Supreme Court of India
DILEEP KUMAR PANDEYversusUNION OF INDIA & ORS.
- Citation
- 2025 INSC 749
- Decided
- 21 May 2025
- Disposal
- Dismissed
- Bench
- ABHAY S OKA
Holding
The Air Force School, Bamrauli is not a ‘State’ or ‘authority’ within the meaning of Article 12, and therefore writ petitions under Article 226 are not maintainable.
Summary
The case concerned two teachers who challenged actions taken against them by the Air Force School, Bamrauli, alleging that the school was a "state or authority" under Article 12 of the Constitution and therefore subject to writ jurisdiction under Article 226. The majority held that the school, managed by the Indian Air Force Educational and Cultural Society, is a non‑public‑fund school whose finances and day‑to‑day administration are controlled by a School Managing Committee, not by the Government or the IAF, and thus is not a "State" within Article 12. Consequently, the writ petitions were not maintainable and the appeals were dismissed. The dissent argued that the school performs a public function of education and is under pervasive IAF control, making it amenable to writ jurisdiction. The Supreme Court affirmed the Division Bench of the Allahabad High Court that the school is not a State or authority for Article 12 purposes.
Issues considered
- Whether the Air Force School, Bamrauli is a ‘state or authority’ within the meaning of Article 12 of the Constitution of India.
- Whether the school is amenable to writ jurisdiction under Article 226 of the Constitution.
- Whether the financial and administrative control exercised by the Indian Air Force constitutes pervasive control sufficient to deem the school a State.
- Whether the relationship between the teachers and the school is a public‑law matter or a private contract.
Legislation cited
- Constitution of Indias. Article 12, s. Article 226
- Societies Registration Act, 1860
Headnote
Issue for Consideration Whether the Air Force School, Bamrauli, in District Allahabad, is a ‘state or authority’ within the meaning of Art.12 of the Constitution of India; whether it would be amenable to writ jurisdiction u/Art.226 of the Constitution – Arts.12, 226 – Writ petitions filed by the appellants-teachers alleging wrong-doings w.r.t actions taken against them by the respondent-Air Force School – Division Bench of the High Court held that the said School is not a ‘State’ within the meaning of Art.12
Subjects
Article 12Article 226Constitution of IndiaWrit jurisdictionState or authorityOther authoritiesAir Force SchoolsIndian Air ForceIndian Air Force Educational and Cultural SocietyMaintainability of writ petitionCBSEDisciplinary proceedingsEducation Code of Air Force Schools 2005Ministry of DefenceNon‑public fund schoolNo grant from public fundsControl over managementPrivate contractPublic law elementPublic dutyPublic functionPolicy decisionSchool Managing CommitteeCommand Schools Managing CommitteesImparting education public functionAdministrative functioningPublic fundsPublic exchequerIAF Manual of Management and Accounting of Non‑Public Funds (IAP 3503)
Judgment
[2025] 5 S.C.R. 1146 : 2025 INSC 749
Dileep Kumar Pandey
v.
Union of India & Ors.
(Civil Appeal No. 10899 of 2013)
21 May 2025
[Abhay S. Oka,* Augustine George Masih and
Ahsanuddin Amanullah,* JJ.]
Issue for Consideration
Whether the Air Force School, Bamrauli, in District Allahabad, is a
‘state or authority’ within the meaning of Art.12 of the Constitution
of India; whether it would be amenable to writ jurisdiction u/Art.226
of the Constitution of India.
Headnotes†
Constitution of India – Arts.12, 226 – Writ petitions filed by
the appellants-teachers alleging wrong-doings w.r.t actions
taken against them by the respondent-Air Force School –
Division Bench of the High Court held that the said School is
not a ‘State’ within the meaning of Art.12 thus, writ petitions
u/Art.226 were not maintainable – Challenge to:
Held: Per Abhay S. Oka, J. (for himself and Augustine George
Masih, J.) Writ petitions not maintainable – No material to show that
the Government or the IAF has any control over the management
of the School – No evidence to show that it is actually financed by
the IAF, as alleged or that it receives a grant from Public Funds –
The School is not governed by any statutory regulations – The
Education Code, which applies to the School, does not have any
statutory sanction or force – It is issued under the authority of
the Chairman of the Board of Governors of the IAF Educational
and Cultural Society – The Society is a non-profit making welfare
association and the School is a non-public fund School – The
finance is arranged from the fees collected from students and
the air force personnel make a contribution through their welfare
fund – There is no control by the Central Govt. or the Ministry of
Defence over the running or management of the school – The day-
to-day control is with the School Managing Committee – Further,
even if pay scales applicable to all IAF schools are determined by
the IAF, that by itself will not amount to pervasive control by the
* Author
[2025] 5 S.C.R. 1147
Dileep Kumar Pandey v. Union of India & Ors.
