Jammu & Kashmir High Court – Srinagar Bench
Showkat Yousuf Shah & Ors vs Union Of India And Ors on 5 August, 2026
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (C) No. 1911/2019
CM No. 3660/2019
CM No. 7815/2024
CM No. 3575/2026
Reserved On: 31st of July, 2026.
Pronounced On: 5th of August, 2026.
Uploaded On: 5th of August, 2026.
Whether the operative part or
full Judgment is pronounced: Full.
Showkat Yousuf Shah & Ors.
... Petitioner(s)
Through: -
M/s Anjum Ara and Asif Nabi, Advocates.
V/s
Union of India and Ors.
... Respondent(s)
Through: –
Mr Tahir Majid Shamsi, DSGI with
Ms Yasmeen Jan, Advocate.
CORAM:
HON’BLE MR JUSTICE SHAHZAD AZEEM, JUDGE.
(JUDGMENT)
01. Since the Respondents have raised a preliminary objection to
the maintainability of the Writ Petition on the ground that Army Goodwill
School, Wayne, Kupwara [Respondent-School], is neither “Government
Department” nor a “Government aided Institution” and that a Petition
under Article 226 of the Constitution is, therefore, not maintainable against
it, it becomes necessary to first adjudicate the said preliminary objection
before entering into the merits of the claims raised by the Petitioners.
02. The facts relevant for adjudication of the question of
maintainability, stated briefly, are that the Petitioners were appointed from
time to time as PRT/TGT/PGT in the Respondent-School between the years
2013 and 2017. The Petitioners claim that they are holding substantive
posts in the Respondent-School, which is affiliated with the Central Board
of Secondary Education (CBSE) and are, therefore, entitled to the pay scale
of ₹ 9300-34800 + GP Rs.4200, in accordance with the CBSE guidelines.
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03. The Petitioners contend that after they represented for fixation
of pay in terms of the CBSE scales, the management of the Respondent-
School became hostile and initiated the process of holding interviews and
making fresh appointments, thereby creating a real and imminent
apprehension of illegal termination or substitution of their services.
Apprehending such adverse action, the Petitioners have invoked the
extraordinary Writ jurisdiction of this Court under Article 226 of the
Constitution seeking a direction for their continuation in service on the
ground that their services cannot be dispensed with without reasonable
cause and that any such action would be violative of Articles 14, 16 and 21
of the Constitution. The Petitioners have additionally invoked the doctrine
of legitimate expectation and have prayed for issuance of a ‘Writ of
Mandamus’ directing payment of salary in accordance with the CBSE
scales.
04. Learned Counsel appearing for the Petitioners, while arguing
on the question of maintainability, has placed reliance on the Judgments of
Hon’ble Supreme Court in: (i) “Bhola Nath v. The State of Jharkhand &
Ors., 2026 SCC OnLine SC 129″; and (ii) “Kangra Central Cooperative
Bank Pensioners Welfare Association (Registered) v. State of Himachal
Pradesh & Ors., (2024) 14 SCC 697″.
05. Per Contra, the Respondents have stoutly opposed the
maintainability of the Writ Petition and contended that the Respondent-
School is a self-financed Institution established under the aegis of
“Operation Sadbhavana”. It is neither a Government Department nor a
Government-aided Institution, and consequently no Writ lies against it
under Article 226 of the Constitution.
06. The Respondents further contend that the Petitioners were
engaged purely on contractual basis under yearly contracts issued by the
School Management Committee and the very terms of appointment
expressly make the engagement contractual in character.
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07. It is also urged that the CBSE guidelines themselves
contemplate a “contract of service”. In these circumstances, a Writ under
Article 226 does not lie against a purely private or self-financed Institution
for enforcement of a contract of personal service, unless a clear public or
statutory duty is demonstrably shown to exist.
08. It is vehemently argued that contractual employees have no
vested or indefeasible right to continuation, renewal or regularization of
service beyond the contractual terms governing their engagement.
