Gauhati High Court
Page No.# 1/29 vs The Assam Royal Global University on 17 March, 2026
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GAHC010268132025
2026:GAU-AS:4392
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7101/2025
ANJUMAN ARA BEGUM
D/O-LATE AYUB ALI, R.O -FLAT NO 1B, DALIMI RESIDENCY,
GHORAMARA, BHETAPARA, SURUJMUKHI PATH, GUWAHATI, KAMRUP
Metro, PIN -781028
VERSUS
THE ASSAM ROYAL GLOBAL UNIVERSITY
REPRESENTED BY ITS REGISTRAR ADMINISTRATION, BETKUCHI, NH 37,
GUWAHATI 781035, ASSAM
BEFORE
HON'BLE MR. JUSTICE RAJESH MAZUMDAR
Advocate for the petitioner(s): Ms. U. Chatterjee.
Advocate for the respondent(s): Ms. R.S. Chowdhury.
Date of judgment : 17.03.2026
JUDGMENT AND ORDER (ORAL)
Heard Ms. U. Chatterjee, learned counsel for the petitioner. Also heard Ms.
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R.S. Chowdhury, learned counsel for the Assam Royal Global University.
2. Extensive arguments had been heard on the maintainability of this writ
petition on 10.02.2026. With the consent of parties, the initial issue is taken up
before the merits of the grievance raised by the petitioner are addressed by this
Court.
3. The assertions made in the writ petition and the documents annexed
thereto reflect that the petitioner had been appointed as an Associate Professor
in the Royal School of Law and Administration in the Assam Royal Global
University by an appointment letter dated 22.08.2022 issued by the Registrar of
the university. The salary of the petitioner was thereafter revised by an order
dated 28.11.2022 and her remuneration was further revised by another order
dated 04.10.2024, each of the letters/orders being issued by the Registrar of the
university.
4. During her service tenure, the petitioner had been recognized/approved as
a Ph.D Guide of the Assam Royal Global University as per the terms of sections
15 and 16 of the Royal Global University ordinance. The tenure of the guideship
would be valid till the petitioner remained associated as a regular faculty of the
Assam Royal Global University.
5. While the petitioner was performing her duties as a guide to different
research scholars, one of the scholars among some part-time scholars had made
a request to the Chairperson of the Departmental Research Committee (DRC) of
the university, asking for a change of guide. The issue was therefore taken up
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by the DRC and certain observations were made in the meeting held on
27.06.2025.
6. On 10.10.2025, the petitioner was called to the office of the Registrar
(Administration), where it was suggested that she was disassociated from the
university, having failed to meet the expectations of the competent authority.
Aggrieved by such a suggestion, the petitioner had submitted a request for
appointment to the office of the Vice-Chancellor of the university through her
personal email, since her official email had been blocked by the administration.
The reason for seeking the appointment by the petitioner, as reflected in the
email was that, a sudden discontinuance of her services with the university may
hamper the research and final submission of thesis by two PhD scholars for
whom the petitioner was acting as a guide.
By another communication made through email on 22.10.2025, the
petitioner requested the Chancellor of the university not to deprive her of the
opportunity to complete the guidance of two research scholars who were at
their final stage of submitting their thesis. By the aforesaid communication, the
petitioner had submitted that although she had lost her job in the university,
allowing her to successfully complete the guidance to the two PhD scholars
would help her find another job and also help her in her future career. The writ
petition has also referred to an email made by one of the PhD scholars to the
head of the department of law of the university to allow the petitioner to
continue to be the supervisor till the completion of her PhD.
7. It is the case which was projected in the writ petition that by another
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email dated 25.10.2025, the petitioner had again made a request to the
chairperson of the DRC, RSLA of the university to allow her to work in absentia
if required, to guide the two PhD scholars for submission and pre-submission
respectively at the earliest.
8. Thereafter, as per the assertions made in the writ petition, the impugned
order dated 25.10.2025 came to be issued by the Registrar (Administration) and
Director IQAC of the university, whereby the petitioner was informed that her
employment as associate professor in the RSLA, Assam Royal Global University
was terminated with effect from 17th of October, 2025. Certain allegations of
non-adherence to the expectation of the university, defiance and argumentative
conduct etc had been leveled upon the petitioner by the letter dated
25.10.2025. By the aforesaid letter, the petitioner was requested to complete all
necessary formalities at the earliest and to return any university property in her
possession.
9. The notice in this case was issued on 15.12.2025. On the university
putting in their appearance, an affidavit in opposition had been filed through the
Registrar of the university. The said affidavit was stated to be confined to the
preliminary objections being raised on behalf of the university to the extent of
the maintainability of the writ petition in its present form. The petitioner filed an
affidavit-in-reply and therefore the matter is taken up today to adjudicate as to
whether the writ petition in the present form is maintainable or not.
10. Ms. U. Chatterjee, learned counsel for the petitioner, during the course of
her arguments, had submitted that it is an undisputed fact that the university
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had been brought into existence by the Assam Royal Global University Act,
2013, read with Section 6 of the Assam Private Universities Act, 2007. The
university exercises academic, administrative and supervisory control over the
Royal School of Law and Administration, where the petitioner was employed as
an associate professor. The university is recognized by the University Grants
Commission (UGC) and is included in the list of universities which have been
given the authority to confer degrees under Section 22 of the UGC, 1956. The
learned counsel for the petitioner had argued that the nature of the functions
being performed by the university are public functions in the field of higher
education and such activities are regulated, supervised and funded through
statutory mechanisms.
