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
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.
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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.
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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
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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
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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
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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.
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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:
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“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
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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,
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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, localSWP No. 908/1988 Page 10 of 14
2026:JKLHC-JMU:797authorities, 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
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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
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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
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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
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