Mukundakam Sharma, J.
1. As the facts and the issues raised in these two writ petitions and the contempt petition are similar, I propose to dispose of both the writ petitions and the contempt petition by this common judgment and order.
2. The petitioners in the writ petitions were/are working as teaching and non-teaching staff of Delhi Area Primary School (DAPS in short) at NOIDA. The petitioners have been working in the aforesaid capacities in the said school for different periods. The petitioners are aggrieved by the notices issued by the respondent dt. 18.3.1999 intimating the petitioners that they would be relieved from their duties that they have been doing, w.e.f. 31.3.1999 and that they would be paid three months salary up to 30.6.99 in lieu of three months notice period as per the constitution of the school. Copies of the said notices have been placed on record. Since the contents of the said notices are similar, I propose to take up and examine and discuss the notice issued to the petitioner No.1, in CWP No. 1722/99 as a measure of convenience. In the said notice it was stated that the petitioner No.1 was appointed as Teacher in Delhi Area Public School at NOIDA w.e.f. 21.7.1988 on year to year contract basis and that her yearly contract for the academic Year 1998 to 1999 stood expired on 21.7.98 and that since the Management Committee decided to close the school w.e.f. 1.4.199, her contract with the school would not be renewed and that she would stand relieved from her duties as Teacher w.e.f. 31.3.1999 and that she would be paid three months pay up to 30.6.99 in lieu of three months notice period as per the constitution of the school. Similar notices were also issued to all other petitioners and, thereforee, being aggrieved by the same, they have preferred the present writ petition in this court.
3. So Far C.W. No. 1798/99 is concerned, the same was filed by the parents seeking for similar relief of a direction to the respondents to continue to keep the concerned school functional. As there is parity in the reliefs sought for in the two writ petitions, they are being taken up together for the purpose of discussion and disposal.
4. My attention was drawn by the counsel appearing for the petitioners to the fact that the services of the petitioner No.1 was earlier terminated by an order of the respondents dt.1.9.98. The said order was challenged by the petitioner No.1 in this court through a writ petition, which was registered and numbered as CW No. 5300/98. In the said writ petition, this court considered the contents of the appointment letter of the petitioner No.1, which provided that the petitioner would be on probation for a period of one year. After considering the nature and character of the appointment of petitioner No.1 the court framed the issue that arose for consideration in the said writ petition. The issue that was framed to be answered in the said writ petition was whether the respondents in view of the letter of appointment and Clause 41 of the constitution of the school could summarily terminate the services of the petitioner. After considering the nature of the appointment of the petitioner and Clause 41 of the constitution of the school, it was held by the court that the action of the respondents in terminating the services of the petitioner was unconstitutional and illegal and she was directed to be reinstated in service on the ground that no such termination was possible without giving a reasonable opportunity of hearing to the petitioner.
5. During the course of arguments in the present writ proceedings, counsel appearing for the respondents took up a preliminary objection to the maintainability of the writ petition on the ground that the society, namely, the Army Welfare Educational Society, who manages the respondent No.3/ school in question, is neither a State not an authority as envisaged under Article 12 of the Constitution of India. The aforesaid preliminary objection raised by the respondents thereforee, falls for determination in the present proceedings. It was contended on behalf of the respondent school that the Army Welfare Housing Organisation, which owns the building of the school has let out the same to Army Welfare Educational Society to start and administer a preparatory and primary school for the children of the serving and retired defense services personnel stationed at NOIDA and its vicinity. It is also alleged in the writ petition that the respondent No.1 allotted a fund of Rs. Six Lacs to the society for starting and managing the said school.
6. In the counter affidavit filed by the respondents, it is categorically stated by the respondents that the said school is a preparatory school, which is totally founded and run out of the regimental funds. It is also stated that the Ministry of defense, Union of India, neither funds the school in question nor otherwise exercises any control over running/funding of the school. It is also stated that the Ministry of defense has no scheme under which funds can be provided to the regimental private schools. On the basis thereof, it was submitted that the society is neither a State nor would come within the ambit of the expression any other authority as envisaged under Article 12 of the Constitution of India.