09. It is further canvassed at the Bar that the Petitioners, who are
continuing in service solely under the orders of this Court, have created an
atmosphere of indiscipline, which is adversely affecting the academic
performance of the Institution, particularly of students of Classes 10th and
12th. Despite repeated counselling, the Petitioners have not mended their
behavior and continue to create disturbances.
10. Mr Tahir Majid Shamsi, learned Deputy Solicitor General of
India, appearing for the Respondents, in order to justify the preliminary
objection to the maintainability of the Writ Petition against the Respondent-
School, has placed reliance on the Judgment of the Hon’ble Supreme Court
in “Army Welfare Education Society, New Delhi v. Sunil Kumar
Sharma & Ors., (2024) 16 SCC 598”.
11. I have heard learned Counsel for the parties at length on the
question of maintainability of the Writ Petition and have carefully perused
the pleadings and material available on record.
12. Before evaluating the applicability of the Judgments relied
upon by the respective parties, certain foundational facts require notice.
These facts are essential for determining whether the Judgments cited by
either side are attracted to the facts and circumstances of the present case.
13. As per the guidelines and instructions contained in the
Standard Operating Procedure (SOP), the Army Goodwill Public School,
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Wayne was established under “Operation Sadbhavana” with the object of
providing quality education to the children of the Union Territory of Jammu
& Kashmir. For smooth and effective functioning of the School, a
comprehensive Standard Operating Procedure (SOP) has been framed
comprising detailed guidelines and instructions. The Army Goodwill
Education Society, registered under the Societies Registration Act XXI of
1860, has been constituted as the apex body for administration and
management of the Army Goodwill School, Wayne, Kupwara.
14. These SOPs, inter alia, deal with classification, recruitment,
qualifications and terms and conditions of service of employees. Paragraphs
80, 81, 82, 85, 86, 87 and 102 of SOPs predominantly govern the procedure
for appointment of staff; engagement of temporary, part-time and honorary
Teachers; filling up of temporary vacancies; pay and allowances; pay
scales; revision of pay scales; and termination of services or resignation.
15. From the facts noted above, it is clearly discernible that the
Respondent-School was established under “Operation Sadbhavana” and
that, for the purpose of running the Institution, the Army Goodwill
Education Society, registered under the Societies Registration Act, 1860,
has been created. The Society has been mandated to constitute a School
Management Committee for general supervision and day-to-day
management of the School in accordance with the rules approved and
directions issued from time to time by the apex governing body.
16. It is also specifically averred, and not denied, that the
Respondent-School does not receive any annual financial assistance either
from the Government or from any other statutory authority. The Institution
is stated to be run through self-generated funds and support received from
NGOs/ corporate foundations, besides receiving limited amounts under
“Operation Sadbhavana”.
17. Turning to the Judgments relied upon by the Petitioners, in
Bhola Nath (supra), the Hon’ble Supreme Court directed the Respondent-
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State to regularise the services of the Appellants against the sanctioned
posts to which they had initially been appointed. The direction was founded
on the well-settled principle that the State cannot continue employees on
sanctioned vacant posts for over a decade under the convenient label of
“contractual engagement” and, thereafter, abruptly discontinue their
services. It was specifically held that the State, as a model employer, cannot
take advantage of the unequal bargaining power. The Hon’ble Supreme
Court intervened in that case because the appointments were against regular
sanctioned posts of Junior Engineers (Agriculture) in the Land
Conservation Directorate of the Respondent-State. In the present case,
however, the terms of employment of the Petitioners are governed
exclusively by the contractual framework embodied in the SOP. The ratio
of Bhola Nath (supra) is, therefore, clearly distinguishable and inapplicable
to the facts of the present case.
18. The Petitioners have also placed reliance on the Judgment in
Kangra Central Cooperative Bank Pensioners Welfare Association
(supra). In that case, the challenge was directed against stoppage of pension
by the Bank. The learned Single Judge held the Writ Petition maintainable
on the facts of that particular case, in that, the State exercised deep and
pervasive control over the Bank. While arriving on these findings, the
learned Single Judge took into consideration the share of State and its
control on the Bank. Though the Division Bench set aside this Judgment,
but the Hon’ble Supreme Court held the Petition was maintainable and
restored LPA for deciding it on merits. In any event, the findings recorded
by the Writ Court in Kangra Central Cooperative Bank Pensioners
Welfare Association (supra) rested on the specific composition of the
Bank, the shareholding of the Government and the predominant role played
by the State. Without establishing a similar factual foundation of deep and
pervasive State control, the Petitioners cannot drive any benefit from the
said Judgment.
