Orissa High Court
Rahul Mahapatra vs State Of Odisha And Others on 9 July, 2026
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR W.P.(C) No.6501 of 2021
In the matter of an application under Articles 226 and 227
of the Constitution of India.
..................
Rahul Mahapatra .... Petitioner
-versus-
State of Odisha and Others .... Opposite Parties
For Petitioner : Mr. S.S. Tripathy, Advocate
For Opp. Parties : Mr. A. Tripathy, AGA
Mr. S.S. Das, Sr. Advocate
along with
Ms. S. Das, Advoate
(for O.P. No.3)
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
---------------------------------------------------------------------------------
Date of Hearing:14.05.2026 and Date of Judgment:09.07.2026
--------------------------------------------------------------------------------
Biraja Prasanna Satapathy, J.
1. Heard Mr. S.S. Tripathy, learned counsel
appearing for the petitioner, Mr. A. Tripathy, learned
Addl. Govt. Advocate for the State and Mr. S.S. Das,
// 2 //
learned Senior Counsel appearing along with Ms. S.
Das, learned counsel for the Opp. Party No.3.
2. Even though the present Writ Petition has been
filed inter alia challenging order dated 21.01.2021, so
passed by Opp. Party No.3 under Annexure-1, but
since a preliminary objection was raised by the learned
Senior Counsel appearing for the Opp. Party No.3, with
regard to maintainability of the Writ Petition against
Opp. Party No.3, the matter was heard at length on the
question of maintainability by this Court. Therefore,
prior to dealing with the matter on merit, this Court is
inclined to decide the question of maintainability of the
Writ Petition as against Opp. Party No.3.
3. Learned Senior Counsel appearing for Opp. Party
No.3, while raising the question of maintainability,
contended that Opp. Party No.3 though is a
Corporation, but it was incorporated for a Special
Purpose and registered as a Public Company, in terms
of the provisions contained under Section-3 of the
Page 2 of 60
// 3 //
Companies Act, 1956. Section 3 of the Act reads as
follows:-
“3. DEFINITIONS OF “COMPANY”, “EXISTING
COMPANY”, “PRIVATE COMPANY” AND “PUBLIC
COMPANY”
(1) In this Act, unless the context otherwise requires, the
expressions “company”, “existing company”, “private
company” and “public company”, shall, subject to the
provisions of sub-section (2), have the meanings specified
below : –
(i) “company” means a company formed and registered under
this Act or an existing company as defined in clause (ii);
(iii) “private company” 1[means a company which has a
minimum paid-up capital of one lakh rupees or such higher
paid-up capital as may be prescribed, and by is articles, -]3 [(iv) “public company” means a company which- (a) is not
a private company;
(b) has a minimum paid-up capital of five lakh rupees or such
higher paid-up capital, as may be prescribed;
(c) is a private company which is a subsidiary of a company
which is not a private company.].”
3.1. It is further contended that incorporation of the
Company became imperative for the purpose of
creating, nurturing and developing a knowledge-led
economy, a knowledge-based communities across the
urban, rural and tribal regions of the State. Not only
that in order to have the information collected and
disseminated globally through the ICT, the department
of Higher Education, Govt. of Odisha in collaboration
Page 3 of 60
// 4 //
with Maharashtra Knowledge Corporation Limited
being the promoters, agreed for the formation of a joint
venture Company and accordingly Opp. Party No.3 was
incorporated as a Public Limited Company and not as a
Government Company.
3.2. It is also contended that since State was a
promoter with regard to formation and incorporation of
Opp. Party No.3 as a Public Limited Company, Chief
Secretary of the State became the Chairman of the
Company. Not only that since the Department of
Higher Education was the promoter and shareholder
on behalf of the State, the Company was placed under
the Administrative Control of the Department of Higher
Education, which ultimately got transferred to the
Electronics and Information Technology Department
w.e.f.13.12.2019. In view of such transfer of the
Administrative Control w.e.f. 13.12.2019, w.e.f.
18.02.2020, Secretary of E and I.T. Department
became the Chairman of the Company.