11. It is the submission of the learned counsel for the petitioner that in view of
the above, the respondent university would be a state within the meaning of
Article 12 of the Constitution of India and therefore would be amenable to the
writ jurisdiction of this court. Elaborating her submissions, since it was the stand
of the respondent university that the writ in the present form is not
maintainable, the learned counsel for the petitioner has submitted that there
can be no doubt that the respondent university delivers a public function by
imparting education and it is a settled position in law that institutions, delivering
public function like that of imparting education, are amenable to the writ
jurisdiction under Article 226 of the Constitution of India. The learned counsel
for the petitioner has referred to several judgments of the Apex Court, namely,
Dr. Janet Jeyapaul v. SRM University & Ors. in Civil Appeal No. 14553
of 2015, decided on December 15, 2015; Roychan Abraham v. State of
U.P. and Others in Writ-A No.63708 of 2014 Decided on February 26,
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2019; K. Krishnamacharyulu and Ors. v. Sri Venkateshwara Hindu
College of Engineering and Anr. in Civil Appeal No. 1774 of 1997,
decided on February 21, 1997; Army Welfare Education Society New
Delhi v. Sunil Kumar Sharma & Ors. etc. in Civil Appeal Nos. 7260-
7264 of 2024 (arising out of S.L.P. (Civil) Nos. 3133-3137 of 2021); St.
Mary’s Education Society & Anr. v. Rajendra Prasad Bhargava & Ors. in
Civil Appeal No. 5789 OF 2022; Indira Gandhi Technological and
Medical Sciences University v. State Information Commission in
WP(C) No. 347 (AP)/2014; Andi Mukta Sadguru v. V.R. Rudani in 14
(1989) 2 SCC 691; Zee Telefilms Ltd. v. Union of India in (2005) 4 SCC
649; DK Yadav v. JMA Industries Ltd. in (1992) 3 SCC 126 and Ayesha
Jain v. Amity University, Noida & ors. in 2025 SCC OnLine SC 2557.
12. The learned counsel for the petitioner submitted that it will not lie in the
mouth of the respondents to characterize themselves as a purely private body
while simultaneously enjoying the UGC regulation, statutory dignitary powers
and regulatory oversight. It is her further argument that since the respondent
university is admittedly recognized by the University Grants Commission and is
included in the official list of the universities maintained and published by the
UGC on its website, the said recognition cannot be said to be symbolic or
incidental but has to be necessarily accompanied by a continuous statutory
oversight, expert committee inspection, mandatory compliance with the UGC
regulations governing appointments, service conditions, research supervision,
PhD courses and academic standards and therefore, it has to necessarily follow
that there is a pervasive control of statutory authorities on the respondent
university and therefore the respondent university would be amenable to the
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writ jurisdiction of this Court. By referring to the case of Roychan Abraham v.
State of Uttar Pradesh and others reported in (2019) SCC OnLine 3935,
the learned counsel has submitted that the test of direct nexus between the act
complained of and the discharge of a public duty was the cornerstone for
invoking the extraordinary writ jurisdiction under Article 226 of the Constitution
of India. The learned counsel submits that since the university was imparting
education, which was primarily a state function, a private university like the
respondent would also be a necessary ancillary link in execution of the state
function while discharging the public duty.
13. The learned counsel for the petitioner has submitted that the termination
of the petitioner, who was a PhD supervisor, directly interfered with the
statutory research supervision, academic continuity and the student’s
compliance with the UGC regulations, thereby establishing a clear public law
element in the function being discharged by the university and the act of the
university terminating the petitioner in the manner in which it has been done
would be required to be reviewed by this court while exercising its extraordinary
writ jurisdiction.
14. By referring to the judgment of the Apex Court in Andi Mukta Sadguru
v. V.R. Rudani reported in (1989) 2 SCC 691, the learned counsel for the
petitioner submitted that appropriate writ may issue against any person and
authority performing public duty or public function, irrespective of State
ownership. She therefore submits that the stand of the respondent authorities in
their affidavit-in-opposition, to the extent that in the absence of state funding or
ownership, the respondent university would not be amenable to the writ
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jurisdiction, is only misconceived. The learned counsel for the petitioner has
referred to the case of the Dr. Janet Jeyapaul v. SRM University & Ors.
reported in (2015) 16 SCC 530. She has asserted that the Apex Court has
held that an institution recognized under the UGC framework and discharging
the public function of imparting higher education would be amenable to the writ
jurisdiction.
15. By referring to the judgment of the Supreme court in the case of K.
Krishnamacharyulu and Ors. v. Sri Venkateshwara Hindu College of
Engineering reported in (1997) 3 SCC 571, the learned counsel has
submitted that it is a settled law, wherein the institution imparts education
which is a constitutional and public function, teachers acquired an element of
public interest in the performance of their duties and therefore a writ would be
maintainable even against private unaided institution. By emphasizing on
violation of the UGC norms, the learned counsel for the petitioner has submitted
that her guideship, which was governed primarily by UGC regulation, could not
have been terminated in the manner it has been done. She has argued that
when the norms of the UGC have been violated, not only while terminating the
services of the petitioner but resultantly terminating her guideship for at least
two scholars, the actions of the respondent would have to be evaluated by this
Court in exercise of powers of the Article 226 of the Constitution of India. It is
the submission of the learned counsel for the petitioner that the sudden and
arbitrary termination of the petitioner has disrupted ongoing research under the
functioning of the SRC and DRC and the academic continuity, rendering the
action disproportionate, unfair and contrary to all statutory institutional
framework.
