Dileep Kumar Pandey vs. Union Of India

2025 INSC 749
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10899 OF 2013

Dileep Kumar Pandey … Appellant
versus
Union of India & Ors. … Respondents
with
CIVIL APPEAL NO.11378 OF 2013
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. The issue involved in these two appeals is whether
the Air Force School, Bamrauli, in District Allahabad, is a
‘state or authority’ within the meaning of Article 12 of the
Constitution of India.
2. Air Force Schools were established in the year 1966
for imparting education to the children of the personnel
of the Indian Air Force (IAF). Indian Air Force
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2025.05.26
12:44:23 IST
Reason:
Educational and Cultural Society (for short, ‘the Society’)
Civil Appeal No.10899 of 2013, etc. Page 1 of 23

was registered under the Societies Registration Act, 1860.
th
It was registered on 10 November 1987. It was
established to manage Air Force Schools. The Air Force
Schools at Bamrauli (for short, ‘the said school’) applied
for affiliation with the Central Board of Secondary
Education (CBSE) in 1985.
FACTS IN CIVIL APPEAL NO.10899 OF 2013
3. According to the case of the appellant (Dileep Kumar
Pandey) in Civil Appeal No.10899 of 2013, pursuant to a
public advertisement and selection process conducted by
st
the officers of the IAF, on 1 July 2005, he was appointed
as a trained graduate teacher in the subject of physical
education in the said school. According to his case, he
was appointed on probation, and the probation period
th
was extended from time to time. On 28 June 2007, an
order was served upon the appellant stating that he was
rendered surplus as the said school decided to appoint a
more qualified teacher. An option was given to the
appellant either to remain employed in the said school on
st
contractual basis on a fixed salary from 1 July 2007 to
May 2008 or to remain employed under the existing
arrangement under which his service would come to an
rd
end on 3 July 2007. Therefore, the appellant filed a writ
petition before the Single Judge of the High Court, inter
alia, praying for a declaration that the appellant is a
Civil Appeal No.10899 of 2013, etc. Page 2 of 23

confirmed teacher in the said school. The writ petition
th
was allowed by order dated 13 January 2010 by a
learned Single Judge by holding that the said school was
a ‘State’ within the meaning of Article 12 of the
Constitution of India and was amenable to the
jurisdiction of the High Court. The learned Single Judge,
after setting aside the impugned orders, observed that it
will be open to the Society to consider the claim of the
appellant for confirmation in accordance with the law.
An appeal was preferred before the Division Bench
essentially on behalf of the management of the said
school, which was allowed by the impugned judgment
th
dated 12 July 2010. The Division Bench held that the
said school was not a state within the meaning of Article
12, and as a result, a writ petition under Article 226
could not be entertained. Hence, the judgment of the
learned Single Judge was set aside.
FACTS IN CIVIL APPEAL NO.11378 OF 2013
4. The appellant Sanjay Kumar Sharma was appointed
th
as a post-graduate teacher (Commerce) on 19 June 1993
and was later on confirmed by the Officer-in-Charge of
the said school. The Officer-in-Charge was an officer of
rd
the IAF. On 3 March 2003, he was appointed as the
officiating Principal of the said school by Wing
Civil Appeal No.10899 of 2013, etc. Page 3 of 23

Commander Ajay Kumar, Officer-in-Charge. According to
th
the case of the appellant, the 6 respondent, Smt. Shalini
Kaul has started acting as the principal without taking
over charge of the post. Disciplinary proceedings were
th
initiated against him by the 6 respondent. Later on, at
th
the instigation of the 6 respondent, girl students filed a
complaint against the appellant. On the basis of various
th
allegations, a show cause notice dated 19 December
rd
2005 was issued to the appellant. On 23 February
2006, a charge sheet was filed against the appellant.
There were two writ petitions filed by the appellant. First
was the writ petition No.12437 of 2006, wherein the
th
appellant sought to challenge the appointment of the 6
respondent as the principal. Writ petition No.19915 of
2006 was filed by the appellant for challenging the charge
rd th
sheet dated 23 February 2006. By the order dated 5
July 2006, though the learned Single Judge held that
petitions were maintainable, it was observed that as
disciplinary proceedings were pending against the
appellant, no interference should be made.
5. There were two special appeals preferred by the
th
appellant for challenging the judgment dated 5 July
th
2006 of the learned Single Judge. By order dated 11
September 2006, the order of remand was passed by the
Division Bench of the High Court to the Single Judge.
Civil Appeal No.10899 of 2013, etc. Page 4 of 23

th
Learned Single Judge by his order dated 16 September
2010 dismissed the writ petitions by relying upon the
judgment impugned in Civil Appeal No.10899 of 2013.
Thereafter, the appellant was terminated from service. A
special Appeal was preferred by the appellant against the
th
judgment and order dated 16 September 2010 in Writ
Petition No.19915 of 2006. By the impugned judgment
nd
and order dated 2 November 2010, the Division Bench
dismissed the appeal on the ground that the writ petition
was not maintainable.
SUBMISSIONS OF THE APPELANTS
6. The learned senior counsel appearing for the
appellants submitted that the primary function of the Air
Force schools is the promotion of education, fine arts and
culture, mainly amongst the past and present employees
of the IAF, their families and children. The learned senior
counsel submitted that the documents on record clearly
show that the Air Force headquarters exercises dominant
control over the administration and functioning of the Air
Force schools. Learned senior counsel relied upon an
application made by the said school to CBSE for
affiliation, in which the said school claimed that it was
fully financed by the IAF. He submitted that all Air Force
school buildings have been constructed using Public
Civil Appeal No.10899 of 2013, etc. Page 5 of 23