Page 4 of 60
// 5 //
3.3. Learned Senior Counsel vehemently contended
that since Opp. Party No.3 is registered as a Public
Limited Company in terms of the provision contained
U/s.3 of the Companies Act, 1956 and as not a
Government Company and it has its own Human
Resource Policy and not governed by any policies or
law, which is binding on any Government Company,
the writ petitioner at the instance of the petitioner
challenging an order passed by Opp. Party No.3, is not
maintainable as no writ can be issued to Opp. Party
No.3, being a Public Limited Company.
3.4. It is also contended that since Opp. Party No.3
was incorporated as a Public Limited Company, neither
the Higher Education Department of the State of
Odisha nor Maharashtra Knowledge Corporation
Limited being the shareholders, have any Controlling
Power over the day to day affairs of the Opp. Party
No.3.
Page 5 of 60
// 6 //
3.5. It is also contended that as provided under
Section-179 of the Companies Act, 2013, which is a
parametria provision as like Section-291 of the
Companies Act, 1956, the Board of Directors of the
Company are entitled to exercise all such powers and
to do all such acts and things, as the Company is
authorised to exercise and do. It is accordingly
contended that since Opp. Party No.3 is a Public
Limited Company, Opp. Party No.3 is neither a State in
terms of the provisions contained under Article-12 of
the Constitution of India nor any authority coming
within the provisions of Art-226 of the Constitution of
India, where prerogative writs can be issued by this
Court.
3.6. It is also contended that Opp. Party No.3 is not
performing any public duty and the same is evident
from the Memorandum of Association of the company
so enclosed to the Additional Affidavit filed by the
petitioner.
Page 6 of 60
// 7 //
3.7. Since Opp. Party No.3 is not rendering any public
duty, the Writ Petition so filed by the petitioner against
the impugned order so issued by Opp. Party No.3, is
not maintainable. In support of such submission,
reliance was placed to the following decisions of the
Hon’ble Apex Court:-
“1. AIR 1992 SC 76 (Chandar Mohan Khanna
Vs. NCERT)
2. (2024) 16 SCC 598 (Army Welfare Education
Society Vs. Sunil Kumar Sharma and Ors.)”
3.8. Hon’ble Apex Court in the case of Chandar
Mohan Khana in Para-2, 3, 5 and 6 has held as
follows:-
“2. There are only general principles but not exhaustive
tests to determine whether a body is an
instrumentality or agency of the government. Even in
general principles, there is no cut and dried formula
which would provide correct division of bodies into
those which are instrumentalities or agencies of the
government and those which are not. The powers,
functions, finances and control of the government are
some of the indicating factors to answer the question
whether a body is “State” or not. Each case should be
handled with care and caution. Where the financial
assistance from the State is so much as to meet almost
entire expenditure of the institution, or the share
capital of the corporation is completely held by the
government, it would afford some indication of the
body being impregnated with governmental character.
It may be a relevant factor if the institution or the
corporation enjoys monopoly status which is State
conferred or State protected. Existence of deep and
pervasive State control may afford an indication. If thePage 7 of 60
// 8 //functions of the institution are of public importance
and related to governmental functions, it would also be
a relevant factor. These are merely indicative indicia
and are by no means conclusive or clinching in any
case (see (i) Sukhdev Singh v. Bhagatram Sardar
Singh Raghuvanshi [(1975) 1 SCC 421 : 1975 SCC
(L&S) 101] ; (ii) R.D. Shetty v. International Airport
Authority of India [(1979) 3 SCC 489 : AIR 1979 SC
1628] ; (iii) Ajay Hasia v. Khalid Mujib
Sehravardi [(1981) 1 SCC 722 : 1981 SCC (L&S) 258]
and (iv) Som Prakash Rekhi v. Union of India [(1981) 1
SCC 449 : 1981 SCC (L&S) 200]).