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16. The learned counsel for the petitioner has further argued that the very fact
of issuing a post facto termination order would demonstrate that the respondent
have acted in malice and their actions are ultra vires and unlawful and in
violation of the UGC norms. The learned counsel for the petitioner has
submitted that the present case is not one relating to enforcing of a private
contract but the present petition challenges the disciplinary action which was
taken through breach of UGC mandated procedures, the prescribed standard of
proof and the denial of cooperation in the public interest to preserve academic
institutional accountability.
17. The learned counsel for the petitioner relied on the judgment of the Apex
Court in St. Mary’s Education Society vs. Rajendra Prasad Bhargava
reported in (2023) 4 SCC 498 and has submitted that the grievance relating
to the termination from service involves a significant public law element. It was
contended that the present dispute is not a mere service matter arising out of a
private contract of employment with a private employer. Rather, it pertains to
the respondent university’s obligation to adhere to binding regulations laid down
by the UGC.
18. The learned counsel for the petitioner argues that the issue concerns
compliance with mandatory regulatory standards governing PhD supervision,
academic governance, grievance redressal, and disciplinary safeguards.
Therefore, the dispute transcends a purely private employment matter and
enters the realm of public law, as it involves alleged violations of statutory and
regulatory obligations imposed on the university in the administration of higher
education and research supervision.
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19. Ms. R.S. Chowdhury, learned counsel for the Assam Royal Global University
has submitted that it may be true that the university had been brought into
existence by a statute, however, the core issue to be addressed by this court is
whether the act complained of by the petitioner would fall under the realm of
“discharge of a public function” by the university concerned. The learned
counsel for the respondent has submitted that it is settled law, as reflected in
the judgment of P. K. Biswas v. Indian Institute of Chemical Biology
reported in (2002) 5 SCC 111 and other similar judgments, that the
determinative test for bringing an entity within the ambit of Article 12 is the
existence of deep and pervasive state control, particularly in the matters of
funding, administration and functional autonomy. According to the learned
counsel for the respondent, mere regulatory control, statutory recognition or
incorporation by statute would not be sufficient to clothe a body with the
character of a state as enunciated in Article 12 of the Constitution of India. It
has been submitted that absence of governmental funding or functional
dominance would place the respondent university beyond the definition of state
as enunciated in Article 12 of the Constitution of India, and therefore, the
university would not be amenable to the writ jurisdiction of this court. She has
also referred to the absence of deep and pervasive government control across
the domains of finance, function and administration of the university.
20. The learned counsel for the respondent has further submitted that the
university is governed by its first statutes, framed under Section 6, read with
Section 30 of the Assam Private Universities Act, 2007, and therefore, the
university functions within its statutory framework, independent of state control.
The service conditions of its employees are regulated exclusively by the Act of
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2013, without any interference of any of the entities which can be said to be
within the purview of the definition of state. She has submitted that mere
legislative incorporation does not equate ownership by the state, but is only a
statutory prerequisite for the establishment of the university. It has been
submitted on behalf of the respondents that the sponsoring body of the
university is a society duly registered under the Society’s Registration Act.
Therefore, the university bears a completely private character. The university is
fully financed as required under the relevant Act. Addressing the argument of
the petitioner that the termination of her service involved a public law element,
the learned counsel for the respondent has placed reliance on the judgment of
the Apex Court in St. Mary’s Education Society and Another (Supra),
which had also been relied upon by the learned counsel for the petitioner. By
referring to the observations made at paragraph 54 of the judgment in St.
Mary‘s (Supra), the learned counsel has submitted that it has been specifically
held that in the cases of retirement and termination, no public law element is
involved. The learned counsel for the respondent has further submitted that
mere recognition by the UGC does not in any manner render the respondent
university to be a state or other authority within the meaning of Article 12 of the
Constitution of India and such recognition is only for the purposes of
recognizing the degrees which are conferred by the recognized universities
within the territory of India.
21. The learned counsel for the respondent has further submitted that the
relationship between the petitioner and the respondent university was purely
contractual in nature, governed exclusively by the terms and conditions of
appointment, which were elucidated in the contract of employment and which
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were also governed by the applicable internal statutes and regulations of the
university. The learned counsel for the respondent has also referred to the
judgment rendered by the Apex Court in Army Welfare Education Society,
New Delhi v. Sunil Kumar Sharma and others reported in (2024) 16 SCC
598. At Paragraph 57 of the judgment, the Apex Court held as follows:
“57. In view of the aforesaid, nothing more is required to be discussed in the
present appeals. We are of the view that the High Court committed an egregious
error in entertaining the writ petition. filed by the respondents herein holding that
the appellant Society is “State” within Article 12 of the Constitution. Undoubtedly,
the school run by the appellant Society imparts education. Imparting education
involves public duty and therefore a public law element could also be said to be
involved. However, the relationship between the respondents herein and the
appellant Society is that of an employee and a private employer arising out of a
private contract. If there is a breach of a covenant of a private contract, the same
does not touch any public law element. The school cannot be said to be
discharging any public duty in connection with the employment of the
respondents.”
