05.03.2026 vs State Of J&K & Ors on 12 March, 2026

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    Jammu & Kashmir High Court

    Reserved On: 05.03.2026 vs State Of J&K & Ors on 12 March, 2026

    Author: Sanjay Dhar

    Bench: Sanjay Dhar

                                                                          2026:JKLHC-JMU:797
    
    
    
    
        IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                            AT JAMMU
    
                               SWP No. 908/1988
    
    
                                            Reserved on: 05.03.2026
                                         Pronounced on : 12.03.2026
                                           Uploaded on : 12.03.2026
                                     Whether the operative part or full
                                       judgment is pronounced: Full
    
    Subash Raina
                                                           ....Petitioners
    
                   Through:-     Mr. Harpreet Singh, Advocate.
    
                               V/s
    
    State of J&K & Ors
                                                        .....Respondents
    
                   Through:-     Mr. Atul Verma, Advocate vice
                                 Mr. Adarsh Sharma, Advocate.
    \
    
    
    CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
                                 JUDGMENT
    

    01. The petitioner, through the medium of the present

    petition, has challenged Order No. CEO/K/2895-2901 dated

    SPONSORED

    30.06.1988 issued by respondents No. 4 and 5 whereby

    services of the petitioners have been discontinued w.e.f.,

    01.07.1988. A direction commanding the respondents to

    reinstate the petitioner in service has also been sought.

    Besides this, the petitioner has also challenged the vires of

    Section 14(2) of the J&K Shri Mata Vaishno Devi Shrine Act,

    1986.

    SWP No. 908/1988 Page 1 of 14

    2026:JKLHC-JMU:797

    02. As per case of the petitioner, he was appointed as

    Pujari at Darbar of respondent No. 1 on 27.09.1986 by

    respondent No. 4 on a consolidated salary of Rs. 700/- per

    month. It has been submitted that at the time when the

    petitioner was employed in the Darbar, he was a student and

    he had left his studies. It has been submitted that in terms of

    impugned order dated 30.06.1988 (supra), his services have

    been discontinued thereby ruining the career of the petitioner.

    It has been submitted that the petitioner was given to

    understand that his employment is permanent in nature. It is

    being submitted that the petitioner discharged his duties with

    devotion and honestly but without any fault on his part, his

    services were terminated by respondents No. 4 and 5. It has

    been submitted that the petitioner has a number of

    dependents to look after, as such, the impugned order has

    worked harshly against him.

    03. According to the petitioner, the impugned order of

    disengagement of the petitioner is violative of Articles 14, 16

    and 311 of the Constitution of India being in derogation of

    principles of natural justice. It has been submitted that

    services of the petitioner could not have been terminated

    without adopting procedure prescribed under law. It has been

    submitted that no enquiry was held by the respondents before

    dispensing with the services of the petitioner.

    SWP No. 908/1988 Page 2 of 14

    2026:JKLHC-JMU:797

    04. According to the petitioner he was appointed

    against a clear vacancy and the said vacancy is still existing,

    as such, there was no need for dispensing with his services.

    The order impugned, as such, according to the petitioner, is

    malafide in nature and it has cast a stigma upon him. It has

    been submitted that in May, 1988, the respondents have

    created certain posts on which certain other persons have

    been adjusted but the petitioner has been thrown on road side

    along with his family.

    05. It has been contended that Section 14(2) of the

    Jammu and Kashmir Shri Mata Vaishno Devi Shrine Act, 1986

    is ultravires of the Constitution being violative of Article 14 of

    the Constitution as it confers vague and unbridled powers on

    respondent No. 1.

    06. The respondents have contested the writ petition by

    filing their reply. In their reply, the respondents have

    submitted that termination of the petitioner is not punitive in

    nature nor does it cast any stigma upon the petitioner. It has

    been submitted that appointment of the petitioner was purely

    on adhoc basis and it does not confer any right upon him to

    hold the post. It has been contended that protection available

    under Article 311 of the Constitution of India cannot be

    extended to the petitioner because respondent-Shri Mata

    Vaishno Devi Shrine Board (hereinafter to be referred to as

    “respondent-Board”) is not the Government but is an

    SWP No. 908/1988 Page 3 of 14
    2026:JKLHC-JMU:797

    autonomous body. The respondents have denied having

    assured the petitioner that his appointment will be made

    permanent in nature. It has been submitted that having

    regard to the nature of the impugned order, no enquiry

    whatsoever was required to be conducted before disengaging

    the petitioner. It has been contended that Jammu and

    Kashmir Shri Mata Vaishno Devi Shrine Act is not violative of

    any provisions of the Constitution and there is no ground to

    assail the vires of the said Act. It has been submitted that the

    ground projected by the petitioner is baseless and

    misconceived.