Funds under the authorisation of the Ministry of
Defence. He submitted that the pay scales of the school
staff are fixed by the Air Force headquarters, which is the
appropriate authority. The Command Schools
Management Committee has to conform to the pay scales
as issued/recommended by the Directorate of Education,
Air Force Headquarters. He also pointed out that the
Command Schools Management Committee has been
constituted to run Air Force Schools in accordance with
the rules and regulations specified in the Education Code
of Air Force Schools of 2005 (for short, “the Education
Code”).
Inviting our attention to the findings recorded by the
7.
Division Bench of the High Court, he submitted that the
High Court had committed an error in holding that there
was no material on record to show that the said school
had been set up by using government funds and that it
was not established that the institution is not governed
by any statutory regulations. He submitted that there is
enough material on record to show that the IAF exercises
deep and pervasive control over the said school and, in
fact, over all Air Force Schools. He submitted that the
IAF provides financial assistance to Air Force Schools.
He also pointed out that the Society is funded through
Civil Appeal No.10899 of 2013, etc. Page 6 of 23

regimental funds and has received grant-in-aid. He
pointed out that Regimental Funds belong to the IAF.
Learned senior counsel has relied upon the
8.
following decisions of this Court: -
(i) Andi Mukta Sadguru Shree Muktajee
Vandas Swami Suvarna Jayanti
Mahotsav Smarak Trust & Ors. v. V.R.
1
Rudani & Ors.
(ii)
Pradeep Kumar Biswas v. Indian
2
Institute of Chemical Biology & Ors.
(iii) Raj Soni v. Air Officer Incharge
3
Administration & Anr.
(iv) All India Sainik Schools Employees’
Association v. Defence Minister-cum-
Chairman Board of Governors, Sainik
4
Schools Society, New Delhi & Ors. and
(v) Ajay Hasia & Ors. v. Khalid Mujib
5
Sehravardi & Ors.
9. Learned senior counsel submitted that IAF has
functional and administrative control over the said
Society and the said school. Therefore, he submitted that
Air Force Schools are “authority” within the meaning of
Article 12 of the Constitution of India and thus, are
1
1989(2) SCC 691
2 2002 (5) SCC 111
3 1990(3) SCC 261
4 (1989) Supp (1) SCC 205
5 (1981) 1 SCC 722
Civil Appeal No.10899 of 2013, etc. Page 7 of 23

amenable to writ jurisdiction under Article 226 of the
Constitution of India.
SUBMISSIONS OF ADDITIONAL SOLICITOR GENERAL
OF INDIA
10. Learned ASG pointed out that the IAF was
established in the year 1932. Subsequently, Regimental
Schools were established. The Ministry of Defence
allocated funds for establishing schools for Air Force
Officers. However, ownership and tenancy of buildings
for schools, as well as issues related to the land,
remained with the local military administration. She
submitted that the Regulations for the Air Force
(hereinafter referred to as “the Regulations”) define “Non-
Public Funds,” which are also known as “Regimental
Funds.” Learned ASG pointed out that the Regulations
explain the meaning of “Non-Public Funds Accounts”.
She submitted that Air Force Schools are governed by
Non-Public Funds of the Forces. She submitted that the
schools have sources of income that come from Tuition
fees, Interest, Activity fees, Admission fees, Development
fees, Computer fees, and miscellaneous fees. Learned
ASG relied upon the decision of this Court in the case of
6
Union of India & Anr. v. Chotelal & Ors. . She
submitted that the said decision is squarely applicable to
6 1999(1) SCC 554
Civil Appeal No.10899 of 2013, etc. Page 8 of 23

the facts of the case. Learned ASG also relied upon a
decision of this Court in R.R. Pillai (Dead) through LRs.
v. Commanding Officer, Headquarters Southern Air
7
.
Command (U) and Ors.
11. Learned ASG submitted that the entire issue is
covered against the appellants by the decision of this
Court in the case of
Army Welfare Education Society,
8
New Delhi v. Sunil Kumar Sharma & Ors. etc. She
submitted that this decision relied upon the earlier
decision of this Court in the case of
St.Mary’s
Education Society & Anr. v. Rajendra Prasad
9
Bhargava & Ors. .
12. By way of rejoinder, learned counsel appearing for
the appellants submitted that the cases of Army Welfare
8
Education Society and St.Mary’s Education Society
9
& Ors. stand on a different footing. He tried to
distinguish the decisions in the cases of
Army Welfare
8
Education Society and St.Mary’s Education Society
9
& Ors. and submitted that the said decisions will not
apply.
7 (2009) 13 SCC 311
8 (2024) SCC Online SC 1683
9 (2023) 4 SCC 498
Civil Appeal No.10899 of 2013, etc. Page 9 of 23

CONSIDERATION OF SUBMISSIONS
13. By the impugned judgments, the Division Bench of
the Allahabad High Court held that the Society is not a
‘state’ within the meaning of Article 12 of the
Constitution. We must refer to the assertions made by
the appellant in the writ petition filed before the Single
Judge of the High Court on this aspect. In the writ
petition that is the subject matter of Civil Appeal No.
10899 of 2013, in paragraphs 5 to 7, the appellant has
stated thus:
"5. That for the effective management
and administration of the Air Force
School at various units, the Society
has framed an Education Code Air
Force Schools 2005. The Code
aforesaid is identical to Education
Code framed for the managing to
Kendriya Vidyalay.
6. That the Air Force Schools are
financed by the Central Government,
through Indian Air Force School,
controlled by the officers of the
Indian Air Force and the purposes is
to impart education to the children of
officers and employees of the Indian
Air Force. The Air Force Schools
come within the meaning of the word
Civil Appeal No.10899 of 2013, etc. Page 10 of 23

"State" under Article 12 of the
Constitution of India.
7. That the Air Force School,
Bamrauli, Allahabad, is a school
established by the aforesaid Society
and the said school comes under the
definition of "State" under Article 12
of the Constitution of India.”
14. In the counter filed before the High Court, the
respondents contended that the Society is a non-profit
making welfare association and the said school is a non-
public fund school. The finance is arranged from the fees
collected from students under various heads, and the air
force personnel make a contribution through their welfare
fund. It is specifically pleaded that neither in the welfare
fund nor in the school finances is any money of the
Central Government involved. Moreover, there is no
control by the Central Government or the Ministry of
Defence over the running or management of the school.
While addressing the contents of paragraph 5 of the
petition, it is specifically pleaded that the Education Code
issued by the Society is not identical to the Education
Code issued by the CBSE or Kendriya Vidyalaya. It is
reiterated, while dealing with paragraph 6 of the writ
petition, that the said school does not receive any grant
from any agency having a link to any of the governments.
Civil Appeal No.10899 of 2013, etc. Page 11 of 23

