in service on the basis of his renewal vide order dated 20.10.2015, according to which the contract of service in relation to the petitioner was renewed up to 31.10.2016.

A preliminary objection has been raised by Sri Alok Mathur, learned counsel for the respondents no. 2 and 3, who has filed objections, wherein, relying upon a Division Bench judgement of this Court in the case of Union of India v. Dililp Kumar Pandey 2010 (7) ADJ 97, and a Division Bench judgement of Jammu and Kashmir High Court rendered in the case of Mrs. Asha Khosa v. Chairman, Army Public School, Northern Command and others [Writ Petition (Service) No. 1415 of 1996 decided on 17.2.1997], it is urged that the writ petition in respect of the relief as a whole is not maintainable hence liable to be dismissed at the admission stage. In the body of preliminary objections, it is averred that the Society i.e. Army Welfare Education Society, is a body registered under the Societies Registration Act, 1860 which, of course, does comprise of army personnel as ex-officio members but there is no control of the Central Government either financial or otherwise, which may bring the said Society within a pervasive control of the Central Government so as to be treated as other authority or instrumentality of the State under Article 12 of the Constitution of India, notwithstanding the fact that the Society does cater the public purpose of education for the children of army and ex-army personnel.

Undisputedly Army Welfare Education Society is a Society registered under the Society Registration Act, 1860. The Society comprises of the army personnel and the objects of the Society are contained in Memorandum of Association, which include education for the children of army personnel/ ex-army personnel as one of the fundamental objects.

In the instant case, a body registered under the Societies Registration Act, 1860 i.e. Army Welfare Education Society which comprises of the members of army while in service, its legal status first of all, will have to be tested within the ambit of freedom guaranteed under Article 19 (1) (c) available to a citizen qua the army officers who are governed under the Army Act, 1950. Section 21 of the Army Act, 1950 places certain restrictions upon the fundamental rights available to the persons who are governed under Army Act which reads as under:

The abrogation of rights under the aforesaid Act and the rules framed thereunder clearly demonstrates that the constitution of AWES under Societies Registration Act, 1860, cannot be said to confer any statutory or other rights including exercise of statutory authority unless it has the sanction of the Central Government.

In the pleadings on record it is nowhere mentioned that the constitution of AWES and participation of army personnel therein was sanctioned by the Central Government, therefore, having no option but to proceed on an assumption that a sanction may have been obtained for registration of AWES, the question would be whether such a sanction which goes to the root of the constitution of AWES would enable the Society to derive a status of other authority within the meaning of Article 12 of the Constitution of India.

The 'Sovereign State' is a broad model of human co-existence in the universe which has developed over centuries now. This model concept is governed by rule of law written or unwritten. In our sovereign State, the citizens are governed under a written constitution which guarantees a set of fundamental rights under Part-III of the Constitution of India. It is important to know that Part-III of the Constitution of India guarantees civil rights to the life and growth of citizens and other legal persons within their independent or self acquired lawful means. It is in the backdrop of these civil rights available to the serving army personnel under article 19 (1)(c) of the Constitution of India that a Society known as AWES has come to be registered under the Societies Registration Act, 1860. The Society for the purposes and objects sought to be achieved is a private body having the existence of a legal person and participation of any army officer in his ex-officio capacity in the affairs of the Society, is purely discharge of private duties and no action in such a capacity can be assumed to derive sanctity of sovereign public law which may be amenable to the writ jurisdiction treating it to be an action of public authority. It is to be noted that there is no classification of the Societies provided under the Societies Registration Act, 1860 drawing a distinction between a Society run by private persons and persons employed in civil or army service so long as it is governed by the Societies Registration Act, 1860. If the Society has a private character then, by virtue of its registration under the Societies Registration Act, 1860, any action of any office bearer irrespective of his status in civil or army service, is inconsequential and does not have a trapping of sovereign authority or public authority amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India. The rights guaranteed under Part-III of the Constitution of India by their very nature being civil shall not assume the character of a sovereign/public function so long as the tests of three dimensional theory are satisfied which postulate (a) financial control; (b) pervasive administrative control; and (c) the public purpose.