3. Article 12 should not be stretched so as to bring in
every autonomous body which has some nexus with
the government within the sweep of the expression
“State”. A wide enlargement of the meaning must be
tempered by a wise limitation. It must not be lost sight
of that in the modern concept of Welfare State,
independent institution, corporation and agency are
generally subject to State control. The State control
does not render such bodies as “State” under Article
12. The State control, however vast and pervasive is
not determinative. The financial contribution by the
State is also not conclusive. The combination of State
aid coupled with an unusual degree of control over the
management and policies of the body, and rendering
of an important public service being the obligatory
functions of the State may largely point out that the
body is “State”. If the government operates behind a
corporate veil, carrying out governmental activity and
governmental functions of vital public importance,
there may be little difficulty in identifying the body as
“State” within the meaning of Article 12 of the
Constitution. (See: (i) P.K. Ramachandra Iyer v. Union
of India [(1984) 2 SCC 141 : 1984 SCC (L&S) 214] ;
(ii) Central Inland Water Transport Corporation
Ltd. v. Brojo Nath Ganguly [(1986) 3 SCC 156 : 1986
SCC (L&S) 429] and (iii) Tekraj Vasandi @ K.L.
Basandhi v. Union of India [(1988) 1 SCC 236 : 1988
SCC (L&S) 300 : (1988) 2 SCR 260] .)xxxx xxxx xxxx xxxx
5. The object of the NCERT as seen from the above
analysis is to assist and advise the Ministry of
Education and Social Welfare in the implementation of
the governmental policies and major programmes in
the field of education particularly school education.
The NCERT undertakes several kinds of programmes
and activities connected with the coordination of
Page 8 of 60
// 9 //
research extension services and training,
dissemination of improved educational techniques,
collaboration in the educational programmes. It also
undertakes preparation and publication of books,
materials, periodicals and other literature. These
activities are not wholly related to governmental
functions. The affairs of the NCERT are conducted by
the Executive Committee comprising government
servants and educationists. The Executive Committee
would enter into arrangements with government,
public or private organisations or individuals in
furtherance of the objectives for implementation of
programmes. The funds of the NCERT consist of: (i)
grants made by the government, (ii) contribution from
other sources and (iii) income from its own assets. It is
free to apply its income and property towards the
promotion of its objectives and implementation of the
programmes. The government control is confined only
to the proper utilisation of the grant. The NCERT is
thus largely an autonomous body.
6. Almost a similar case was considered by this Court
in Tekraj Vasandi @ K.L. Basandhi v. Union of
India [(1988) 1 SCC 236 : 1988 SCC (L&S) 300 : (1988)
2 SCR 260] . This Court was required to determine
whether the Institute of Constitutional and
Parliamentary Studies (ICPS) was State under Article
12. The ICPS was a registered society financed mostly
by the Central Government and partly by gifts and
donations from Indian and foreign agencies. The first
President of the society was the then Speaker of the
Lok Sabha. Out of the five Vice-Presidents three were
the then Central ministers; the other two were the then
Chief Justice of India and the Attorney General. The
objects of the society were to provide for constitutional
and parliamentary studies, promotion of research in
constitutional law, setting up of legislative research
and reference service for the benefit of legislators,
organisation of training programmes in matters of
parliamentary interest and importance and publication
of a journal. The Court found that ICPS was born as a
voluntary organisation. It found further that though the
annual financial contribution from the State was
substantial, it was entitled to receive aid from the
public and in fact, received contributions from other
sources. Its objects were not governmental business.
As regards the argument that the government
exercised pervasive control over ICPS, the Court said:
(SCC p. 257, para 20)
“In a Welfare State … governmental control is very
pervasive and in fact touches all aspects of socialPage 9 of 60
// 10 //existence …. A broad picture of the matter has to be
taken and a discerning mind has to be applied keeping
the realities and human experiences in view so as to
reach a reasonable conclusion.”