15. Now, we will refer to the law laid down on this
aspect. Paragraphs 15 and 20 of the decision of this
Court in the case of Andi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti Mahotsav
1
Smarak Trust read thus:
“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. 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 appellants
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
Civil Appeal No.10899 of 2013, etc. Page 12 of 23

public character. [ See The
Evolving Indian Administrative
Law by M.P. Jain (1983), p. 226] 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.
.. .. .. .. .. .
20. The term “authority” used in
Article 226, in the context, must
receive a liberal meaning unlike 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.
Civil Appeal No.10899 of 2013, etc. Page 13 of 23

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 added)
2
In the case of this Court
16. Pradeep Kumar Biswas ,
dealt with the aspect of control over the institution. This
Court relied upon the decision in the case of Ajay
5
Hasia . In paragraph 40, this Court held thus:
“40. The picture that ultimately
emerges is that the tests formulated
in Ajay Hasia [ Ajay Hasia v. Khalid
Mujib Sehravardi , (1981) 1 SCC 722 :
1981 SCC (L&S) 258] are not a rigid
set of principles so that if a body falls
within any one of them it must, ex
hypothesi, be considered to be a
State within the meaning of Article
12. The question in each case
would be — whether in the light of
the cumulative facts as
established, the body is financially,
functionally and administratively
dominated by or under the control
of the Government. Such control
must be particular to the body in
Civil Appeal No.10899 of 2013, etc. Page 14 of 23

17. In the case of All India Sainik Schools
4,
as a matter of fact, it was
Employees Association
found that the entire funding for running the school was
provided by the State and Central Governments. Even the
overall control was found vested in governmental
authority.
3
18. In the case of , this Court, as can be seen
Raj Soni
from paragraph 10, found that it was not necessary to
decide whether or not the school is a ‘state’ or ‘authority’
under Article 12 of the Constitution of India.
19. Now, we turn to the decision of this Court in the
9
case of St.Mary’s Education Society . It is true that
this Court did not consider the decision of this Court in
the case of Andi Mukta Sadguru Shree Muktajee
Vandas Swami Suvarna Jayanti Mahotsav Smarak
1
of this Court. However, this Court has discussed
Trust
all relevant principles. The principles laid down in the
said decision in the case of St.Mary’s Education
Civil Appeal No.10899 of 2013, etc. Page 15 of 23

are in paragraphs 75.1 to 75.5, which
Society & Ors.
read thus:
“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
Civil Appeal No.10899 of 2013, etc. Page 16 of 23

contracts without having any public
element as its integral part cannot be
rectified through a writ petition
under Article 226. Wherever Courts
have intervened in their exercise of
jurisdiction under Article 226, either
the service conditions were regulated
by the statutory provisions or the
employer had the status of “State”
within the expansive definition under
Article 12 or it was found that the
action complained of has public law
element.
75.3. It must be consequently held
that while a body may be discharging
a public function or performing a
public duty and thus its actions
becoming amenable to judicial review
by a constitutional court, its
employees would not have the right
to invoke the powers of the High
Court conferred by Article 226 in
respect of matter relating to service
where they are not governed or
controlled by the statutory
provisions. An educational
institution may perform myriad
functions touching various facets of
public life and in the societal sphere.
While such of those functions as
would fall within the domain of a
“public function” or “public duty” be
undisputedly open to challenge and
scrutiny under Article 226 of the
Civil Appeal No.10899 of 2013, etc. Page 17 of 23

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
Civil Appeal No.10899 of 2013, etc. Page 18 of 23

provisions, its violation by the
employer in contravention of law may
be interfered with by the Court. But
such interference will be on the
ground of breach of law and not on
the basis of interference in discharge
of public duty.
75.5. From the pleadings in the
original writ petition, it is apparent
that no element of any public law is
agitated or otherwise made out. In
other words, the action challenged
has no public element and writ of
mandamus cannot be issued as the
action was essentially of a private
character.”
(emphasis added)
20. The law laid down in this decision was followed by
this Court in the case of Army Welfare Education
8
. In that case, Court dealt with a school
Society this
taken over by the Army Welfare Education Society, which
required existing teachers to requalify under new
conditions. The High Court held that the school could not
impose service conditions to the teachers’ disadvantage.
In the said decision, this Court was concerned with a
case where a school was taken over by the petitioner - the
Army Welfare Education Society . A letter was sent to the
Civil Appeal No.10899 of 2013, etc. Page 19 of 23

teachers in the school run by St. Gabriel’s Academy
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 thereafter,
they will have to appear and qualify written test
conducted by the Army Welfare Education Society. The
teachers approached the High Court. Learned Single
Judge held that the school cannot impose the service
conditions on the teaching staff to their disadvantage.
The issue before this Court in the said case was whether
the Army Welfare Education Society was a "state" or
"authority" within the meaning of Article 12 of the
Constitution. This Court found that the Society was a
purely unaided private Society established for the
purpose of imparting education to the children of the
army personnel. This Court applied the law laid down in
9
the case of St.Mary’s Education Society & Ors. and
held that though the Society was imparting education,
which involves public duty, the relationship between the
respondents and the Army ‘Welfare Education Society
was that of an employee and private employer arising out
of a private contract. Therefore, a breach of contract does
not touch any public law element, and the school cannot
be said to be discharging any public duty in connection
with the employment of the teachers.
Civil Appeal No.10899 of 2013, etc. Page 20 of 23