    07. I have heard learned counsel for the parties and

    perused record of the case.

    08. Before dealing with the contentions raised in the

    present writ petition, it would be apt to notice the history of

    the present case. Initially, the writ petition was decided by

    this Court by virtue of judgment dated 22.07.1998. Vide the

    said judgment, the writ petition was allowed and the impugned

    order of disengagement of the petitioner was set aside. A

    direction was issued to the respondents to reinstate the

    petitioner without back wages. The said judgment came to be

    challenged by the respondents by way of Letters Patent Appeal

    bearing LPA (SW) No. 66 of 2000. Vide judgment dated

    5.5.2000, a Division Bench of this Court allowed the LPA and

    the judgment passed by the writ court on 22.07.1998 was set

    SWP No. 908/1988 Page 4 of 14
    2026:JKLHC-JMU:797

    aside. The judgment of the Division Bench came to be assailed

    by the petitioner by way of SLP (C) No. 14120/2000 before the

    Supreme Court. After granting leave, the same was registered

    as Civil Appeal No. 782 of 2005. Vide order dated 28.01.2005,

    the Supreme Court set aside the judgment of the writ court as

    well as the judgment of the Division Bench and remanded the

    matter to this Court for its fresh decision in accordance with

    law having regard to the observations made in the said order.

    It will be profitable to reproduce the relevant extracts of order

    dated 28.01.2005 passed by the Supreme Court.

    “Leave granted.

    In view of the judgment of this Court in Chain Singh Vs.
    Mata Vaishno Devi Shrine Board and Anr
    [2004 (8) SCALE
    348], the impugned judgment of the Division Bench and
    that of learned Single Judge are set aside and Writ
    Petition No. 908 of 1988 is remanded to this High Court for
    its fresh decision in accordance with law, having regard to
    what has been said in the aforesaid judgment.
    The appeal stands allowed.”

    09. It is in the aforesaid circumstances that the matter

    has landed back before this Court. In terms of the

    observations of the Supreme Court made in the afore-quoted

    order, the matter has to be decided in the light of the judgment

    passed by the Supreme Court in Chain Singh‘s case (supra).

    10. In the above context, it is to be noted that the issue

    that was projected before the Supreme Court in Chain Singh’s

    case (supra) was with regard to maintainability of the writ

    SWP No. 908/1988 Page 5 of 14
    2026:JKLHC-JMU:797

    petition against respondent-Board. The said case came to be

    decided by the Supreme Court vide its judgment dated

    28.09.2004. While deciding the said case, the Supreme Court

    has observed as under:

    “We allow the appeals and setting aside the impugned
    judgments of the High Court, remit LPA No. 182 of 1992,
    LPA No. 183 of 1993, OWP No. 523 of 1995 and writ
    petition, SWP No. 930 of 1998 to the High Court for
    hearing and decision in accordance with the law laid
    down by
    this Court in Pradeep Kumar Biswas case
    (supra).

    We have refrained from expressing any view on the
    apprehension voiced by the learned counsel for the
    appellants that Section 20 of the 1988 Act bars civil suits
    and adjudications under labour laws. The High Court
    shall, therefore, first consider the maintainability of the
    writ petitions under Article 226 of the Constitution of India
    by examining whether the Shrine Board is amenable to the
    writ jurisdiction of the High Court, by applying the
    principles and tests laid down in Pradeep Kumar Biswas
    case (supra).

    The High Court shall also consider whether any
    alternative remedy is available to the writ petitioners by
    way of civil suit or industrial adjudication. It shall be open
    to the High Court to take an appropriate decision
    thereupon, including the relegation of the parties to the
    appropriate remedy, if the High Court upon interpretation
    of the provision of Section 20 of the 1988 Act comes to the
    conclusion that such alternative remedy is available to the
    writ petitioners before it.

    In case the High Court takes the view that writ petitions
    are tenable, and that no other equally efficacious
    alternative remedy is available to the writ petitioners, then
    the High Court shall decide the writ petitions on their
    merits.

    SWP No. 908/1988 Page 6 of 14

    2026:JKLHC-JMU:797

    Although, learned counsel have cited before us a large
    number of authorities, we consider it unnecessary to refer
    to them in the view we are inclined to take.

    All contentions of the parties are kept open to be
    canvassed before the High Court.