22. The learned counsel for the respondent has referred to the judgments
rendered by the Apex Court in Ramkrishna Mission and Another v. Kago
Kunya reported in (2019) 16 SCC 298 and VST Industries Ltd. v.
Workers’ Union reported in (2001) 1 SCC 298 to assert that the aforesaid
judgments have affirmed the principle that contracts of purely private nature
would not be subject to writ jurisdiction merely by reason of the fact that they
were structured by statutory provisions. The learned counsel for the respondent
has accordingly prayed for dismissal of the writ petition.
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23. This Court has heard the learned counsel appearing for the parties and has
also gone through the different judgments relied upon by the parties. This Court
notices that in several cases, the issue as to whether a particular entity could be
termed as a state within the definition under Article 12 of the Constitution of
India and further, whether any action by an admitted private entity would have
an element of public law involved has been discussed. The Apex Court in this
regard has answered a specific question as to whether a service dispute, being
a dispute of the private realm involving a private educational institution and its
employee, can be adjudicated in a writ petition filed under Article 226 of the
Constitution of India in the case of St. Mary’s Educational Society and
Another vs. Rajendra Prasad Bhargava and Others (Supra). The facts as
reflected in that case was that a private unaided educational institution, as
appellant, had approached the Apex Court being aggrieved by an order passed
by the Division Bench of the High Court when it was held that the challenge to
the order of termination of the respondent in the appeal before the Supreme
Court was maintainable under Article 226 of the Constitution of India.
24. The respondent before the Apex Court had challenged the order of
termination on various grounds before the Single Bench of the High Court and
the Learned Single Judge had upheld the preliminary objection raised by the
private unaided society and rejected the writ application as not being
maintainable. The Learned Single Judge in that case had referred to the
judgment of the Apex Court in K. Krishnamacharyulu and Ors. v. Sri
Venkateshwara Hindu College of Engineering and Anr. reported in
(1997) 3 SCC 571. The respondent in the appeal before the Supreme Court
was a member of the non-teaching staff of the private unaided institution. The
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Apex Court, while deciding the issue, had noticed the total absence of
governmental control over the functioning and administration of the school and
had also noted that the school was affiliated to the CBSE and was thus
governed by its rules and regulations. Having further noticed that the appellant
society and the school were absolutely private institutions without any aid or
control of either the government or any instrumentality of the government, it
was held that the institution was not a state within the meaning of Article 12 of
the Constitution of India. While deciding the lis, the Apex Court had held that
while the unaided private institution may be held to be performing a public duty,
yet all its decisions would not be subject to judicial review. It was only those
decisions which had a public element therein that could be reviewed judicially
under the writ jurisdiction. It was held that if the action challenged does not
have a public element, a writ of mandamus cannot be issued as the action could
be said to be essentially of a private nature. Referring to the contention
canvassed by the terminated employee that the writ petition was maintainable if
the Committee of Management controlling the effects of the institution violated
any rule by law laid down by the CBSE, the Apex Court had held that the mere
fact that the Board grants recognition to the institution on certain terms and
conditions itself would not confer any enforceable right on any person as
against the Committee of Management. The Apex Court held to the extent that
where a teacher or non-teaching staff challenges the action of a Committee of
Management on the ground that it has violated the terms of contract or the
rules of the affiliation by laws etc., the appropriate remedy would be to
approach the CBSE or to take such other remedy available under the law. The
Apex Court had noted that the appellant institution discharged a public duty to
the extent of imparting education which was a fundamental right of the citizen.
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A very thin line of difference can be drawn here to the extent that while in the
case of St. Mary’s, the matter related to a school which was imparting
education at the school level, which has been held to be a fundamental right
under the Right to Education Act, access to higher education has not yet been
defined as a fundamental right for the citizens of India.
25. By referring to the case of Apollo Tyres Ltd. v. C.P. Sebastian reported
in (2009) 14 SCC 360, the Apex Court observed that confirmation,
suspension, transfer, termination etc. of an employee was a contract of personal
service. The Apex Court has also discussed the judgments rendered in the cases
of K. K. Saksena v. International Commission on Irrigation and
Drainage and others reported in (2015) 4 SCC 670, Shri Anadi Mukta
Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav
Smarak Trust & Ors. v. V.R. Rudani & Ors. reported in (1989) 2 SCC 691,
G. Basi Reddy v. International Crops Research Institute & Anr.,
reported in (2003) 4 SCC 225, Pragya Tools Corporation v. Shri C.A.
Imanual, reported in (1969) 1 SCC 585 and Federal Bank Limited v.
Sagar Thomas, reported in (2003) 10 SCC 733. Reference also drawn to the
case of Janet Jeyapaul v. SRM University and others reported in (2015)
13 SCALE 622 to notice that when a private body exercises public function,
even if it is not a state, the aggrieved person has a remedy not only under the
ordinary law but also by way of a writ petition under Article 226 of the
Constitution of India. It was also held that a private authority may be
discharging a public function and that the decisions to be corrected or enforced
must be in the discharge of a public function. At Paragraph Nos. 41 and 42 of
the judgment, the Apex Court held as follows:
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“41. In the background of the above legal position, it can be safely concluded that
power of judicial review under Article 226 of the Constitution of India can be
exercised by the High Court even if the body against which an action is sought is
not State or an Authority or an Instrumentality of the State but there must be a
public element in the action complained of.