21. We have perused the application made to CBSE for
nd
affiliation. The application was made on 22 August
1985. It was in the name of the Air Force Primary
School. Although it is stated that the school was fully
financed by the IAF, there is no evidence to show that the
school was actually financed by the IAF. The Education
Code, which applies to Air Force Schools, is not a
statutory code that has the force of law. It is issued under
the authority of the Chairman of the Board of Governors
of the IAF Educational and Cultural Society. It provides
that all Air Force Schools are administered under the
Society. As per the Memorandum of Association of the
Society, the members of the Society are IAF officers who
hold their posts ex-officio . The Command Schools
Managing Committees do not have control over the day-
to-day running of Air Force Schools. The day-to-day
control is with the School Managing Committee. Even if
the school building is constructed out of Public funds,
there is no record to show that it receives a grant from
Public Funds. There is nothing in the Education Code to
show that the IAF has control over the said school. The
audited accounts of the school for the period from 2019-
20 to 2023-24 indicate that no public funds or grants
were received by the school. Even if pay scales applicable
to all IAF schools are determined by the IAF, that by itself
Civil Appeal No.10899 of 2013, etc. Page 21 of 23

will not amount to pervasive control by the IAF over the
functioning of the schools.
It is not shown how the IAF headquarters has any
22.
control over the management of the said school.
Although some funds may have originated from the Army
Welfare Society, it cannot be said that the State or the IAF
has any control, let alone all-pervasive control, over the
school. Moreover, the said Society is not governed by any
statutory rules.
23. In the impugned judgment, the Division Bench
recorded the undisputed position that the appellants are
employees of the said school, which is not governed by
any statutory regulations. The Education Code, which
applies to the said school, does not have any statutory
sanction or force. A finding of fact was recorded that
there is no material to show that the Government or the
IAF has any control over the management of the school.
It is not possible for us to take a contrary view.
24. In the circumstances, we are unable to find any
fault with the view taken by the Division Bench of the
High Court. The relationship between the appellants and
the said school is in the realm of private contract.
Assuming that there was a breach of private contract, the
same does not involve any public law element.
Civil Appeal No.10899 of 2013, etc. Page 22 of 23

25. Therefore, there is no merit in the appeals, and the
same are dismissed. We, however, make it clear that other
remedies, if any, of the appellants are kept open.

.…………………………….J.
(Abhay S. Oka)
…………………………….J.
(Augustine George Masih)
New Delhi;
May 21, 2025.
Civil Appeal No.10899 of 2013, etc. Page 23 of 23

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10899 OF 2013
DILEEP KUMAR PANDEY …APPELLANT
VERSUS
UNION OF INDIA & ORS. …RESPONDENTS
R1: UNION OF INDIA
R2: CHAIRMAN, SCHOOL MANAGEMENT COMMITTEE AIR FORCE
SCHOOL
R3: EXECUTIVE DIRECTOR/ WING COMMANDER, AIR FORCE
SCHOOL
R4: SHIKSHAK KALYAN SAMITI …INTERVENOR
WITH
CIVIL APPEAL NO.11378 OF 2013
SANJAY KUMAR SHARMA …APPELLANT
VERSUS
CENTRAL BOARD OF SECONDARY EDUCATION & ORS.
…RESPONDENTS
R1: CENTRAL BOARD OF SECONDARY EDUCATION
R2: SCHOOL MANAGEMENT COMMITTEE
R3: OFFICER IN-CHARGE/EDUCATION OFFICER
R4: SQR. LDR. U. S. PABLA ENQUIRY OFFICER
R5: PRINCIPAL, AIR FORCE SCHOOL, BAMRAULI
R6: SMT. SHALINI KAUL
1 of 28

J U D G M E N T
AHSANUDDIN AMANULLAH, J.
I have had the benefit of perusing the erudite view in the
judgment penned by my senior, learned Brother Hon’ble Mr. Justice
Abhay S. Oka. With great reverence for his scholarly opinion, I am
unable to concur therewith, for reasons that follow.
2. When there are allegation(s) of wrong-doing alleged by the
appellants-teachers with regard to action taken against them by the
respondent-Air Force School, Bamrauli in the district of Allahabad
(hereinafter referred to as the ‘School’), the moot question which is
required to be answered by us is whether the School would be
amenable to writ jurisdiction under Article 226 of the Constitution of
India (hereinafter referred to as the ‘Constitution’)?
3. For convenience, Articles 12 and 226 of the Constitution are
reproduced hereinunder:

2 of 28

xxx
226. Power of High Courts to issue certain writs .
—(1) Notwithstanding anything in Article 32, every
High Court shall have power, throughout the
territories in relation to which it exercises jurisdiction,
to issue to any person or authority, including in
appropriate cases, any Government, within those
territories directions, orders or writs, including writs in
the nature of habeas corpus,
mandamus, prohibition, quo
warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III
and for any other purpose.
(2) The power conferred by clause (1) to issue
directions, orders or writs to any Government,
authority or person may also be exercised by any
High Court exercising jurisdiction in relation to the
territories within which the cause of action, wholly or
in part, arises for the exercise of such power,
notwithstanding that the seat of such Government or
authority or the residence of such person is not within
those territories.
(3) Where any party against whom an interim order,
whether by way of injunction or stay or in any other
manner, is made on, or in any proceedings relating
to, a petition under clause (1), without—
(a) furnishing to such party copies of such petition
and all documents in support of the plea for such
interim order; and
(b) giving such party an opportunity of being heard,
makes an application to the High Court for the
vacation of such order and furnishes a copy of such
application to the party in whose favour such order
has been made or the counsel of such party, the High
Court shall dispose of the application within a period
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of two weeks from the date on which it is received or
from the date on which the copy of such application
is so furnished, whichever is later, or where the High
Court is closed on the last day of that period, before
the expiry of the next day afterwards on which the
High Court is open; and if the application is not so
disposed of, the interim order shall, on the expiry of
that period, or, as the case may be, the expiry of the
said next day, stand vacated.
(4) The power conferred on a High Court by this
article shall not be in derogation of the power
conferred on the Supreme Court by clause (2) of
Article 32. ’
4. I do not propose to delve into the entire factual prism and
detailed submissions advanced by the respective learned senior
counsel and learned counsel for the parties as need therefor has
been obviated, having been noted by my esteemed senior colleague.
However, some basic but unique facts require to be stated.
5. The School was set up by the Indian Air Force (hereinafter
referred to as the ‘IAF’) as a welfare measure for the officers and
personnel of the IAF with regard to the education of their
children/wards. Such policy decision was taken at the highest
echelons of the IAF, which itself took up the basic work of setting-up
of the requisite infrastructure for the School, as also providing for a
mechanism to run the School, in future, both administratively and
financially. The system envisaged was that every school will have a
4 of 28

