IN THE GAUHATI HIGH COURT W.P(C) No.140 (SH) of 2010 1. Shri ...

44. IsraqueS/O Md Uzahat Husen45. Shri Sukhdeo RayS/O Late Sar Jug Ray46. Shri Dinesh Prasad SinghS/O Late Sitaram Ray47. Shri Ram Babu RayS/O Rambilash Ray48. Shri Lal SinghS/O Late Perbey Thapa49. Shri Kumar GurungS/O Late Madhorraja Gurung50. Ram B ThapaS/O Phul Prasad Thapa51. Shri JumratiS/O Md.Habi52. JamaluddinS/O Md.Sahabudin53. Shri Mangal MurmuS/O Late Shom Murmu54. Shri Haribansh RayS/O Bake Ray55. Shri Om Prakash BalmikiS/O Late Munchi Balmiki56. Shri Bharat Prasad YadavS/O Late B.Yadav57. Shri Lil B.GurungS/O Peny B.Gurung58. Abdullah KhandakarS/O Late AkhiluddinW.P(C) No.140 (SH) of 2010 Page 4 of 19

59. Shri Shyam Babu RayS/O Ram Bilash Ray60. Shri Shiv HasdaS/O Late Bashit Hasda61. Shri Pancham BaithaS/O Ram Sunder Baitha62. Shri Ashik RayS/O Harekhan Ray63. Shri Yam Prasad AriyalS/O Dilli Ram Aryal64. Shri Parimal PaulS/O Late D.C.Paul65. Shri Ramesh GurungS/O Dirgaman Gurung66. Shri Ranjan BorahS/O Late Mema Kant Borah67. Shri Motiul Islam BorbhuiyanS/O late Md.Arzumia68. Shri Satur MurmuS/O Mangal Murmu69. Shri Prakash PrasadS/O Late Dib Run70. Shri Dominik HasdaS/O Charan Hasda71. Shri Baban BaskiS/O Late Thakur Baskey72. Shri Soban HembremS/O Late Lakhi Ram Hembrem73. Shri Suresh BoroS/O Late Mahendra BoroW.P(C) No.140 (SH) of 2010 Page 5 of 19

74. Shri Bhurelal BalmikiS/O Late Muthu Balmiki75. Shri Sudhir RoyS/O Late Naba Ram Roy76. Shri Birendra BalmikiS/O Nolurcuan Balmiki77. Shri Gopali BalmikiS/O Late Yadram Balmiki78. Shri Subash PrasadS/O Late Dilip Prasad Tamta79. Shri Shatrudhan SinghS/O Umesh Prasad Singh80. Shri K.R.DavidS/O K.R. Malungzing81. Shri Sher B.ThapaS/O Late Tara B.Thapa82. Shri Mon B ThapaS/O Late Kharka B.Thapa83. Shri Mahendra BaithaS/O Rajendra Baitha84. Shri Biplab SilS/O Late Dhirendra Sil85. Shri Baldev SinghS/O Amar Singh86. Shri Hemant K.SinghS/O Upendra Prasad Singh87. Shri Bhim P.SubediS/O Manikantha Subedi88. Shri Sonowar HusenS/O Md.Sanichi Mula HusenW.P(C) No.140 (SH) of 2010 Page 6 of 19

89. Shri Manindra SharmaS/O Nabakushar Sharma…………..PETITIONERSThe petitioner Nos.1 to 22 are teaching employees andNos.23 to 89 are non-teaching employees of the AssamRifles Public School, Laitkor, Shillong-10, Meghalaya.-VERSUS-1. Union of India,represented by the Secretary,Government of India,Ministry of Home Affairs, New Delhi.2. The Chairman,Governing Body Assam Rifles Public School,Laitkor, Shillong-10,Meghalaya.3. The Director General, Assam Rifles,Laitkor, Shillong, Meghalaya.4. Assam Rifles Public School,Through the Principal & Secretaryof the School, Laitkor, Shillong-10,Meghalaya.B E F O R EHON’BLE MRS JUSTICE ANIMA HAZARIKA…………RESPONDENTSAdvocates for the petitioners : Dr. JL SarkarMr. SN Tamuli.Advocates for the respondents : Mr. SC Shyam,Central Govt. CounselDate of hearing : 06.06.2011Date of delivering judgment : 12.8.2011.W.P(C) No.140 (SH) of 2010 Page 7 of 19