42. A reading of the above extract shows that the decision sought to be corrected
or enforced must be in the discharge of a public function. No doubt, the aims and
objective of the appellant No. 1 herein is to impart education, which is a public
function. However, the issue herein is with regard to the termination of service of
the respondent No. 1, which is basically a service contract. A body is said to be
performing a public function when it seeks to achieve some collective benefit for
the public or a section of the public and is accepted by the public or that section of
the public as having authority to do so.”
26. The Apex Court had then referred to the decision in the case of Vidya
Ram Misra v. The Managing Committee Shri Joy Narain College ,
reported in (1972) 1 SCC 623, wherein it was held as follows:
“12. Whereas in the case of Prabhakar Ramakrishna Jody v. A.L. Pande
(1965) 2 SCR 713, the terms and conditions of service embodied in Clause 8(vi)(a)
of the ‘College Code’ had the force of law apart from the contract and conferred
rights on the appellant there, here the terms and conditions mentioned in Statute
151 have no efficacy, unless they are incorporated in a contract. Therefore,
appellant cannot find a cause of action on any breach of the law but only on the
breach of the contract. As already indicated, Statute 151 does not lay down any
procedure for removal of a teacher to be incorporated in the contract. So, Clause 5
of the contract can, in no event, have even statutory flavour and for its breach,
the appellant’s remedy lay elsewhere.
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13. Besides, in order that the third exception to the general rule that no writ
will lie to quash an order terminating a contract of service, albeit illegally, as stated
in S.R Tewari v. District Board, Agra, (1964) 3 SCR 55: AIR 1964 SC 1680, might
apply, it is necessary that the order must be the order of a statutory body acting in
breach of a mandatory obligation imposed by a statute. The college, or the
Managing Committee in question, is not a statutory body and so the argument of
Mr. Setalvad that the case in hand will fall under the third exception cannot be
accepted. The contention of counsel that this Court has sub-silentio sanctioned the
issue of a writ under Article 226 to quash an order terminating services of a
teacher passed by a college similarly situate in Prabhakar Ramakrishna Jodh
(supra), and, therefore, the fact that the college or the Managing Committee was
not a statutory body was no hindrance to the High Court issuing the writ prayed
for by the appellant has no merit as this Court expressly stated in the judgment
that no such contention was raised in the High Court and so it cannot be allowed
to be raised in this Court.”
27. The Apex Court had thereafter held that in the absence of statutory
provision governing the services of the employees of the private and unaided
institution, the service of the respondent no.1 in that case was purely
contractual. It held that the contract of personal service cannot be enforced
specifically. The respondent no.1 was therefore held to be disentitled from
finding a cause of action based not on a breach of the law but only on a breach
of the contract. It was held that the respondent’s remedy in that case would lie
elsewhere. Referring to the case of Marwari Balika Vidhyalaya v. Asha
Shrivastaga, reported in (2020) 14 SCC 449, the Apex Court held that in the
said case the removal of the teacher from service was subject to the approval of
the State Government and therefore in that case the writ petition was held to be
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maintainable. It was also noticed that the school in the case of Marwari
Balika Vidhyalaya(supra) was receiving grant in aid to the extent of the
Dearness Allowance and that all appointments and removal were required to be
approved by the District Inspector of School and if any action was taken
towards such mandatory provisions, the same could not come within the realm
of the private element. The Apex Court had also held that merely because the
State Government had regulatory powers, the same by itself would not confer
the status of a State upon the school nor put any such obligations upon it which
may be enforced through the issue of writ under Article 226 of the Constitution
of India. The final conclusions were summed up at paragraph No. 68 of the
judgment which is quoted herein below for easy reference:
68. We may sum up our final conclusions as under:-
(a)An application under Article 226 of the Constitution is maintainable against a
person or a body discharging public duties or public functions. The public duty cast
may be either statutory or otherwise and where it is otherwise, the body or the
person must be shown to owe that duty or obligation to the public involving the
public law element. Similarly, for ascertaining the discharge of public function, it
must be established that the body or the person was seeking to achieve the same
for the collective benefit of the public or a section of it and the authority to do so
must be accepted by the public.
(b)Even if it be assumed that an educational institution is imparting public duty, the
act complained of must have a direct nexus with the discharge of public duty. It is
indisputably a public law action which confers a right upon the aggrieved to invoke
the extraordinary writ jurisdiction under Article 226 for a prerogative writ.
Individual wrongs or breach of mutual contracts without having any public element
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as its integral part cannot be rectified through a writ petition under Article 226.
Wherever Courts have intervened in their exercise of jurisdiction under Article 226,
either the service conditions were regulated by the statutory provisions or the
employer had the status of “State” within the expansive definition under Article 12
or it was found that the action complained of has a public law element.