3.9. Hon’ble Apex Court in the case of Sunil Kumar
Sharma in Para-35, 41, 42, 45 to 48, 50 to 52, 55 to
57 has held as follows:-
“35. We begin with the decision of this Court in Vaish
Degree College v. Lakshmi Narain [Vaish Degree
College v. Lakshmi Narain, (1976) 2 SCC 58 : 1976
SCC (L&S) 176 : AIR 1976 SC 888] . This is one of the
landmark decisions of this Court as this case
discussed and considered all the previous decisions
and the same has been referred to and relied upon by
this Court till this date. This Court held that a contract
of personal service cannot ordinarily be enforced
specifically. Three exceptions were set out as well
recognised: (1) where a public servant is sought to be
removed from service in contravention of the provisions
of Article 311 of the Constitution of India; (2) where a
worker is sought to be reinstated under the Industrial
law; (3) where a statutory body acts in breach or
violation of the mandatory provisions of the statute. A
statutory body was defined in that case as one which
was created by or under a statute and owed its
existence to a statute. It was held that an institution
governed by certain statutory provisions for its proper
maintenance and administration would not be a
statutory body. The test prescribed was whether the
institution would exist in the absence of a statute.
xxxx xxxx xxxx xxxx
41. If the authority/body can be treated as “State”
within the meaning of Article 12 of the Constitution of
India, then in such circumstances, it goes without
saying that a writ petition under Article 226 would be
maintainable against such an authority/body for the
purpose of enforcement of fundamental and other legal
rights. Therefore, the definition contained in Article 12
is for the purpose of application of the provisions
contained in Part III. Article 226 of the Constitution,
which deals with powers of the High Courts to issue
certain writs, inter alia, stipulates that every High
Court has the power to issue directions, orders or writs
Page 10 of 60
// 11 //
to any person or authority, including, in appropriate
cases, any Government, for the enforcement of any of
the rights conferred by Part III and for any other
purpose.
42. So far as Article 12 of the Constitution is
concerned, the “State” includes “all local and other
authorities within the territory of India or under the
control of the Government of India”. The debate on the
question as to which body would qualify as “other
authority” and the test/principles applicable for
ascertaining as to whether a particular body can be
treated as “other authority” has been never ending. If
such an authority violates the fundamental right or
other legal rights of any person or citizen (as the case
may be), a writ petition can be filed under Article 226
of the Constitution invoking the extraordinary
jurisdiction of the High Court and seeking appropriate
direction, order or writ. However, under Article 226 of
the Constitution, the power of the High Court is not
limited to the Government or authority which qualifies
to be “State” under Article 12. Power is extended to
issue directions, orders or writs “to any person or
authority”. Again, this power of issuing directions,
orders or writs is not limited to enforcement of
fundamental rights conferred by Part III, but also “for
any other purpose”. Thus, power of the High Court
takes within its sweep more “authorities” than
stipulated in Article 12 and the subject-matter which
can be dealt with under this Article is also wider in
scope.
xxxx xxxx xxxx xxxx
45. In Andi Mukta Sadguru [Andi Mukta Sadguru
Shree Muktajee Vandas Swami Suvarna Jayanti
Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC
691] , dispute arose between the Trust which was
managing and running science college and teachers of
the said college. It pertained to payment of certain
employment related benefits like basic pay, etc. The
matter was referred to the Chancellor of Gujarat
University for his decision. The Chancellor passed an
award, which was accepted by the University as well
as the State Government and a direction was issued to
all affiliated colleges to pay their teachers in terms of
the said award. However, the aforesaid Trust running
the science college did not implement the award.
Teachers filed the writ petition seeking mandamus
and direction to the Trust to pay them their dues of
salary, allowances, provident fund and gratuity in
accordance therewith. It is in this context an issue
Page 11 of 60
// 12 //
arose as to whether the writ petition under Article 226
of the Constitution was maintainable against the said
Trust which was admittedly not a statutory body or
authority under Article 12 of the Constitution as it was
a private trust running an educational institution. The
High Court held that the writ petition was
maintainable and the said view was upheld by this
Court in the aforesaid judgment.
46. The discussion which is relevant for our purposes
is contained in paras 15 to 20 of Andi Mukta
Sadguru [Andi Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak
Trust v. V.R. Rudani, (1989) 2 SCC 691] . However, we
would like to reproduce paras 15, 17 and 20, which
read as under: (Andi Mukta Sadguru [Andi Mukta
Sadguru Shree Muktajee Vandas Swami Suvarna
Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989)
2 SCC 691] , SCC pp. 698-700)
“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 appellant 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. [ See, The Evolving Indian Administrative
Law by M.P. Jain (1983), p. 226.] 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.