JUDGMENT AND ORDER1. Heard Dr. JL Sarkar, learned counsel assisted by Mr. SN Tamuli,learned counsel appearing for the petitioners. Also heard Mr. SCShyam, learned Central Government Counsel („CGC‟ for short)appearing on behalf of the respondents.2. The petitioners, 89 in number, are employees (teaching and nonteaching)of Assam Rifles Public School („ARPS‟ for short), Laitkar,Shillong. They have moved this Court by filing the instant writ petitionwith a prayer for issuing writ in the nature of mandamus and/orcertiorari or any other appropriate writ or order or direction to therespondents to implement the recommendations made by the 6 thCentral Pay Commission („CPC‟ for short) in respect ofPay andAllowances w.e.f. 01.01.2006 in ARPS and to pay the emoluments tothe petitioners, accordingly, along with increased Dearness Allowancefrom July, 2009 in terms of the recommendations of 6 th CPC, paymentof which have been withheld after June 2009 with arrears of pay andallowances w.e.f. 01.01.2006 and fixation of pay w.e.f. 01.04.2008with arrears and grant other service benefits including retirementbenefit at par with civilian employees of Government of India andemployees of Kendriya Vidyalaya Sangathan („KVS‟ for short) as well asJawahar Navodaya Vidyalaya („JNV‟ for short).3. The petitioners pleaded case is that ARPS was established in theyear 1980 and is affiliated to the Central Board of Secondary EducationW.P(C) No.140 (SH) of 2010 Page 8 of 19

(„CBSE‟ for short). Assam Rifles has pervasive financial andadministrative control over ARPS as the main source of funding theinstitution, land, building, salaries of employees is made from AssamRifles through grants, subsidy, etc. It has been stated by thepetitioners that ARPS is governed by “Assam Rifles Public School Rules”and due to pervasive financial and administrative control of AssamRifles, the institution, i.e. ARPS is an authority within the meaning ofArticle 12 of the Constitution of India, catering to the needs of publicinterest of education.4. Dr. Sarkar, learned counsel appearing for the petitioners hassubmitted that pay scales of teaching and non-teaching staffs of theARPS has been at par with the scales of pay of the similarly situatedemployees of the Central Government Schools as per recommendationof the CPC and accordingly, by office order dated 15.7.1998 the payscale at par with Central Govt. Scale (5th PC) has been given effect toand they are getting the same pay scale at par with other CentralGovt. Employees, KVS as well as JNV. The governing body, managingcommittee of ARPS have always been just and fair and have treatedthe employees of the ARPS at par with other Central Govt. Employeesand pay and allowances are being paid as per CPC recommendation.The same will also be evident from the open advertisement whilerecruiting the employees in the year 2007, when advertisement wasmade for the Post Graduate Teacher („PGT‟ for short) and HostelSuperintendent with closing date of application as 15th May, 2007W.P(C) No.140 (SH) of 2010 Page 9 of 19

wherein scale of pay was shown as per 5th CPC, the 6th CPC scalewere at that time not implemented. The 6th CPC scale has been giveneffect to by the Government of India later w.e.f. 1.1.2006retrospectively with arrears. The post of Principal of ARPS is also filledup by open advertisement in 2001 allowing the 5th CPC scale. Thelearned counsel has further submitted that the Central Govt. Civilianemployees of the KVS and JNV have been receiving pay scale andallowances as per 6th CPC w.e.f. 1.1.2006. But, the pay scale under6th CPC has been granted to the petitioners w.e.f. 1.4.2008 whereasthe Central Govt. has already accepted the recommendation of 6thCPC for implementation and has implemented the same for allconcerned. Therefore, there is no reason as to why the petitioners arebeing denied the same. The dearness allowances (DA) has been paid tothe petitioners at par with Central Govt. Civilians up to June, 2009 butthereafter, the same has been kept in abeyance and the petitionersare being given less DA due to non-implementation of the same as perCentral Govt. announcement from time to time. Thus, the petitionershave submitted a representation before the authority requestingtherein to allow the pay and allowances and other service benefits asper recommendation of 6th pay commission on the ground thatsimilarly situated employees under Govt. of India and KVS as well asJNV are getting the pay and allowance as recommended by the 6th paycommission. However, no order being passed and/or no action beingtaken on the representation so submitted, the petitioners haveapproached this Court with the aforesaid prayer. It has further beenW.P(C) No.140 (SH) of 2010 Page 10 of 19