(c)It must be consequently held that while a body may be discharging a public
function or performing a public duty and thus its actions becoming amenable to
judicial review by a Constitutional Court, its employees would not have the right to
invoke the powers of the High Court conferred by Article 226 in respect of matter
relating to service where they are not governed or controlled by the statutory
provisions. An educational institution may perform myriad functions touching
various facets of public life and in the societal sphere. While such of those
functions as would fall within the domain of a “public function” or “public duty” be
undisputedly open to challenge and scrutiny under Article 226 of the Constitution,
the actions or decisions taken solely within the confines of an ordinary contract of
service, having no statutory force or backing, cannot be recognised as being
amenable to challenge under Article 226 of the Constitution. In the absence of the
service conditions being controlled or governed by statutory provisions, the matter
would remain in the realm of an ordinary contract of service.
(d) Even if it be perceived that imparting education by private unaided school is a
public duty within the expanded expression of the term, an employee of a non-
teaching staff engaged by the school for the purpose of its administration or
internal management is only an agency created by it. It is immaterial whether “A”
or “B” is employed by the school to discharge that duty. In any case, the terms of
employment of contract between a school and non-teaching staff cannot and
should not be construed to be an inseparable part of the obligation to impart
education. This is particularly in respect to the disciplinary proceedings that may be
Initiated against a particular employee. It is only where the removal of an
Page No.# 20/29
employee of non-teaching staff is regulated by some statutory provisions, its
violation by the employer in contravention of law may be interfered with by the
court. But such interference will be on the ground of breach of law and not on the
basis of interference in discharge of public duty.
(e) From the pleadings in the original writ petition, it is apparent that no element
of any public law is agitated or otherwise made out. In other words, the action
challenged has no public element and writ of mandamus cannot be issued as the
action was essentially of a private character.
28. To evaluate the stand of the petitioner, this Court finds it necessary to refer
to the prayers made in the writ petition which are as follows:
In the premises aforesaid, it is most respectfully prayed that this Hon’ble
Court may be pleased to:
a. Quash impugned Termination Order dated 25.10.2025 and direct the
Respondent University to reinstate the Petitioner with continuity of service, release
of all salary dues, arrears and consequential benefits with interest, and such
further reliefs as this Hon’ble Court may deem appropriate for unlawful and mala
fide termination.
b. Grant exemplary compensation worth at least 5 crores or any other
appropriate amount to the Petitioner in the for the irreversible reputational harm,
professional injury, loss of livelihood, cumulative copyright violations and mental
agony caused by the arbitrary administrative action of the Respondent.
c. Issue appropriate interim and final directions restraining the Respondent
University from utilising, submitting or appropriating any part of the Petitioner’s
academic work, research material or jointly-owned thesis content through any
Page No.# 21/29other supervisor, and to protect the Petitioner’s intellectual property rights under
the UGC Regulations and the RGU Ph.D. Regulation, 2024.
d. Issue appropriate directions to the Respondents to bear the costs of the
present litigation, as the unlawful termination of the Petitioner’s services has
compelled the Petitioner to approach this Hon’ble Court.
e. Pass any further orders that this Hon’ble Court may deem fit in the
interests of justice.
29. The first prayer is for quashing of the termination order, the second is for
compensation, the third prayer is for restraining the university from utilizing,
submitting or appropriating any part of the petitioner’s academic work research
material or jointly their own thesis through any other supervisor and to protect
the petitioner’s intellectual property rights, the fourth being a direction to the
respondents to bear the cost of the litigation and fifth being a general prayer to
pass such orders as it deem fit in the interest of justice. If the prayers made are
granted, relief would be given to the petitioner. To evaluate the cause of action
of the petitioner vis-Ã -vis the submission that it carries an element of public
function, the assertions made in the writ petition have to be perused. From a
perusal, this Court finds that the petitioner has emphasized on the discharge of
education by the university to be a public function but there is no reference that
the service condition of the petitioner, governed by the rules of the university,
had any element of public function attached to it.
30. Since this Court has extensively dealt with the observations of the Apex
Court in the case of St. Mary‘s (supra), it is found relevant to refer to those
Page No.# 22/29
judgments also, where the judgment of St. Mary’s had been discussed and
understood.
31. In the case of Mridula Konwar Hazarika vs. the Director of
Secondary Education, Assam and 3 ors. (WP(C) No.3111/2022), this
Court held as follows:
19. In paragraph 75.1 of its pronouncement, the Hon’ble Supreme Court
provided that an application under Article 226 of the Constitution of India is
maintainable against a person or a body discharging public duty or functions.
But at the same time, it is circumscribed to an extent that for ascertaining
the discharge of public functions, it must be established that the body or the
person was seeking to achieve the same for collective benefit of the public or
a section of it and the authority to do so must be accepted by the public.
20. From the proposition of the Hon’ble Supreme Court as provided in
paragraph 75.1, we answer the first question framed for adjudication as to
whether a writ petition would be maintainable against the respondent
Montfort High School and accordingly answer that the respondent Montfort
High School having discharging a public duty or function, a writ petition
otherwise would be maintainable.
21. But having said so, such maintainability would also be circumscribed to
the extent that it also must be established that for the discharge of the
public functioning the body or the person was seeking to achieve a collective
benefit for the public or a section of it and the authority to do so must be
accepted by the public. To ascertain the same, we take note as to what issue
is raised in this writ petition and what action of the respondent Montfort
High School is being assailed.