School Managing Committee (hereinafter referred to as the
‘Committee’) of its own, which would also comprise officers of the IAF
posted at the local level. Apropos funds, besides fee(s) charged from
students, which was different for different categories, some funds
would arrive by way of aid, either directly from the IAF unit or through
various welfare funds of the IAF, which are contributory funds by the
officers and personnel of the IAF. The School’s building is on IAF land
and has been built entirely by the funds of the IAF.
6. The next relevant factors pertinent for deciding the issue are
the nature of functions and duties discharged by the School and the
manner in which they are discharged.
7. It is not in dispute that the school imparts education to the
children and wards, both of IAF personnel and also partly for the non-
IAF persons. This assumes significance for the reason that imparting
education has been held to be a public function as it affects the
public at large. Thus, the School discharges a public function,
undoubtedly. Further, the administrative functioning of the School, as
mentioned above, is directly under the Committee consisting of IAF
personnel posted locally. This, in the view of this Court, indicates that,
ultimately, it is the IAF which is in control of the School’s
5 of 28

management and has the last word in the administration of the
school. This, but obviously and consequentially, would include
recruitment of teachers and other officers/employees of the schools
and extend to disciplinary control over the teachers/staff/employees,
including the right to disengage/terminate/dispense with their
services. Examined thus, there cannot be any dispute that the body
exercising such dominant control over the matters referred to supra ,
being fully in the hands of the Committee, which itself is made up of
serving locally-posted IAF personnel, leaves no scope of ambiguity
as to the clear fact that the IAF has full and all-pervasive control over
the management of the School, inclusive of disciplinary powers as
also the power to terminate employment, by whatever label styled.
8. In Pradeep Kumar Biswas v Indian Institute of Chemical
Biology , (2002) 5 SCC 111 , 7 learned Judges were re-considering
the decision rendered by 5 learned Judges in Sabhajit Tewary v
Union of India , (1975) 1 SCC 485 , wherein the Council of
Scientific and Industrial Research was held to not be ‘ State ’ under
Article 12 of the Constitution. Reversing Sabhajit Tewary ( supra ),
the majority in Pradeep Kumar Biswas ( supra ), speaking through
the learned Ruma Pal, J., held:
6 of 28

‘ 40.  The picture that ultimately emerges is that the
tests formulated in   Ajay Hasia  [Ajay Hasia v. Khalid
Mujib Sehravardi, (1981) 1 SCC 722: 1981 SCC
(L&S) 258] are not a rigid set of principles so that if a
body falls within any one of them it must, ex
hypothesi, be considered to be a State within the
meaning of Article 12. The question in each case
would be — whether in the light of the cumulative
facts as established, the body is financially,
functionally and administratively dominated by or
under the control of the Government. Such control
must be particular to the body in question and must
be pervasive. If this is found then the body is a State
within Article 12. On the other hand, when the control
is merely regulatory whether under statute or
otherwise, it would not serve to make the body a
State. ’
(emphasis supplied)
9. Additionally, all orders, be they of appointment, extension of
probation, fixation of pay, etcetera are passed under the authority of
the IAF officers. The undersigning of these day-to-day orders
compels us to hold that the control exercised by the IAF, and by
extension the Government of India, on the working of the School is
not merely regulatory in nature but deep and pervasive inasmuch as
it is not only concerned with supervision alone, but even involved in
the banal and mundane workings/proceedings of the School. This is
also apparent from the Notification issued by the Press Information
Bureau (Defence Wing) dated 02.03.2009 announcing the
appointment of the first Director General (Administration). Here, the
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responsibilities delineated for such newly-appointed Director General
also included ‘ looking after the Air Force Schools ’. There are multiple
levels of authorities from the IAF overlooking, supervising,
administering, and most importantly, controlling the overall working of
the School and all other such schools, which discharge a public
function i.e., imparting education. As rightly pointed out by the
learned senior counsel for the appellant, at the time of seeking
affiliation with the Central Board of Secondary Education, the
application dated 22.08.1985 filed by the Committee clearly states
1
that the School is ‘ fully financed by the Air Force ’.
10. In Civil Appeal No.10899 of 2013, learned senior counsel for
the appellant took a categoric stand that the School’s building(s)
were constructed through public funds under the authorization of the
Ministry of Defence and the pay-scales of the school staff were fixed
by the Air Force Headquarters which is the appropriate/competent
authority. The Committee has to conform to the pay-scales
recommended by the Directorate of Education, Air Force
Headquarters, IAF. It has also been contended that the Committee
has been constituted to run Air Force Schools in accordance with the
Education Code of Air Force Schools of 2005 (hereinafter referred to
1
P-11/Civil Appeal No.10899/2013.
8 of 28

as the ‘Code’) which is identical to the Education Code framed for
management of Kendriya Vidyalayas. The Code, brought out by the
IAF’s Directorate of Education, endeavours to lay down a common
and consolidated mechanism for the working of the school
administrations. The Code encompasses (a) Scheme of
Management, (b) Establishment and Recruitment, (c) Terms and
Conditions of service, (d) Discipline, (e) Students, (f) Admission, (g)
Code of conduct, (h) Accounting, and (i) General. It has also been
submitted that in case of a doubt/ambiguity of any clause/subject
contained in the Code, the interpretation of the Directorate of
Education will be final and binding. It was also pressed into service
that it is the Air Force Headquarters which has established the Indian
Air Force Education and Cultural Society (hereinafter referred to as
the ‘IAFE&CS’) to administer and manage the Air Force Schools set
up all over India. The Board of Governors of the IAFE&CS is the
apex body with an IAF officer in-charge of the administration as its
Chairman and it lays down the broad framework within which the
school functions. Mandatorily, approval of the Air Force Headquarters
is needed for establishment/upgradation/downgradation of any Air
Force School. It is also the duty of the Command Education Officer to
carry out inspection of all Air Force Schools and send a detailed
statement to the Directorate of Education for financial assistance
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from the Central Welfare Fund. It was further submitted that the Air
Force Order No.132 dated 11.12.1998 provides for annual grants by
the Air Headquarters to all Air Force Schools and under Air Force
Order No.9 dated 08.06.1985, the Committee is to make efforts to
procure grants from various sources and funds, including but not
limited to, the AFWWA Fund, SI Fund, IAF CWF, Command Welfare
Fund, State Governments etc.
11. It is also mandated that all the Air Force School buildings
should be constructed out of public funds only and the Ministry of
Defence authorizes the construction of the building only from public
funds on defence-owned lands. These schools are at liberty to accept
financial assistance and grants. The existing Air Force Schools are
allowed to continue with and avail of rent-free accommodation and
allied concessions.
12. In the aforesaid background, we find that for all practical
purposes, in every sphere of activity relating to the School, the
funding consists substantially of funds which are ultimately traceable
to the public exchequer. My learned senior colleague has referred to
a 2-Judge Bench decision in St. Mary’s Education Society v
Rajendra Prasad Bhargava , (2023) 4 SCC 498 , followed by 2
10 of 28