    Considering that the writ petitions have been pending for
    quite some time, and that they also pertain to cases of
    termination of services of employees, it is preferable that
    the hearing of the writ petitions is expedited. The High
    Court is requested to dispose of the writ petitions,
    preferably, within a period of six months from the receipt
    of this judgment.”

    11. From the foregoing observations of the Supreme

    Court, it is clear that the issue whether the Shrine Board is

    amenable to writ jurisdiction was to be decided by this Court

    by applying the principles and tests laid down in Pradeep

    Kumar Biswas Vs. Indian Institute of Chemical Biology

    [(2002) 5 SCC 111].

    12. After passing of order dated 28.01.2005 passed by

    the Supreme Court in the present case and judgment dated

    28.09.2004 in Chain Singh‘s case (supra), the issue whether

    the Shrine Board is amenable to the writ jurisdiction of this

    Court came to be decided by a Division Bench of this Court in

    Omkar Sharma & Ors Vs. Mata Vaishno Devi Shrine Board

    (2005) 3 JKJ 388. The Division Bench, after taking note of

    the ratio laid down by the Supreme court in Pradeep Kumar

    Biswas‘s case (supra) has observed as under:

    SWP No. 908/1988 Page 7 of 14

    2026:JKLHC-JMU:797

    “20. In the above premises even though the Shrine Board has been
    constituted under a statute and, therefore, has a statutory status, in the
    absence of any kind — even an iota of control of the Government —

    financial, functional or administrative — it cannot be said to be State or an
    authority within the meaning of Article 12 of the Constitution of India. It
    has, therefore, to be held that the writ petitions for enforcement of
    fundamental rights against the Shrine Board are not maintainable. It is
    not the case of the appellants/petitioners that de hors the claim as to
    infringement or enforcement of fundamental right, the writ petitions
    would succeed.”

    13. From the foregoing analysis made by the Division

    Bench, it comes to the fore that even though the Shrine Board

    has been constituted under a statute and has, therefore,

    acquired a statutory status, yet in the absence of any kind

    control of the Government-financial, functional or

    administrative-it cannot be said to be a State or an authority

    within the meaning of Article 12 of the Constitution of India.

    The Division Bench further held that a writ petition for

    enforcement of the fundamental rights against the Shrine

    Board is not maintainable. The said judgment of the Division

    Bench has acquired finality and at present the legal position is

    that writ petitions against the respondent-Board seeking

    enforcement of fundamental rights are not maintainable.

    14. However, while a writ petition seeking enforcement

    of fundamental rights against the respondent-Board may not

    be maintainable, the situation would be different in respect of

    a case regarding the enforcement of a right other than

    SWP No. 908/1988 Page 8 of 14
    2026:JKLHC-JMU:797

    fundamental rights. The respondent Board may not be

    amenable to writ jurisdiction of the High Court when it comes

    to enforcement of fundamental rights as it has been declared

    not to be State within the meaning of Article 12 of the

    Constitution of India. However, the language of Article 226 of

    the Constitution is wide and as per the provisions contained in

    the said Article, the High Court has power to issue writs to any

    person or authority including any Government, therefore, the

    High Court while exercising its powers under Article 226 of the

    Constitution of India is vested with jurisdiction to issue writs

    even against those bodies, who do not qualify to be State

    within the meaning of Article 12 of the Constitution of India.

    The Supreme Court in the case of Board of Control For

    Cricket in India Vs. Cricket Association of Bihar & Ors,

    (2015) 3 SCC 251 has settled the controversy by holding that

    even though BCCI may not be an authority under Article 12 of

    the Constitution, yet the same is amenable to writ jurisdiction

    because of wide scope of Article 226 of the Constitution of

    India. It has been held that the words “any person or

    authority” used in Article 226 of the Constitution of India not

    only include the statutory authorities and instrumentalities of

    the State but it also includes any person or authority

    performing public duties.

    15. The next issue that arises for determination is as to

    in what cases, a writ petition is maintainable against a body,

    SWP No. 908/1988 Page 9 of 14
    2026:JKLHC-JMU:797

    which does not qualify to be a State within the meaning of

    Article 12 of the Constitution. This question has been

    answered by the Supreme Court in the case of Anandi Mukta

    Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti

    Mahotsav Smarak Trust and Ors Vs. V.R. Rudani and Ors,

    1989 (2) SCC 691 by holding as under:

    “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 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. 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.