IAF over the functioning of the schools – Relationship between the
appellants and the said school is in the realm of private contract
not involving any public law element – View taken by the Division
Bench that the School/Society is not a ‘State’ within the meaning of
Art.12 and thus, writ petition u/Art.226 was not maintainable, upheld
[Paras 23, 21, 24] – Per Ahsanuddin Amanulla, J. (Dissent) Writ
petitions are maintainable – The School discharges a public function
of imparting education – IAF has full and all-pervasive control over
the management of the School, inclusive of disciplinary powers as
also the power to terminate employment – 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 – In
every sphere of activity relating to the School, the funding consists
substantially of funds traceable to the public exchequer – The fact
that the land on which the School building stands belongs to and
was constructed with the funds of the IAF establishes the financial
support enjoyed by the School from the IAF – The Committee/
School would come within the ambit of ‘authority’ and also under
‘other authorities’ as employed in the Art.12 and amenable to writ
jurisdiction u/Art.226 of the Constitution – Impugned orders set
aside. [Paras 7, 9, 12, 25, 28, 30]
Case Law Cited
In the judgment of Abhay S. Oka, J. (for himself and Augustine
George Masih, J.)
Raj Soni v. Air Officer Incharge Administration & Anr. [1990] 2
SCR 412 : (1990) 3 SCC 261; All India Sainik Schools Employees’
Association v. Defence Minister-cum-Chairman Board of Governors,
Sainik Schools Society, New Delhi & Ors. [1988] Supp. 3 SCR
398 : (1989) Supp. 1 SCC 205 – distinguished.
St. Mary’s Education Society & Anr. v. Rajendra Prasad Bhargava
& Ors. [2022] 8 SCR 301 : (2023) 4 SCC 498; Army Welfare
Education Society, New Delhi v. Sunil Kumar Sharma & Ors. Etc.,
[2024] 7 SCR 2176 : 2024 SCC Online SC 1683 – relied on.
Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna
Jayanti Mahotsav Smarak Trust & Ors. v. V.R. Rudani & Ors. [1989]
2 SCR 697 : (1989) 2 SCC 691; Pradeep Kumar Biswas v. Indian
Institute of Chemical Biology & Ors. [2002] 3 SCR 100 : (2002)
5 SCC 111; Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors.
[1981] 2 SCR 79 : (1981) 1 SCC 722 – referred to.
1148 [2025] 5 S.C.R.
Supreme Court Reports
In the judgment of Ahsanuddin Amanulla, J. (Dissent)
Union of India & Anr. v. Chotelal & Ors. [1998] Supp. 3 SCR 449 :
(1999) 1 SCC 554; R.R. Pillai (Dead) through LRs. v. Commanding
Officer, Headquarters Southern Air Command (U) and Ors. [2009]
7 SCR 118 : (2009) 13 SCC 311; Raj Soni v. Air Officer Incharge
Administration & Anr. [1990] 2 SCR 412 : (1990) 3 SCC 261; All
India Sainik Schools Employees’ Association v. Defence Minister-
cum-Chairman Board of Governors, Sainik Schools Society, New
Delhi & Ors. [1988] SCR Supp. 3 398 : (1989) Supp. 1 SCC
205 – distinguished.
Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna
Jayanti Mahotsav Smarak Trust & Ors. v. V.R. Rudani & Ors. [1989]
2 SCR 697 : (1989) 2 SCC 691; Pradeep Kumar Biswas v. Indian
Institute of Chemical Biology & Ors. [2002] 3 SCR 100 : (2002)
5 SCC 111; Army Welfare Education Society, New Delhi v. Sunil
Kumar Sharma & Ors. Etc., [2024] 7 SCR 2176 : 2024 SCC Online
SC 1683; St.Mary’s Education Society & Anr. v. Rajendra Prasad
Bhargava & Ors. [2022] 8 SCR 301 : (2023) 4 SCC 498; Sabhajit
Tewary v Union of India [1975] 3 SCR 616 : (1975) 1 SCC 485;
Janet Jeyapaul v. SRM University [2015] 10 SCR 1049 : (2015)
16 SCC 530; Zee Telefilms Limited v Union of India [2005] 1 SCR
913 : (2005) 4 SCC 649 – referred to.
List of Acts
Constitution of India; Societies Registration Act, 1860.
List of Keywords
Article 12; Article 226; Constitution of India; Writ jurisdiction; ‘State
or authority’; ‘Other authorities’; Air Force Schools; Indian Air Force
(IAF); Indian Air Force Educational and Cultural Society (IAFE&CS);
Maintainability of writ petition; Central Board of Secondary
Education (CBSE); Disciplinary proceedings; Education Code of
Air Force Schools of 2005; Ministry of Defence; Non-public fund
school; No grant from Public Funds; Control over the management;
Realm of private contract; Public law element; Public duty; Public
function; Policy decision; School Managing Committee; Command
Schools Managing Committees; Imparting education a public
function; Administrative functioning; Public funds; Public exchequer;
IAF Manual of Management and Accounting of Non-Public Funds
(IAP 3503 (COMPREHENSIVELY REVISED, 2016).
[2025] 5 S.C.R. 1149
Dileep Kumar Pandey v. Union of India & Ors.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10899
of 2013
From the Judgment and Order dated 12.07.2010 of the High Court
of Judicature at Allahabad in SA No. 1074 of 2010
With
Civil Appeal No. 11378 of 2013
Appearances for Parties
Advs. for the Appellant:
Sanjay R Hegde, Sr. Adv., Anand Singh, S. Santanam Swaminadhan,
Ms. Abhilasha Shrawat, Kartik Malhotra, Darsh Bansal, Koustubh
Abhinav Desai, Mrs. Aarthi Rajan.
Advs. for the Respondents:
Mrs. Aishwarya Bhati, A.S.G., Anant Vijay Palli, Sr. Adv.,
Ms. Shreya Jain, Ms. Manisha Chava, Ms. Ameya Vikramathanvi,
Mukesh Kumar Maroria, Ankur Talwar, Rajat Nair, Kanu Agarwal,
Ms. Sairica S Raju, Ashutosh Ghade, Shreeyash U Lalit, Anupam
Raina, Nikhil Palli, Deepak Goel, Ms. Alka Goyal, Mrs. Urvashi
Sharma, Mrs. Archana Preeti Gupta, Ms. Pankhuri Shrivastava,
Ms. Neelam Sharma, Alekshendra Sharma.
Advs. for the Intervenors:
Sanjay R Hegde, Sr. Adv., Anand Singh, S. Santanam Swaminadhan,
Ms. Abhilasha Shrawat, Kartik Malhotra, Darsh Bansal, Koustubh
Abhinav Desai, Mrs. Aarthi Rajan.
Judgment / Order of the Supreme Court
Judgment
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.
1150 [2025] 5 S.C.R.
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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 Educational and Cultural Society (for short, ‘the
Society’) was registered under the Societies Registration Act, 1860.
It was registered on 10th 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 the officers of the IAF, on 1st
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 was
extended from time to time. On 28th 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 contractual basis on a fixed salary from 1st July 2007 to May 2008
or to remain employed under the existing arrangement under which
his service would come to an end on 3rd 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
confirmed teacher in the said school. The writ petition was allowed by
order dated 13th 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 dated 12th 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.
[2025] 5 S.C.R. 1151
Dileep Kumar Pandey v. Union of India & Ors.