22. As noted above, a communication dated 04.04.2022is assailed in this
writ petition by which the service of the petitioner had been discontinued.
Further, we also take note of the proposition laid down by the Hon’ble
Page No.# 23/29
Supreme Court in paragraph 75.2 and 75.3 of its pronouncement in St.
Mary’s Education Society (supra). In paragraph 75.2, it is provided that even
if it is assumed that an educational institution is imparting public duty, the
act complained of must have a direct nexus with the discharge of public duty
and in paragraph 75.3 it is provided that it must be consequently held that
while a body may be discharging a public function or performing a public
duty and thus its actions becoming amenable to judicial review by a
constitutional court, its employees would not have the right to invoke the
powers of the High Court conferred by Article 226 in respect of matter
relating to service where they are not governed or controlled by the
statutory provisions. In the said paragraph, it had further been held that an
educational institution may perform myriad functions touching various facets
of public life and in the societal sphere. While such of those functions as
would fall within the domain of a public function or public duty be
undisputedly open to challenge and scrutiny under Article 226 of the
Constitution, but the actions or decisions taken solely within the confines of
an ordinary contract of service, having no statutory force or backing, cannot
be recognized as being amenable to challenge under Article 226 of the
Constitution and in the absence of such conditions being controlled or
governed by statutory provisions, the matter would remain in the realm of
an ordinary contract of service.
23. In the instant case, it is noticed that the petitioner was appointed in the
respondent Montfort High School pursuant to a contract between the parties
and the Montfort High School being not a non-government educational
institution within the meaning of section 2(xv) of the Act of 2006, the service
conditions of the petitioner pursuant to such contract arrangement would
have to be accepted to be not covered by any statutory provision.
24. A reading of the communication dated 04.04.2022 by which the service
of the petitioner had been discontinued makes it further discernible that it is
an arrangement between the respondent Montfort High School and the
discontinuance of service of the petitioner because of the reasons stated
therein, which appears to be more an internal matter between the
respondent school and the petitioner would definitely be within the confines
of an ordinary contract of a service having no statutory force or backing.
25. Accordingly, the other proposition laid down in paragraph 75.1 of the
pronouncement of the Hon’ble Supreme Court in St. Mary’s Education
Society (supra) circumscribing the maintainability of a petition under Article
226 of the Constitution of India read with the provision in paragraph 75.2
and 75.3 of the said judgment leaves the Court to arrive at a conclusion that
although the respondent Montfort High School may be subjected to a writ
jurisdiction under Article 226 of the Constitution by virtue of being
discharging public duties or public functions, but in respect of the impugned
communication dated 04.04.2022 by which the service of the petitioner was
Page No.# 24/29
discontinued being within the realm of a ordinary contract of service, a writ
petition against the said communication of 04.04.2022 would not be
maintainable under Article 226 of the Constitution of India.
26. In view of such conclusion, the writ petition stands dismissed. The
interim order passed earlier stands vacated.
32. In another case titled Manabendra Kumar Sharma vs. BCCI and 3
ors. in WP(C) No.5220/2021. This Court, while understanding the impact of
the judgment rendered in St. Mary’s, held as follows:
“26. The above quoted paragraphs make it succinctly clear that even if an
institution or body is imparting public duty, the act complained of must have
a direct nexus with the discharge of public duty. Individual wrongs or breach
of mutual contracts without having any public element as its integral part
cannot be rectified through a writ petition under Article 226. It was further
opined that while a body may be discharging a public function or performing
a public duty and thus its actions becoming amenable to judicial review by a
Constitutional Court, its employees would not have the right to invoke the
powers of the High Court conferred by Article 226 of the Constitution in
respect of matter relating to service where they are not governed or
controlled by the statutory provisions. It was clarified that an educational
institution may perform myriad functions touching various facets of public life
and in the societal sphere and such functions would fall within the domain of
a “public function” or “public duty” and open to challenge under Article 226
of the Constitution But, the actions or decisions taken solely within the
confines of an ordinary contract of service, having no statutory force or
backing, cannot be recognized as being amenable to challenge under Article
226 of the Constitution.
27. Therefore, from the judgments which have been referred herein above, it
would clearly show that private bodies which are not State within the
meaning of Article 12 of the Constitution, but discharging public duty and
Page No.# 25/29public functions would be amenable to the jurisdiction of the Article 226 of
the Constitution so far it relates to discharge of the public duty and public
functions by the said private body. However, if dispute arises relating to
individual wrongs or breach of mutual contracts not being an integral part of
the public duty and public functions performed by the private body would
not be amenable to the jurisdiction under Article 226 of the Constitution.
28. In the backdrop of the above analysis of the settled law and applying
the same to the facts of the instant case, it would be seen that the
respondent ACA purportedly issued work orders in favour of the petitioners
for carrying out certain works in a Stadium belonging to the respondent
Assam Cricket Association. Some of the petitioners received some amounts
against those purported work orders and some did not for which the instant
three writ petitions have been filed.
29. From a perusal of the pleadings as well as the documents enclosed to
the writ petitions, there is no element of any public law requiring
adjudication being made out. The allegations primarily relate to the breach
of the contract on the part of the respondent ACA in not making payment of
the dues to the petitioners. The said grievances of the petitioners at best
would be individual wrongs or breach of mutual contract entered into
between the petitioners and the respondent ACA having no public element
as its integral part and as such it is the opinion of this Court that the three
writ petitions are not maintainable under Article 226 of the Constitution.”