submitted that the petitioners are entitled for the same under rulesand bye-laws.5. Dr. Sarkar, learned counsel for the petitioners while supportingthe claim of the petitioners has also taken me through variousdocuments annexed to the writ petition as well as to the affidavit-inreplyfiled by the petitioners. Drawing my attention to the Minutes ofthe Managing Committee Meeting held on June 18, 1991 videAnnexure-B to the writ petition, it has been strenuously urged by thelearned counsel for the petitioners that the employees have beenextended all the service benefits in terms of the recommendationsmade by the CPC from time to time. Further, drawing my attention tothe certificatevide Annexures-D and E respectively to the writpetition, it has been urged that the petitioners, for all practicalpurposes, are employee of Assam Rifles and therefore, they areentitled to all the benefits in respect of their pay and allowances asper recommendations made by the 6 th CPC.6. A common affidavit-in-opposition has been filed by therespondents through the Principal, ARPS, contending therein that thewrit petition is not maintainable in law, in view of the fact that ARPSis a private institution, registered under the Societies Registration Act,1860, established with aim and objectives, inter alia, to promoteeducation amongst the children of Assam Rifles officers, employeesand public. According to the respondents the management of theW.P(C) No.140 (SH) of 2010 Page 11 of 19

school is fully under the control of the Managing Committee which isconstituted in accordance with the provisions of the Article ofAssociation of the society. It has further been contended that neitherthe Ministry of Home Affairs of the Union of India nor the DirectorGeneral of Assam Rifles have any administrative or financial controlover the management of the school, more so, the financialrequirement of the school is met from the tuition fee and other feescollected from the students and therefore, the respondent school isnot amenable to the writ jurisdiction of this Court under Article 226 ofthe Constitution of India. The writ petition is, therefore, liable to bedismissed being not maintainable.7. Mr. Shyam, learned CGC upon relying the affidavit-in-oppositionhas further contended that the school is under the full financialcontrol, management and administrativecontrol of the ManagingCommittee consisting of seniorofficers of Assam Rifles in theirpersonal capacity and State Government Officers, the guardianrepresentatives and the representatives chosen from the members ofthe teaching staff and there is no financial and administrative controlby the Union of India or any other authorities as envisaged underArticle 12 of the Constitution of India and is, therefore, notamenable to the writ jurisdiction. Mr. Shyam has placed reliance uponthe case of SK Banerjee –Vs- Union of India & Ors. reported in 1997(1) GLT 451, wherein this Court has held that ARPS does not comewithin the meaning of Article 12 of the Constitution of India andW.P(C) No.140 (SH) of 2010 Page 12 of 19

submits that the said decision still holds the field in absence ofchallenge of the same before the higher court.8. Since a preliminary objection in respect of maintainability of thewrit petition has been raised by the respondents, it hasbecomeexpedient for this Court to arrive at a conclusion as to whether ARPSis a state within the meaning of Article 12 of the Constitution of India?The question of entering into merit in respect of petitioners‟ prayerfor issuance of writ in the nature of mandamus for extending thebenefits as prayed for will arise only in the event of answering thequestion of maintainability of the writ petition in the affirmative.9. With regard to the preliminary objection raised by therespondents on the question of maintainability of the writ petition,learned counsel for the petitioners submits that ARPS is receivingmonetary assistance in the form of subsidy, budget deficit on recurringaccount, capital account, building account, for purchasing generatorset,etc. from the Head Quarter, Director General, Assam Rifles(„DGAR‟ for short). In support of his contention, the learned counselfor the petitioners has taken me through the minutes of the GoverningBody meeting held on 25th March, 2002 (Annexure-Q to the rejoinder)In paragraph 8 of the said minutes it has been shown as to howmonetary assistance has been received from HQ, DGAR by themanagement of the school. It is also argued on behalf of theW.P(C) No.140 (SH) of 2010 Page 13 of 19