FACTS IN CIVIL APPEAL NO.11378 OF 2013
4. The appellant Sanjay Kumar Sharma was appointed as a post-
graduate teacher (Commerce) on 19th June 1993 and was later on
confirmed by the Officer-in-Charge of the said school. The Officer-
in-Charge was an officer of the IAF. On 3rd March 2003, he was
appointed as the officiating Principal of the said school by Wing
Commander Ajay Kumar, Officer-in-Charge. According to the case of
the appellant, the 6th respondent, Smt. Shalini Kaul has started acting
as the principal without taking over charge of the post. Disciplinary
proceedings were initiated against him by the 6th respondent. Later
on, at the instigation of the 6th respondent, girl students filed a
complaint against the appellant. On the basis of various allegations,
a show cause notice dated 19th December 2005 was issued to the
appellant. On 23rd 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 appellant
sought to challenge the appointment of the 6th respondent as the
principal. Writ petition No.19915 of 2006 was filed by the appellant
for challenging the charge sheet dated 23rd February 2006. By the
order dated 5th 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 appellant for
challenging the judgment dated 5th July 2006 of the learned Single
Judge. By order dated 11th September 2006, the order of remand
was passed by the Division Bench of the High Court to the Single
Judge. Learned Single Judge by his order dated 16th 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 judgment and order dated 16th September 2010
in Writ Petition No.19915 of 2006. By the impugned judgment and
order dated 2nd 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
1152 [2025] 5 S.C.R.
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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 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”).
7. Inviting our attention to the findings recorded by the 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
regimental funds and has received grant-in-aid. He pointed out that
Regimental Funds belong to the IAF.
8. Learned senior counsel has relied upon the following decisions of
this Court: -
(i) Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna
Jayanti Mahotsav Smarak Trust & Ors. v. V.R. Rudani & Ors.1
1 (1989) 2 SCC 691
[2025] 5 S.C.R. 1153
Dileep Kumar Pandey v. Union of India & Ors.
(ii) Pradeep Kumar Biswas v. Indian Institute of Chemical
Biology & Ors.2
(iii) Raj Soni v. Air Officer Incharge Administration & Anr.3
(iv) All India Sainik Schools Employees’ Association v. Defence
Minister-cum-Chairman Board of Governors, Sainik Schools
Society, New Delhi & Ors.4 and
(v) Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors.5
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
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 Union of India &
Anr. v. Chotelal & Ors.6. She submitted that the said decision is
2 (2002) 5 SCC 111
3 (1990) 3 SCC 261
4 (1989) Supp. 1 SCC 205
5 (1981) 1 SCC 722
6 (1999) 1 SCC 554
1154 [2025] 5 S.C.R.
Supreme Court Reports
squarely applicable to 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 Command
(U) and Ors.7.
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, New Delhi v. Sunil Kumar Sharma
& Ors. etc.8 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 Bhargava & Ors.9.
12. By way of rejoinder, learned counsel appearing for the appellants
submitted that the cases of Army Welfare Education Society8 and
St.Mary’s Education Society & Ors.9 stand on a different footing.
He tried to distinguish the decisions in the cases of Army Welfare
Education Society8 and St.Mary’s Education Society & Ors.9 and
submitted that the said decisions will not apply.
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
7 (2009) 13 SCC 311
8 2024 SCC Online SC 1683
9 (2023) 4 SCC 498
[2025] 5 S.C.R. 1155
Dileep Kumar Pandey v. Union of India & Ors.
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 “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.
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 Smarak Trust1 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
1156 [2025] 5 S.C.R.
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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.
.. .. .. .. .. .
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. 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
[2025] 5 S.C.R. 1157
Dileep Kumar Pandey v. Union of India & Ors.
is imposed, if a positive obligation exists mandamus
cannot be denied.
(emphasis added)
16. In the case of Pradeep Kumar Biswas2, this Court dealt with the
aspect of control over the institution. This Court relied upon the
decision in the case of Ajay Hasia5. 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 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 added)
17. In the case of All India Sainik Schools Employees Association4,
as a matter of fact, it was 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.
18. In the case of Raj Soni3, this Court, as can be seen 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 case of St.Mary’s
Education Society9. 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
Trust1 of this Court. However, this Court has discussed all relevant
1158 [2025] 5 S.C.R.
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principles. The principles laid down in the said decision in the case
of St.Mary’s Education Society & Ors. are in paragraphs 75.1 to
75.5, which 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 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
[2025] 5 S.C.R. 1159
Dileep Kumar Pandey v. Union of India & Ors.