learned Judges in Army Welfare Education Society v Sunil Kumar
Sharma , 2024 SCC OnLine SC 1683 . Let us take a look at
Paragraphs 75.1 to 75.5 of St. Mary’s Education Society ( supra ):
‘ 75.1. An application under Article 226 of the
Constitution is maintainable against a person or a
body discharging public duties or public functions.
The public duty cast may be either statutory or
otherwise and where it is otherwise, the body or the
person must be shown to owe that duty or obligation
to the public involving the public law element.
Similarly, for ascertaining the discharge of public
function, it must be established that the body or the
person was seeking to achieve the same for the
collective benefit of the public or a section of it and
the authority to do so must be accepted by the public.
75.2. Even if it be assumed that an educational
institution is imparting public duty, the act complained
of must have a direct nexus with the discharge of
public duty. It is indisputably a public law action which
confers a right upon the aggrieved to invoke the
extraordinary writ jurisdiction under Article 226 for a
prerogative writ. Individual wrongs or breach of
mutual contracts without having any public element
as its integral part cannot be rectified through a writ
petition under Article 226. Wherever Courts have
intervened in their exercise of jurisdiction under
Article 226, either the service conditions were
regulated by the statutory provisions or the employer
had the status of “State” within the expansive
definition under Article 12 or it was found that the
action complained of has public law element.
75.3. It must be consequently held that while a body
may be discharging a public function or performing a
public duty and thus its actions becoming amenable
to judicial review by a constitutional court, its
employees would not have the right to invoke the
powers of the High Court conferred by Article 226 in
respect of matter relating to service where they are
not governed or controlled by the statutory
11 of 28

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 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. ’
(emphasis supplied)
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13. The Court in St. Mary’s Educational Society ( supra ) held
that 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 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.
Further, it has been held that 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 of the Constitution 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 of the Constitution.
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14. St. Mary’s Educational Society ( supra ) further holds that
even if it be perceived that imparting education by private unaided
schools is a public duty within the expanded expression of the term,
an employee/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 the person is employed
by the 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 as an inseparable part of the
obligation to impart education.
15. In the present cases, both appellants were teachers. The
teacher is the vital person who is responsible for actually imparting
education, which is a public duty, being performed for the
wards/children of the officers, staff and personnel of the IAF and of
persons who may not be associated with the IAF. The Committee,
which has administrative and disciplinary control over teachers
engaged in discharging the public duty of imparting education, cannot
be said to be a duty unconnected in the discharge of a public duty
cast upon it.
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16. This Court in Janet Jeyapaul v SRM University , (2015) 16
SCC 530 held:
‘ 30. This we say for the reasons that firstly,
Respondent 1 is engaged in imparting education in
higher studies to students at large. Secondly, it is
discharging “public function” by way of imparting
education. Thirdly, it is notified as a “Deemed
University” by the Central Government under Section
3 of the UGC Act. Fourthly, being a “Deemed
University”, all the provisions of the UGC Act are
made applicable to Respondent 1, which inter alia
provides for effective discharge of the public function,
namely, education for the benefit of the public. Fifthly,
once Respondent 1 is declared as “Deemed
University” whose all functions and activities are
governed by the UGC Act, alike other universities
then it is an “authority” within the meaning of Article
12 of the Constitution. Lastly, once it is held to be an
“authority” as provided in Article 12 then as a
necessary consequence, it becomes amenable to
writ jurisdiction of the High Court under Article 226 of
the Constitution. ’
(emphasis supplied)
17. At the cost of repetition, the School has been established
primarily to impart education which is a ‘public function’. This,
juxtaposed with the dominant and all-pervasive control exercised on
the School, through the Committee by serving officers of the IAF, is
enough to bring the Committee and the School within the
extraordinary and prerogative writ jurisdiction of the High Courts
under Article 226 of the Constitution. The decisions in Raj Soni v Air
15 of 28

Officer Incharge Administration , (1990) 3 SCC 261 and All India
Sainik Schools Employees’ Association v Defence Minister-cum-
Chairman Board of Governors, Sainik Schools Society, New
Delhi , (1989) Supp (1) SCC 205 , relied upon by the appellants, have
rightly been distinguished by esteemed brother Hon’ble Oka, J. The
decision in Ajay Hasia v Khalid Mujib Sehravardi , (1981) 1 SCC
722 need not detain us in view of Pradeep Kumar Biswas ( supra ).
Furthermore, as the ultimate ownership of the entire land is with the
2
IAF, the contention of Ms. Bhati, learned Additional Solicitor General
that because there is no direct funding or aid given by the
Government of India, or the Ministry of Defence, the decision of the
Committee would not be amenable to writ jurisdiction under Article
226 of the Constitution, cannot be accepted, primarily for the reason
that there is overwhelming material on record, of public funds being
utilized by the School/Committee, coupled with the fact that the
School is performing a public duty.
18. In Andi Mukta Sadguru Shree Muktajee Vandas Swami
Suvarna Jayanti Mahotsav Smarak Trust v V R Rudani , (1989) 2
SCC 691 , the question before the Court was whether a mandamus
can be issued at the instance of a teacher against a Trust which
2
Hereinafter abbreviated to ASG.
16 of 28