petitioners that ARPS is affiliated to CBSE and this fact by itself is aproof that ARPS is amenable to writ jurisdiction of this court.10. I have heard the learned counsel appearing for the parties atlength on the question of maintainability of the petition. I have alsoperused the documents which have been strongly relied upon by thelearned counsel appearing for the parties on the question ofmaintainability of the writ petition.11. From the points of arguments advanced regarding question ofmaintainability of the writ petition, it would be necessary to answerfirst as to whether a writ is maintainable against the ARPS andwhether it falls within the categories of other authorities under Article12 of the Constitution of India.12. It is not in dispute that ARPS is discharging a solemn duty byimparting education to the children. However, although the learnedcounsel for the petitioners has drawn my attention to variousdocuments annexed to the writ petition as well as affidavit-in-replyfiled on behalf of the petitioners, none of those documents indicatethat ARPS is getting any financial assistance on regular basis from theGovernment of India or HQ, DGAR. From some of those documents, itof course appears to me that ARPS has been extended occasionalfinancial assistance from time to time by HQ, DGAR only to meetcertain expenditures in running ARPS; but for that reason only ARPSW.P(C) No.140 (SH) of 2010 Page 14 of 19

cannot be termed as „State‟ within the meaning of Article 12 of theConstitution of India, more so, when the petitioners are paid theirsalaries by the management of ARPS from the tuition fee and other feecollected from the students of the school, and not by the CentralGovernment or State Government. Apart from that, on perusal of therelevant rules, namely, Assam Rifles Public School Rules which governsthe management and functioning of ARPS it becomes crystal clear thatARPS is a private institution for all practical purposes and registeredunder the Societies Registration Act, 1860. From the powers andfunctions of the Governing Body of ARPS as stipulated under Rule 2.8of the said Rules, one can arrive at the safe conclusion that ARPS is aprivate institution, more so, the management of the school is fullyunder the control of the Managing committee which is constituted inaccordance with the provisions of the Article of Association of thesociety. Neither the Home Ministry, Union of India nor the DirectorGeneral of Assam Rifles has had any administrative or financial controlover the management of the school. The Governing Body of the Schoolcomprised of the Governor of Assam as Patron, Director General ofAssam Rifles as Chairman, Deputy Director General of Assam Rifles asVice Chairman, Secretary, Department of Education, Government ofMeghalaya- Member, all Deputy Inspector Generals of Ranges -Member, the Principal, Assam Rifles Public School- Secretary. TheChairman may nominate any other members. The tenure normallyshould be two years which could be extended at the discretion of theGoverning Body.W.P(C) No.140 (SH) of 2010 Page 15 of 19

The school also has a Managing committee to control andoversee the matters concerning day to day management of the school.The Managing committee consists of Senior Officers of Assam Rifles intheir personal capacity and State Govt. Officers, the guardianrepresentatives, and the representatives chosen from among themembers of the teaching staff.13. In support of his submission, learned counsel appearing for thepetitioners has placed reliance upon the decision of the Apex Court inK Krishnamacharyulu and Others -vs- Shri Venkateswara HinduCollege of Engineering and Another reported in (1997) 3 SCC 571,wherein at para 4, the Apex Court held as thus:“…..In view of the long line of decisions of this Court holdingthat when there is an interest created by the Government in aninstitution to impart education, which is a fundamental right ofthe citizens, the teachers who teach the education get anelement of public interest in the performance of their duties. Asa consequence, the element of public interest requires toregulate the conditions of service of those employees on par withGovernment employees. In consequence, are they also notentitled to the parity of the pay scales as per the executiveinstructions of the Government? It is not also in dispute that allthe persons who filed the writ petition along with the appellanthad later withdrawn from the writ petition and thereafter therespondent-Management paid the salaries on par with theGovernment employees. Since the appellants are insisting uponenforcement of their right through the judicial pressure, theyneed and seek the protection of law. We are of the view that theState has obligation to provide facilities and opportunities to thepeople to avail of the right to education. The private institutionsW.P(C) No.140 (SH) of 2010 Page 16 of 19