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
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)
1160 [2025] 5 S.C.R.
Supreme Court Reports
20. The law laid down in this decision was followed by this Court in
the case of Army Welfare Education Society8. In that case, this
Court dealt with a school 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 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 the case of
St.Mary’s Education Society & Ors.9 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.
21. We have perused the application made to CBSE for affiliation. The
application was made on 22nd 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
[2025] 5 S.C.R. 1161
Dileep Kumar Pandey v. Union of India & Ors.
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 will not amount to pervasive control by the IAF
over the functioning of the schools.
22. It is not shown how the IAF headquarters has any 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.
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.
1162 [2025] 5 S.C.R.
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Judgment
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:
‘12. Definition.—In this part, unless the context otherwise
requires, “the State” includes the Government and
Parliament of India and the Government and the Legislature
of each of the States and all local or other authorities
within the territory of India or under the control of the
Government of India.
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
[2025] 5 S.C.R. 1163
Dileep Kumar Pandey v. Union of India & Ors.
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 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
1164 [2025] 5 S.C.R.
Supreme Court Reports
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 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 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
[2025] 5 S.C.R. 1165
Dileep Kumar Pandey v. Union of India & Ors.
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:
‘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 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
1166 [2025] 5 S.C.R.
Supreme Court Reports
of Secondary Education, the application dated 22.08.1985 filed by
the Committee clearly states that the School is ‘fully financed by
the Air Force’.1
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 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 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
1 P-11/Civil Appeal No.10899/2013.
[2025] 5 S.C.R. 1167
Dileep Kumar Pandey v. Union of India & Ors.
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 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
1168 [2025] 5 S.C.R.
Supreme Court Reports
element as its integral part cannot be rectified through
a writ petition under Article 226. Wherever Courts have
intervened in their exercise of jurisdiction under Article
226, either the service conditions were regulated by the
statutory provisions or the employer had the status of
“State” within the expansive definition under Article 12
or it was found that the action complained of has public
law element.
75.3. It must be consequently held that while a body may
be discharging a public function or performing a public
duty and thus its actions becoming amenable to judicial
review by a constitutional court, its employees would not
have the right to invoke the powers of the High Court
conferred by Article 226 in respect of matter relating to
service where they are not governed or controlled by the
statutory provisions. An educational institution may perform
myriad functions touching various facets of public life and
in the societal sphere. While such of those functions as
would fall within the domain of a “public function” or “public
duty” be undisputedly open to challenge and scrutiny under
Article 226 of the Constitution, the actions or decisions
taken solely within the confines of an ordinary contract of
service, having no statutory force or backing, cannot be
recognised as being amenable to challenge under Article
226 of the Constitution. In the absence of the service
conditions being 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
[2025] 5 S.C.R. 1169
Dileep Kumar Pandey v. Union of India & Ors.
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)
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.
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
1170 [2025] 5 S.C.R.
Supreme Court Reports
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.
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
[2025] 5 S.C.R. 1171
Dileep Kumar Pandey v. Union of India & Ors.
the Constitution. The decisions in Raj Soni v Air 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 IAF, the
contention of Ms. Bhati, learned Additional Solicitor General2 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 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
2 Hereinafter abbreviated to ASG.
1172 [2025] 5 S.C.R.
Supreme Court Reports
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.
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
[2025] 5 S.C.R. 1173
Dileep Kumar Pandey v. Union of India & Ors.
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 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 226 of the Constitution
has much wider scope compared to this Court under Article 32 of the
1174 [2025] 5 S.C.R.
Supreme Court Reports
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)
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,
[2025] 5 S.C.R. 1175
Dileep Kumar Pandey v. Union of India & Ors.
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-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
1176 [2025] 5 S.C.R.
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for creating these Funds is the welfare of troops. The Govt
of India has provided certain 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.
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
[2025] 5 S.C.R. 1177
Dileep Kumar Pandey v. Union of India & Ors.
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.
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 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.
1178 [2025] 5 S.C.R.
Supreme Court Reports
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 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,
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.
Result of the case: Appeals dismissed.
†
Headnotes prepared by: Divya Pandey
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