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19. Coming now to the Judgment relied upon by the Respondents
in Army Welfare Education Society, New Delhi (supra), the central issue
that arose for consideration before the Hon’ble Supreme Court was whether
the Army Welfare Education Society [AWES] assumes the description of
“State” under Article 12 of the Constitution of India so as to render a Writ
Petition under Article 226 of the Constitution maintainable against it.
Framed differently, the questions were: (a) whether a pure service dispute
between a private educational institution and its employees can be
adjudicated under Article 226 of the Constitution; and (b) even if AWES is
treated as a body performing a public duty, whether all its decisions are
amenable to judicial review or only those decisions having a public law
element therein can be judicially reviewed under the Writ jurisdiction.
20. The Appellant-AWES submitted before the Apex Court that
Respondents were employees of a purely private unaided minority
Institution; that there existed no privity of contract with AWES; that AWES
is a wholly unaided private society whose finances are derived from fees
and which receives neither any Government grant nor is subject to deep and
pervasive Government control; that, while the function of imparting
education to children is a public function, a dispute concerning continuity
of service and service conditions of private employees falls squarely within
the realm of a pure private contract; that a contract of purely personal
service cannot be specifically enforced; and that compelling retention of
pre-existing higher service conditions would create two classes of
employees within the same Institution and, therefore, cause severe financial
strain, particularly when the staff were already being paid salaries and
allowances at par with other AWES employees, with increments for past
experience.
21. In rebuttal, the Respondents contended that AWES is “State”
under Article 12 for the reason that its address is shown as the Adjutant
General’s Branch in the Integrated Headquarters of the MoD (Army); that
Board of Governors and Executive Committee comprise senior Army
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Officers, including Lt. Generals, COAS, GOCs-in-C; that the corpus and
grants emanate from the welfare funds of the Adjutant General’s Branch,
Army Headquarters; that the Army Public School is affiliated with the
CBSE and is governed by its norms including Bye-Laws requiring payment
of salaries not less than the scales applicable to State or Central
Government employees; that even if the Institution is private, the service
conditions are regulated by statutory provisions and CBSE Bye-Laws,
thereby making the dispute amenable to Writ jurisdiction; and that the
Respondents had a legitimate expectation that their service conditions
would not be unilaterally altered to their detriment upon a change in
Management, they having never been consulted in the matter.
22. After an exhaustive consideration of the rival submissions and
a comprehensive survey of the entire body of case law on the subject, the
Hon’ble Supreme Court held that AWES is a private unaided society which
is engaged in the function of imparting education that involves a public
duty. However, the mere existence of a public duty does not automatically
render every service dispute against such an Institution amenable to the
Writ jurisdiction of the High Court under Article 226 of Constitution. It has
been further held that the relationship between the Respondents and AWES
is essentially that of a private employer and employee arising out of a
private contract, and that the breach of such a contract does not involve any
public law element. It is also reiterated that a contract of personal service
cannot ordinarily be specifically enforced. In this regard, reference was
made to the settled law laid down in: Vaish Degree College v. Lakshmi
Narain, (1976) 2 SCC 58; J. Tiwari v. Jwala Devi Vidya Mandir, (1979)
4 SCC 160; and Dipak Kumar Biswas v. Director of Public Instruction,
(1987) 2 SCC 252.
23. The Hon’ble Court further clarified that although the power
conferred by Article 226 is wider in amplitude than Article 12 and extends
to “any person” or “authority” performing a public duty, such jurisdiction
can be exercised only when the dispute possesses a public law element or is
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governed or controlled by a statutory provision. Consequently, Writ
jurisdiction is not available in purely service matters of private unaided
educational institutions that are not controlled or governed by statutory
provisions. The Apex Court traced this principle through the decisions in
Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti
Mahotsav Smarak Trust v. V. R. Rudani, (1989) 2 SCC 691; K.
Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg.,
(1997) 3 SCC 571; Satimbla Sharma v. St. Paul‘s Senior Secondary
School, (2011) 13 SCC 760; and St. Mary’s Education Society v.
Rajendra Prasad Bhargava, (2023) 4 SCC 498.
24. After a threadbare discussion and after taking into
consideration the entire evolution of the law on the subject, the Hon’ble
Supreme Court held that the High Court committed an egregious error in
entertaining the Writ Petition and treating AWES as a “State” within the
meaning of Article 12 of the Constitution.
25. On the question of legitimate expectation, the Hon’ble
Supreme Court held that the doctrine of legitimate expectation is essentially
a public law doctrine evolved to check arbitrariness in State action. It does
not govern private contractual relationship wherein the doctrine of
promissory estoppel may apply. The doctrine of legitimate expectation was,
therefore, held to be wholly inapplicable to the facts of that case.
26. The soul of the findings returned by the Hon’ble Supreme
Court on the question whether AWES is “State” is that while the function of
imparting education involves a public duty and therefore contains a public
law element, the relationship between the Institution and its employees
remains that of a private employer and employee arising out of a private
contract. A pure service dispute of this nature does not involve any public
law element. Consequently, the Writ jurisdiction under Article 226 of the
Constitution is not available in respect of service matters of private
educational Institutions that are neither controlled nor governed by any
statutory provision.
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27. The final conclusion culled out by the Hon’ble Supreme Court,
on the basis of the law evolved up to the date of the Judgment, is that the
School cannot be said to be discharging any public duty in connection with
the employment of its teaching staff. The Apex Court further held that the
CBSE affiliation Bye-Laws do not have statutory force, whereas, the
School is affiliated to CBSE for the sake of convenience, mainly for the
purpose of recognition and syllabus or the courses of study.
28. The Judgment of Hon’ble Supreme Court in Army Welfare
Education Society, New Delhi (supra), on all fours, lends supports to the
preliminary objection raised by the Respondents. The Respondent-School is
neither a “Government Department” nor a “Government-aided
Institution”. Nor can it be regarded as “a person” or “authority”
performing a public duty in connection with the employment of the
Petitioners against which a ‘Writ of Mandamus’ can legitimately be issued.
29. Indisputably, the Respondent-School is a self-financed
Institution established under the aegis of “Operation Sadbhavana”. It is
equally true that the Respondent-School is neither a creation of Statute nor
are the service conditions of the Petitioners governed by any service rules
having statutory force. The relationship between the Petitioners and the
Respondent-School is, therefore, that of a private employer and employee
governed solely by the contractual stipulations in the shape of guidelines
and instructions contained in the SOP. Consequently, such SOP cannot be
enforced under Article 226 of the Constitution, nor is the dispute amenable
to judicial review under Writ jurisdiction.
30. From the series of Judgments discussed above, it is well settled
that even if a body performing a public duty is amenable to the Writ
jurisdiction of this Court, not all its decisions are subject to judicial review.
Only those decisions which possess a public element can be subjected to
judicial scrutiny under Article 226 of the Constitution. Where the action
challenged lacks a public law element, a ‘Writ of Mandamus’ cannot be
issued, as such action remains essentially of a private character.
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31. For the foregoing reasons, the preliminary objection raised by
the Respondents with regard to the maintainability of the Writ Petition
succeeds. Consequently, the present Writ Petition is held to be non-
maintainable and is, accordingly, dismissed. Interim direction(s), if any,
subsisting as on date, shall stand vacated.
32. Pending application(s), if any, shall also stand disposed of,
accordingly.
(SHAHZAD AZEEM)
JUDGE
SRINAGAR
August 5th, 2026
“TAHIR”
a. Whether the Judgment is approved for reporting? Yes.
Tahir Manzoor Bhat
I attest to the accuracy and
authenticity of this
document