was running the educational institution. While upholding the
maintainability of the writ petition, the Court held thus:
‘ 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. 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 appellants 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.
226] 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
20.  The term “authority” used in Article 226, in the
context, must receive a liberal meaning unlike 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.
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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.
xxx
22.  Here again we may point out that mandamus
cannot be denied on the ground that the duty to be
enforced is not imposed by the statute. Commenting
on the development of this law, Professor de Smith
states: “To be enforceable by mandamus a public
duty does not necessarily have to be one imposed by
statute. It may be sufficient for the duty to have been
imposed by charter, common law, custom or even
contract.” [ Judicial Review of Administrative Action,
4th Edn., p. 540] We share this view. The judicial
control over the fast expanding maze of bodies
affecting the rights of the people should not be put
into watertight compartment. It should remain flexible
to meet the requirements of variable circumstances.
Mandamus is a very wide remedy which must be
easily available “to reach injustice wherever it is
found”. Technicalities should not come in the way of
granting that relief under Article 226. We, therefore,
reject the contention urged for the appellants on the
maintainability of the writ petition. ’
(emphasis supplied)
19. The public duty imparting of education has to be done through
teachers. Teachers form the most vital cog of the educational system
and act as the link between a school and the students. Any matter
18 of 28

affecting the service conditions, morale and discipline among the
teaching staff would have a direct bearing and nexus with the
imparting of education. As far as the facts stand, the grievances of
appellant-Sanjay Kumar Sharma regarding disciplinary action against
him by the Committee would be amenable to the writ jurisdiction of
the High Court under Article 226 of the Constitution. The concerned
parties shall, as agreed, remain bound by and continue to honour the
arrangement recorded in our Order dated 28.08.2024, whereunder a
lump-sum amount was to be paid to appellant-Sanjay Kumar Sharma
and appellant-Dileep Kumar Pandey was reinstated without back
wages. Irrespective of the fact that in the above view, no lis between
the appellants and respondents may actually exist, we have decided
the issue of law, as we have been informed that many cases,
especially in the High Court of Judicature at Allahabad are pending,
awaiting the instant decision.
20. It will not be out of context to refer to the Zee Telefilms
Limited v Union of India , (2005) 4 SCC 649 , where 5 learned
Judges stated that the Board of Control for Cricket in India (BCCI),
though not amenable to writ jurisdiction under Article 32 of the
Constitution, was amenable to writ jurisdiction by the High Court
under Article 226 of the Constitution, as the High Court under Article
19 of 28

226 of the Constitution has much wider scope compared to this Court
under Article 32 of the Constitution. The law was laid down by Hon.
Hegde, J., speaking for the majority, as under:
‘ 31.  Be that as it may, it cannot be denied that the
Board does discharge some duties like the selection
of an Indian cricket team, controlling the activities of
the players and others involved in the game of
cricket. These activities can be said to be akin to
public duties or State functions and if there is any
violation of any constitutional or statutory obligation
or rights of other citizens, the aggrieved party may
not have a relief by way of a petition under Article 32.
But that does not mean that the violator of such right
would go scot-free merely because it or he is not a
State. Under the Indian jurisprudence there is always
a just remedy for the violation of a right of a citizen.
Though the remedy under Article 32 is not available,
an aggrieved party can always seek a remedy under
the ordinary course of law or by way of a writ petition
under Article 226 of the Constitution, which is much
wider than Article 32.
xxx
33.  Thus, it is clear 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 under the Constitution, by
way of a writ petition under Article 226. Therefore,
merely because a non-governmental body exercises
some public duty, that by itself would not suffice to
make such body a State for the purpose of Article 12.
In the instant case the activities of the Board do not
come under the guidelines laid down by this Court
in Pradeep Kumar Biswas case [(2002) 5 SCC 111:
2002 SCC (L&S) 633] hence there is force in the
contention of Mr Venugopal that this petition under
Article 32 of the Constitution is not maintainable. ’
(emphasis supplied)
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21. When the plain language of Article 226 of the Constitution
indicates a wider coverage, this Court would not accord a restrictive
meaning thereto as Article 226(1) of the Constitution itself makes it
clear that notwithstanding anything contained in Article 32 of the
Constitution, every High Court shall have power throughout the
territories in relation to which it exercises jurisdiction to issue to any
person or authority including in appropriate cases, any Government
within those territories directions, orders or writs, including writs in the
nature of habeas corpus , mandamus , prohibition, quo warranto and
certiorari , or any of them for the enforcement of any of the rights
conferred by Part III and ‘ for any other purpose ’. Thus, we have no
hesitation to hold that the School/Committee is amenable to writ
jurisdiction under Article 226 of the Constitution. It is also of some
import to note that, at the time of recruitment of the teachers, the
officers of the IAF are also part of the body which decides such
recruitment, including interviews for the post of Principal, which
would, once again, denote the pervasive control of the IAF in the
running of the schools. As a matter of fact, the Court cannot shut its
eyes to the claim made by the appellant in Civil Appeal No.11378 of
2013 to the effect that all proceedings against him started when he
objected to a candidate who was junior to him being made the in-
21 of 28

charge Principal, the crucial aspect being that the said junior
happened to be the sister of the Air Vice Marshal concerned, under
whose jurisdiction the School was located. Of course, we may clarify
that we are not returning any finding on this point. But, the direct
influence of the officers of the IAF in the running of the schools under
his/her command, including where his/her subordinates are directly
responsible, would lead to the irresistible conclusion that the
Committee/School cannot be held to fall outside the purview of Article
226 of the Constitution.
22. Another issue the learned ASG flagged is with regard to funds
primarily used for running of the School being ‘ Non Public Funds ’. In
this context, it would be appropriate to reproduce the relevant extract
from the IAF Manual of Management and Accounting of Non-Public
Funds (IAP 3503 (COMPREHENSIVELY REVISED, 2016), produced
as part of the written submissions on behalf of the Respondents:
‘ 3. As fighting force it is important for the organization
to maintain high motivation, morale and provide good
quality of life for its Air warriors and their families.
Authorization for incurring expenditure for
Undertaking all welfare activities out of Public Funds
being limited, the purpose of creating Non Public
Funds, is to supplement the scope of Public Funds
and to cater for welfare needs of troops which cannot
be provided through Public Funds. The primary
purpose for creating these Funds is the welfare of
troops. The Govt of India has provided certain
22 of 28