cater to the needs of providing educational opportunities. Theteacher duly appointed to a post in the private institution also isentitled to seek enforcement of the orders issued by theGovernment. The question is as to which forum one shouldapproach. The High Court has held that the remedy is availableunder the Industrial Disputes Act. When an element of publicinterest is created and the institution is catering to that element,the teacher, being the arm of the institution, is also entitled toavail of the remedy provided under Article 226; the jurisdictionpart is very wide. It would be a different position, if theremedy is a private law remedy…….”Perusal of the decision in K Krishnamacharyulu (supra) wouldmake it clear that when an element of public interest is created andthe institution is catering to that element, the teacher, being the armof the institution, is also entitled to avail of the remedy providedunder Article 226; however, it would be a different position, if theremedy is a private law remedy.The above ratio laid down by the Apex Court was followed bythis Court in the case of Dipankar Dey and Others -vs- State ofAssam and Others (WP (C) No. 5521/2009) decided vide judgmentand order dated 30.03.2010.14. The correct position to decide as to whether a particularorganization attracts Article 12 of the Constitution, the court musthave regard to various factors, such as, functional character beinggovernmental in essence, plenary control residing in Government orits officers, financial resources and of the State being the chieffunding source, prior history of the same activity having been carriedW.P(C) No.140 (SH) of 2010 Page 17 of 19

on by Government and made over to the new body, the compositionof the body being dominated by the Government representatives, thepresence or absence of deep and pervasive control by theGovernment over the organization.15. In the instant case, the school is run by a society. The object ofthe society is to impart education to the children of Assam Riflespersonnel though there are provisions for admitting students fromoutside. This is mainly not for general public. The boarding fee andtuition fee received from the students are major source of income.From the materials available on record, it cannot be said that theGovernment has any control whatsoever over the school.16. In view of the above, in the considered opinion of this Court, theAssam Rifles Public School is not an instrumentality of the “State”within the meaning of Article 12 of the Constitution of India and assuch the writ petition is found to be not maintainable.17. However, before parting with the case, I would like to put onrecord that so far the instant case is concerned, I find that ARPS isaffiliated to CBSE. Granting affiliation by CBSE is governed by the CBSEAffiliation Bye-laws. Clause 3(v) of the said Bye-laws, amongst others,stipulates that the school in India must pay salaries and admissibleallowances to the staff not less than the corresponding categories ofemployees in the State Government schools or as per scales etc.W.P(C) No.140 (SH) of 2010 Page 18 of 19

prescribed by the Government of India. In other words, payment ofsalaries and admissibleallowances to the staff of the institutionconcerned not less than the corresponding categories of employees inrespective State Government schools or as per scales, etc.prescribed by the Government of India, is a condition precedent forgranting affiliation to such institution by CBSE and therefore, it can besafely presumed that the affiliation to ARPS was granted by the CBSEonly on promise to implement the said provision of the bye-laws,more so, the petitioners were getting the pay and allowances earlier interms of the recommendations of 5 thCPC which is not denied orcontroverted by the respondents. This Court thus hopes and trusts thatthe authority would examine the claims of the petitioners and redresstheir grievance, inasmuch as, on their promise to implement theprovision of clause 3(v) of the bye-laws, the school was affiliated toCBSE.18. The writ petition is disposed of with the above findings andobservations.19. Considering the facts and circumstances of the case, the partiesare left to bear their own costs.gunajitJUDGEW.P(C) No.140 (SH) of 2010 Page 19 of 19