    *** *** *** ***

    17. There, however, the prerogative writ of mandamus is
    confined only to public authorities to compel performance of
    public duty. The ‘public authority’ for them means everybody
    which is created by statute– and whose powers and duties are
    defined by statue. So, Government departments, local

    SWP No. 908/1988 Page 10 of 14
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    authorities, police authorities, and statutory undertakings and
    corporations, are all ‘public authorities’. But there is no such
    limitation for our High Courts to issue the writ ‘in the nature of
    mandamus’. Article 226 confers wide powers on the High Courts
    to issue writs in the nature of prerogative writs. This is a striking
    departure from the English law. Under Article 226, writs can be
    issued to “any person or authority”. It can be issued “for the
    enforcement of any of the fundamental rights and for any other
    purpose.

    *** *** *** ***

    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 Art. 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.”

    16. From the afore-quoted legal position, it appears that

    in a case where the rights sought to be enforced are purely of a

    private character, the writ petition would not lie. Thus, the

    guiding factor is the nature of duty imposed upon the person

    or body against whom a writ is being sought. If the nature of

    duty imposed on a body is public in nature, it is amenable to

    writ jurisdiction under Article 226 of the Constitution of India

    SWP No. 908/1988 Page 11 of 14
    2026:JKLHC-JMU:797

    but if the rights sought to be enforced are purely of a private

    character, mandamus cannot be issued against such body.

    17. The position has been clarified by the Supreme

    Court in the case of Binni Ltd & Anr Vs. Sadasivan and Ors

    (2005) 6 SCC 657 in the following words:

    “32. Applying these principles, it can very well be said
    that a writ of mandamus can be issued against a private
    body which is not a State within the meaning of Article
    12
    of the Constitution and such body is amenable to
    the jurisdiction under Article 226 of the Constitution
    and the High Court under Article 226 of the
    Constitution can exercise judicial review of the action
    challenged by a party. But there must be a public law
    element and it cannot be exercised to enforce purely
    private contracts entered into between the parties.”

    18. Thus, it is clear that while a body like the

    respondent-Board, which does not qualify to be a State within

    the meaning of Article 12 of the Constitution of India, is not

    amenable to writ jurisdiction of the High Court in the matters

    relating to enforcement of fundamental rights but it is certainly

    amenable to the writ jurisdiction in other matters, which have

    element of any public law. However, a writ would not lie

    against the respondent-Board in respect of an action, which is

    essentially of a private character.

    19. Turning to the facts of the present case, the

    petitioner is challenging his termination from service. The

    impugned action of the respondent-Board does not in any

    SWP No. 908/1988 Page 12 of 14
    2026:JKLHC-JMU:797

    manner reflect any public element. The petitioner, through the

    medium of the present petition, is only seeking enforcement of

    his rights under a contract of service executed by him with the

    respondent-Board, which is purely private in character lacking

    any public law element.

    20. A coordinate Bench of this Court in the case of

    Showkat Ahmad Rather & Ors Vs Government of J&K & ors

    [WP(C) No. 2197/2021 decided on 11.10.2022] has, after

    discussing the law on the subject, held that in the absence of

    violation of statutory provision or breach of public duty by a

    body or person, writ petition for enforcement of a private

    contract of service is not maintainable. In the face of this legal

    position, the present writ petition filed by the petitioner for

    challenging his disengagement from service is not

    maintainable.

    21. Even if it is assumed that the present writ petition

    is maintainable still then the petitioner does not have a case

    on merits as well. A perusal of the impugned order of

    disengagement would reveal that the petitioner has been

    disengaged along with two more employees as their services

    were no more required by the Board. The impugned order

    does not cast any stigma on the petitioner and it is not

    punitive in nature. Admittedly, the engagement of the

    petitioner as Pujari with the respondent-Board was purely on

    adhoc basis. An adhoc appointee has no vested right to the

    SWP No. 908/1988 Page 13 of 14
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    post against, which he has been appointed. Employment of an

    adhoc appointee ends the moment the purpose or term for

    which such an employee was hired comes to an end. The

    respondents have clearly indicated in the impugned order that

    services of the petitioner along with two more employees are no

    more required by the respondent-Board. The petitioner does

    not have a right to continue on the post having regard to the

    fact that nature of his employment is purely adhoc. He,

    therefore, cannot seek an order for continuation in service

    against the respondents.

    22. For what has been discussed hereinbefore, the writ

    petition lacks merit and is, accordingly, dismissed.

    (SANJAY DHAR)
    JUDGE
    JAMMU
    12.03.2026
    Naresh/Secy.

    Whether the judgment is speaking: Yes

    Whether the judgment is reportable: Yes

    SWP No. 908/1988 Page 14 of 14



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