33. In the case of M/S New Age Petcoke Private Limited vs. the
Numaligarh Refinery Limited and 2 ors. (WP(C) No.2662/2023), this
Court has held as under :
31. Since the Respondent authorities have seriously raised the issue of
Page No.# 26/29maintainability of the writ petitions on the ground that the contract being
private and not statutory contract, no writ would lie, this Court would first
proceed to consider the same and refer to the case laws.
32. It is elementary that under Article 226 of the constitution of India, the
High Court has jurisdiction to try issues both of fact and law. Exercise of
the jurisdiction is discretionary, but the discretion must be exercised on
sound judicial principles. The Court is not deprived of its jurisdiction to
entertain a petition under Article 226 merely because in considering the
petitioner’s right to relief questions of fact may fall to be determined.
When the petition raises questions of fact of a complex nature, which may
for their determination require oral evidence to be taken, and on that
account the dispute may not appropriately be tried in a writ petition and
Court may decline to entertain a petition. Rejection of a petition in limine
will normally be justified, where the High Court is of the view that the
petition is frivolous or because of the nature of the claim made dispute
sought to be agitated, or that the petition against the party against whom
relief is claimed is not maintainable or that the dispute raised thereby is
such that it would be inappropriate to try it in the writ jurisdiction.
33. The writ jurisdiction is a public law remedy. A matter, which lies
entirely within a private realm of affairs of a public body, may not lend
itself for being dealt with under the writ jurisdiction.
34. The Hon’ble Supreme Court has time and again held that at the stage
of entering into a contract, the State acts purely in its executive capacity
and is bound by the obligations of fairness. The state in its executive
capacity, even in the contractual field, is under obligation to act fairly and
cannot act discriminatory. Even in cases where the question is of choice or
consideration of competing claims before entering into the field of
contract, facts have to be investigated and found before the question of a
violation of Article 14 could arise. If those facts are disputed and require
assessment of evidence the correctness of which can only be tested
Page No.# 27/29
satisfactorily by taking detailed evidence, involving examination and cross-
examination of witnesses, the case could not be conveniently or
satisfactorily decided in proceedings under Article 226 of the Constitution.
In such cases the court can direct the aggrieved party to resort to
alternate remedy of civil suit etc. Writ jurisdiction of High Court under
Article 226 was not intended to facilitate avoidance of obligation voluntarily
incurred. Writ petition is not maintainable to avoid contractual obligation of
commercial difficulty, inconvenience or hardship in performance of the
conditions agreed to in the contract can provide no justification in not
complying with the terms of contract which the parties had accepted with
open eyes. Ordinarily, where a breach of contract is complained of, the
party complaining of such breach may sue for specific performance of the
contract, if contract is capable of being specifically performed. Otherwise,
the party may sue for damages.
35. Writ can be issued where there is executive action unsupported by law
or even in respect of a corporation there is denial of equality before law or
equal protection of law or if can be shown that action of the public
authorities is without giving any hearing and violation of principles of
natural justice after holding that action could not have been taken without
observing principles of natural justice. If the contract between private
party and the State/ instrumentality and/or agency of State is under the
realm of a private law and there is no element of public law, the normal
course for the aggrieved party, is to invoke the remedies provided under
ordinary civil law rather than approaching the High Court under Article 226
of the Constitution and invoking its extraordinary jurisdiction.
36. It has been held that the distinction between public law and private
law elements in the contract with the State is getting blurred. However, it
has not been totally obliterated and where the matter falls purely in the
private field of contract. Dichotomy between public law and private law,
rights and remedies would depend on the factual matrix of each case and
Page No.# 28/29
the distinction between public law remedies and private law, field cannot
be demarcated with precision. In fact, each case has to be examined, on
its facts, whether the contractual relations between the parties bear
insignia of public element. Once on the facts of a particular case it is found
that nature of the activity or controversy involves public law element, then
the matter can be examined by the High Court in writ petition under
Article 226 to see whether action of the State and/or instrumentality or
agency of the State is fair, just and equitable or that relevant factors are
taken into consideration and irrelevant factors have not gone into the
decision making process or that the decision is not arbitrary.
34. On the facts and circumstances of that case, this Court had held the writ
petition to be maintainable.
35. What is discernible from the aforesaid judgments is that whether a
particular function carried out by a private party could be termed to be a
discharge of public function depends on the facts and circumstances of each
case. In the present case, this Court finds that the petitioner had been
appointed in a private university under certain terms and conditions enunciated
in the order of appointment itself and her tenure of guideship was also limited
to the period till which she remained associated as a regular faculty of the
university. The termination of the petitioner being a private affair between the
university and the petitioner, this Court is of the opinion that the same would
not fall within the realm of discharge of a public function by the university so as
to require this Court to interfere or even to evaluate such action in exercise of
powers under Article 226 of the Constitution of India.
36. It is made clear that the dismissal of the present writ petition is not
Page No.# 29/29
maintainable in the present form.
37. The instant writ petition, being held to be not maintainable in law, is
accordingly dismissed.
38. No order as to cost.
JUDGE
Comparing Assistant
