ATTAU RAHMAN MASOODI,J. - (1.) This writ petition filed under Article 226 of the Constitution of India, questions the legality of the order dated 20.10.2015 (Annexure -1), passed in purported exercise of powers conferred under Clause 3.4 of New Model Employee Service Rules, 2015 whereby the services of the petitioner on the post of Data Entry Operator (Clerk) have been dispensed with. The petitioner has further assailed the validity of Clause 3.4 read with Note -2 appended to Appendix -A of the New Model Service circulated under the authority of a Management i.e. Adjutant General vide letter dated 13.7.2015 as contained in Annexure -28 to the writ petition, which restricts tenure of civil and other rank employees to a maximum period of ten years. The rule framed by the Society is challenged alleging it to be violative of Article 14 of the Constitution of India.
(2.) An alternative relief for treating the rules to be applicable prospectively has also been made in the writ petition and the petitioner, inter alia, seeks his continuance in service on the basis of his renewal vide order dated 20.10.2015, according to which the contract of service in relation to the petitioner was renewed up to 31.10.2016. A preliminary objection has been raised by Sri Alok Mathur, learned counsel for the respondents no. 2 and 3, who has filed objections, wherein, relying upon a Division Bench judgement of this Court in the case of Union of India v. Dililp Kumar Pandey 2010 (7) ADJ 97 , and a Division Bench judgement of Jammu and Kashmir High Court rendered in the case of Mrs. Asha Khosa v. Chairman, Army Public School, Northern Command and others [Writ Petition (Service) No. 1415 of 1996 decided on 17.2.1997], it is urged that the writ petition in respect of the relief as a whole is not maintainable hence liable to be dismissed at the admission stage. In the body of preliminary objections, it is averred that the Society i.e. Army Welfare Education Society, is a body registered under the Societies Registration Act, 1860 which, of course, does comprise of army personnel as ex -officio members but there is no control of the Central Government either financial or otherwise, which may bring the said Society within a pervasive control of the Central Government so as to be treated as other authority or instrumentality of the State under Article 12 of the Constitution of India, notwithstanding the fact that the Society does cater the public purpose of education for the children of army and ex - army personnel.
(3.) Noting the said preliminary objections, we had passed the following order on 9.5.2016: "A preliminary objection has been raised by Sri Alok Mathur, learned counsel for the respondent No.2 and 3 that the present writ petition would not be entertainable inasmuch as, the nature of relief against the respondent No.2 and 3 cannot be adjudicated in the writ jurisdiction for which reliance has been placed on three Division Bench judgments of this Court. Sri Tripathi prays that he may be granted time to study the matter. Put up tomorrow as fresh showing the name of Sri Alok Mathur as the learned counsel for the respondent No.2 and 3." We may also put on record that even though the dispute relates to a Class III post service where a petition would ordinarily lie before the learned Single Judge, yet in view of the challenge raised to the validity of the Model Service Rules, the same has been reported to be cognizable by a Division Bench in terms of the orders passed by Hon'ble the Chief Justice.;