7. The constitution of the Delhi Area Primary School is placed on record. According to the revised constitution, which was effective from 1.4.94, the school in question is run by Headquarters Delhi Area for the primary education of children of serving and retired defense Service Personnel and that it is a regimental welfare institution. The said school has a Managing Committee. It is also stated in the counter affidavit filed by the respondents that the school in question was established in 1986 as an extension of Delhi Area Public School, Delhi Cantonment to cater for educational needs of children of serving and retired defense Personnels living in NOIDA and around. Initially Delhi Area Public School had three classes i.e. Nursery, K.G. & Class-I, which were subsequently upgraded up to Class-IV and that since subsequently a Full-fledged school, namely- Army Public School was started at NOIDA in 1995 classes I to IV of DAPS were shifted to Army Public School and, thereforee, the respondent school was left with only Nursery and preparatory classes. It was further stated that the said school is run totally out of regimental funds and that the school is neither funded by the Central Government or the State Government nor it is controlled by the Central or State Government and, thereforee, the society is not a State within the meaning of Article 12 of the Constitution of India. It was also stated that over a period of years the strength of children of defense Personnel started decreasing in the respondent school and that civilians came to be in majority thereby defeating the very objective of the school and that further keeping in mind the totality of circumstances including decreasing strength of the defense personnel children in the respondent school and increasing population at Delhi Cantonment, a considered decision was taken on 18.3.1999 by the management committee of the respondent school to close down the said school. It is also stated that as per Clause 31 of the constitution of the school, the teacher pupil ratio has to be 1:35 whereas at the relevant time when the decision for closure of the school in question was taken, the said ratio was reduced to 1:18 and accordingly the school was found not to be viable and economical. In view of the aforesaid position and status of the school, it is stated that a decision was taken to close down the school and, thereforee, notices were issued to the petitioners, the legality of which are challenged in this writ petition.
8. Mr. Sabharwal, learned counsel appearing for the petitioners vehemently submitted that the issue raised by the respondents regarding maintainability of the writ petition in this court on the ground that the society running the school is not a State within the meaning of Article 12 of the Constitution of India, cannot be raised in these writ petitions as the same is barred by the principles of rest judicata/constructive rest judicata. It was also submitted that the society which owns the school, discharges a public function, namely, imparting of education to children and, thereforee, it is amendable to writ jurisdiction of this court. In support of the said contention, learned counsel relied upon the decision of the Supreme Court in UNNI KRISHNAN J.P. AND ORS. V. STATE OF ANDHRA PRADESH AND ORS. : [1993]1SCR594 . It was also submitted by him that in the earlier writ petition filed in this court, it having been decided that the respondents are performing the functions of State by imparting education and the teachers who impart education having an element of public interest in the performance of their duties, the element of public interest gets attracted, and thereforee, the writ petitions are maintainable.
9. I have carefully examined the decision rendered by this court in the earlier writ petition filed by the petitioner No.1 herein which was registered and numbered as CWP No. 5300/98. A careful reading of the said decision would indicate that the issue with the regard to maintainability of the writ petition as such was not specifically raised nor the said issue was decided by this court and, thereforee, in my considered opinion, the aforesaid issue regarding maintainability of the writ petition cannot be said to be barred by the principle of rest judicata/constructive rest judicata. The issue regarding maintainability of the writ petitions goes to the root of the matter and, thereforee, could be raised at any stage even if the same was not raised earlier by the respondents. The respondents school is run by the society. I have also extracted relevant provisions of the constitution of the school. It cannot be challenged that the said school is being funded out of the regimental found. In a recent decision of the Supreme Court in UNION OF INDIA AND ANR. V. CHOTELAL AND ORS. : AIR1999SC376 , the nature of the regimental fund came to be considered and decided. After discussing and scrutinising the character of the regimental Fund, it was held by the Supreme Court that the said fund cannot be held to be public fund by any stretch of imagination and a person paid out of such fund cannot be held to be holder of civil post within the Ministry of defense. In the said decision the Supreme Court noticed some provisions of the defense Services Regulations, which give an idea as to the characteristic of the regimental fund. The court considered Regulation 801 (a) of the said regulations wherein public funds have been defined as follows:
801(a) Public Funds- Include all funds which are financed entirely from public money, the unexpended balances of which are refundable to Government in the event of not being devoted of the objects for which granted, and also
(i) unissued pay and allowances;
(ii) Office allowance fund; and
(iii) the estates of deceased men and deserters.'