privileges to these funds by allowing some special
provisions; Some of these are exemption of the
income of these funds from income Tax, allowing use
of certain Govt buildings for these ventures on
payment of rent/allied charges wherever applicable,
allowing the recovery of the dues of Non Public
Funds from salary of individuals, making donations to
certain NPFs tax free etc. ’
(emphasis supplied)
23. In view of the aforesaid, on a deeper probe, it appears that
‘ Non Public Funds ’ is a misnomer inasmuch as while it may not be
labelled as ‘ Public Funds ’ but the nature is public for the reason that it
includes direct funding from the Air Force Unit/Station and most
importantly, it is also supplemented by the Regimental Fund. Another
reason is that even the so-termed ‘ Non Public Funds ’ are used for
welfare measures for the IAF personnel such as establishment of
canteens etc. and are exempt from income tax and other statutory
taxes, meaning that the Government foregoes its share by way of
taxes on such funds. Arguendo , if the funding is not direct, the
indirect support of the Government of India/Ministry of Defence
through providing land, granting tax exemptions et al is clearly borne
out from the record.
23 of 28

24. At this juncture, we would like to refer the judgments cited by
the learned ASG – Union of India v Chotelal , (1999) 1 SCC 554 and
R R Pillai v Southern Air Command, Indian Air Force , (2009) 13
SCC 311 . In our considered view, these judgments are not applicable
and can be distinguished on facts. Chotelal ( supra ) dealt with the
issue as to whether dhobis appointed to wash the clothes of the
cadets at the National Defence Academy, Khadakwasla, who are
paid from a fund called the ‘Regimental Fund’ can be said to be
holders of civil posts so as to confer jurisdiction on the Central
Administrative Tribunal, whereas R R Pillai ( supra ) dealt with the
status of employees of an unit-run canteen in the armed forces.
Thus, both relied on cases wherein controversy was pertaining to the
status of the concerned employees, whereas herein the subject-
matter is completely different, relating to the amenability of the
School/Committee, while discharging a public function and
performing a public duty, namely of imparting education and
discharging public function, to writ jurisdiction under Article 226 of the
Constitution. Quite perceptibly, even the terms and conditions of
service and nature of duties considered in Chotelal ( supra ) and R R
Pillai ( supra ) were very different.
24 of 28

25. Hence, upon scrutiny of the facts and circumstances from
various angles, we have not the slightest doubt that the
Committee/School would come within the ambit of ‘ authority ’ as
employed in the said Article. Further, the Committee/School would
also be covered under ‘ other authorities ’ in the context of Article 12 of
the Constitution.
26. As far as the composition of the Board of Governors of the
IAFE&CS, as also the members of the Committee is concerned, the
clear majority thereof are IAF officers, holding their posts ex-officio . It
would suffice to say that by virtue of their posts in the IAF, they are
part of the Committee. Membership of the IAFE&CS is linked to
serving in the IAF. This reinforces the contention of the appellants
that the IAF is officially involved in running of the schools, through its
officers. Analogy can be drawn at this stage with similar autonomous
bodies of the Governments, both Central and of State, where the
core managing body of like institutions, including fully or partly funded
by public funds, consists of government officials. Such institutions are
distinct entities, autonomous and free to take their decisions, but the
persons taking those decisions, even on a daily basis are
government officials. Similarly, while the IAFE&CS, the supreme body
governing the schools consists of IAF personnel, it is actually the IAF
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itself which is in command. In other words, every government official
in acting as part of a core managing body referred to above as part of
his/her public duty continues to be a government official even if
taking decisions individually, as part of the core managing body, is
part thereof by reason of the factum of being a government official
and not for any other reason. Here comes into play the distinction
between a private individual acting totally in a private capacity, as
opposed to a government official, in the present case being IAF
personnel, in the view of this Court, are actually acting in their official
capacity and position, by the mere fact of them being the personnel
of the IAF. Thus, it cannot be said that the IAFE&CS or the
Committee functions de hors the trappings of any official control of
the IAF. As discussed in the preceding paragraphs, not just control,
but deep, pervasive and effective control on the School, through the
Committee, finally rests with the IAFE&CS.
27. As far as the Code which applies to the Air Force Schools not
being statutory in nature is concerned, the said factor alone cannot
have any determinative effect on the question of law before us.
Notably, the Chairman of the Board of Governors of the IAFE&CS is
a senior-ranking Air Marshal of the IAF. All the Air Force Schools
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register under aegis of the IAFE&CS and as per the Memorandum of
Association of the IAFE&CS, members thereof are IAF officers.
28. As far as the application made by the School dated
22.08.1985, in which it was stated that the school was fully financed
by the IAF, is concerned, in our view, there need not be any further
evidence as it is a statement by the School/its authorities themselves
before the CBSE and such documents are not denied before this
Court. Stepping further, the School/Committee are estopped from
contending to the contrary. The land on which the School building
stands belongs to and has been constructed utilising the funds of the
IAF. This is enough to establish the financial support enjoyed by the
School from the IAF. The corpus and assets of the IAF are traceable
to the Central Government, being public in nature.
29. We cannot be oblivious to or unmindful of the purpose behind
establishment of the schools – to take care of the need of the IAF
personnel who may be posted at far-away places not having
educational facilities as also taking into account safety and security.
We find that many such schools have been established within the
campus of the IAF bases/establishments itself. This, incrementally,
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would also exhibit that the School enjoys privileges and facilities on
account of its linkage to and control by the IAF.
30. Accordingly for the reasons aforesaid, it is held that the writ
petitions filed by the appellants were maintainable. The orders
impugned are set aside, clarifying the position of law. The High Court
of Judicature at Allahabad will proceed to decide the matters,
ostensibly held up due to the present cases, on merits, in expedition
having regard to the position of the Board.
31. The appeals stand allowed.
...………………..................…..J.
[AHSANUDDIN AMANULLAH]
NEW DELHI
MAY 21, 2025
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