10. The Supreme Court also considered Regulation 801(b), which defines 'Regulation Fund' to mean comprising all funds, other than pubic funds maintained by a Unit. Regulation 820 of the said Regulations was also considered by the Supreme Court, which provides for administration of such Regimental Fund. Regulation 820(a) clearly indicates that all funds other than public fund as defined in Para 801 maintained by a unit, are financed either wholly or partly from public money. The Regulation further provides that the Commanding Officer acts as a trustee in relation to the 'Regimental Fund' and is responsible that the funds are properly applied with special reference to the object of the fund and for the benefit of the personnel or unit as a whole. After examining the said provisions, the Supreme Court held that the said fund, thereforee, cannot be held to be public fund by any stretch of imagination and the 'Dhobis' paid out of such fund cannot be held to be holders of civil post. It is, thus, conclusively laid down by the Supreme Court that the 'Regimental Fund' is not a public fund and, thereforee, the school run by a society out of regimental fund cannot be said to be discharging public functions.
11. In TEJRAM PARASHRAMJI BOMBHATE AND ORS. V. ORDNANCE FACtorY, AMBAZARI, NAGPUR AND ORS. reported in 1991 SCC (L&S;) 810, the Supreme Court held that there is no relationship of master and servant between the Central Government and the teachers, who were employed in the Secondary School by local arrangement made by the officers of the further held that the Administrative Tribunal could not have issued a direction to compel the Central Government to assess the need of the school and create necessary posts in the school as the same is a policy matter involving financial burden. Reference may also be made to the decision in MRS. ASHA KHOSA V. CHAIRMAN, ARMY PUBLIC SCHOOL, NORTHERN COMMAND & ORS. reported in MLJ 1997 J&K; 71. In the said decision rendered by a Division Bench of the Jammu & Kashmir High Court, it was held that insofar as the Army Public School, Udhampur is concerned, neither the funding is by the Government of India or by the State Government, nor the authority is controlled by the Central Government or by the State Government and, thereforee, it cannot be said to be a State within the meaning of Article 12 of the Constitution of India nor the Rules called the Army Welfare Education Society Rules can be said to be statutory in nature and, thereforee, the said society is not amenable to the writ jurisdiction under Article 12 of the Constitution of India.
12. On examination of the records placed before me, to which reference has been made hereinabove and the various decisions relied upon by the counsel appearing for the parties, I am of the considered opinion that the Society who is managing and running the respondent school out of Regimental Fund would not come within the ambit of the expression 'State' or any other authority as envisaged under Article 12 of the Constitution of India. The school in question is managed out of the Regimental Fund, which is not a public fund and the said school is managed by a society registered under the Societies Registration Act. The same is neither controlled nor managed by the Government of India or by the State Government nor he society receives any fund from the said Governments. The school in question is a primary school at at the time when the decision for closure of the school was taken it had only the preparatory classes going on in the school. The rest of the classes were shifted to Army Public Schoo, which was started at NOIDA. At the time when the aforesaid notices were issued, there were only two classes and at that stage the ratio of teachers and students was 1:15 whereas in the constitution of the school, the ratio between the teacher and the students was required to be 1:35. When a conscious decision has been taken by the respondent society to close the school, on the ground of non-viability of the school on financial reasons the same is a decision concerning policy matter involving financial implications. The society was running the school from a premises taken on lease from respondent No.1 and the said lease stands cancelled. The society, in view of the changed circumstances, decided to close the school but the services of the petitioners are being continued in the light of the interim order passed by this court. In view of the aforesaid position, could this court direct the respondents to continue to run the school, which would necessarily involve financial burden? The answer has to be in the negative in view of the position settled by the Supreme Court particularly in the decision of Tejram Parashramji Bombhate (supra).
13. thereforee, in the light of the discussion aforesaid, I hold that neither the writ petitions filed by the petitioners are maintainable nor any direction could be issued to the respondents not to release the petitioners from their services as the same would necessarily mean and would amount to a direction to continue to make the school functional inspire of financial constraint and non-viability of the school. Such a direction also cannot be issued as the same would also amount to interfering with the policy matter of the respondent involving financial burden. In the light of the aforesaid discussion, I find no merit in the writ petitions and they are dismissed.
14. In the second writ petition being CWP No.1798/99, which is also dismissed and which was filed by the parents, none appeared to press the said petition at the time of arguments. The students, on whose behalf the said writ petition was filed by their parents, have already joined other schools and, thereforee, nothing survives in the said writ petition. In view of dismissal of the writ petitions and also upon examination of he allegation made in the contempt petition, I find no merit in the contempt petition also and the same stands dismissed. However, before parting with the records of the case, I would like to observe that some of the petitioners have worked in the respondent school for number of years and, thereforee, the services of the petitioners could be appropriately utilised by the respondents in appropriate places. thereforee, if and when appropriate vacancy arises in any school of the present society or any other school or any sister concern of the respondent society, the cases of the petitioners shall be considered and they would be suitably accommodated in any such school in accordance with law.