***
Page 12 of 60
// 13 //
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 every body which is created by statute —
and whose powers and duties are defined by statute.
So government departments, local authorities, police
authorities, and statutory undertakings and
corporations, are all “public authorities”. But there is
no such limitation for our High Courts to issue writs “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 Article 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.”
47. In para 15 the Court in Andi Mukta Sadguru [Andi
Mukta Sadguru Shree Muktajee Vandas Swami
Suvarna Jayanti Mahotsav Smarak Trust v. V.R.
Rudani, (1989) 2 SCC 691] spelled out two exceptions
to the writ of mandamus viz.: (i) if the rights are purely
of a private character, no mandamus can issue; and
(ii) if the management of the college is purely a private
body “with no public duty”, mandamus will not lie. The
Court clarified that since the Trust in the said case
was an aided institution, because of this reason, it
discharges public function, like government institution,
by way of imparting education to students, more
particularly when rules and regulations of the
affiliating university are applicable to such an
institution, being an aided institution. In such a
Page 13 of 60
// 14 //
situation, the Court held that the service conditions of
academic staff were not purely of a private character
as the staff had superadded protection by the
University’s decision creating a legal right and duty
relationship between the staff and the management.
Further, the Court explained in para 20 that the term
“authority” used in Article 226, in the context, would
receive a liberal meaning unlike the term in Article 12,
inasmuch as Article 12 was relevant only for the
purpose of enforcement of fundamental rights under
Article 32, whereas Article 226 confers power on the
High Courts to issue writs not only for enforcement of
fundamental rights but also non-fundamental rights.
What is relevant is the dicta of the Court that the term
“authority” appearing in Article 226 of the Constitution
would cover any other person or body performing
public duty. The guiding factor, therefore, is the nature
of duty imposed on such a body, namely, public duty
to make it exigible to Article 226.
48. In K. Krishnamacharyulu [K.
Krishnamacharyulu v. Sri Venkateswara Hindu
College of Engg., (1997) 3 SCC 571 : 1997 SCC (L&S)
841] , this Court again emphasised that where there is
an interest created by the Government in an institution
to impart education, which is a fundamental right of
the citizens, the teachers who impart the education get
an element of public interest in performance of their
duties. In such a situation, remedy provided under
Article 226 would be available to the teachers.
xxxx xxxx xxxx xxxx
50. In Satimbla Sharma [Satimbla Sharma v. St Paul’s
Senior Secondary School, (2011) 13 SCC 760 : (2012) 2
SCC (L&S) 75] , the school therein was initially
established as a mission school by Respondent 2. The
school adopted the 10+2 system in 1993 and got
affiliated to the Himachal Pradesh Board of School
Education. Before Independence in 1947, the school
was receiving grant-in-aid from the British Indian
Government and thereafter from the Government of
India up to 1950. Between 1951 and 1966, the school
received grant-in-aid from the State Government of
Punjab. After the State of Himachal Pradesh was
formed, the school received grant-in-aid from the
Government of Himachal Pradesh for the period
between 1967 and 1976. From the year 1977-1978,
the Government of Himachal Pradesh stopped the
grant-in-aid. In such circumstances, the teachers of the
school were paid less than the teachers of the
government schools and the Government-aided schools
Page 14 of 60
// 15 //
in the State of Himachal Pradesh. This led to filing of a
writ petition in the High Court of Himachal Pradesh
seeking a direction to pay the salary and allowances
on a par with the teachers of government schools and
the Government-aided schools. A learned Single Judge
of the High Court allowed the writ petition and directed
the respondents therein to pay to the writ petitioners
therein salary and allowances on a par with their
counterparts working in the government schools from
the dates they were entitled to and at the rates
admissible from time to time. Respondents 1 and 2
therein preferred letters patent appeal before the
Division Bench of the High Court. The appeal came to
be allowed and the writ petition filed by the teachers
was dismissed.
51. In such circumstances referred to above, the
litigation travelled to this Court. This Court, while
disposing of the appeal, held as under: (Satimbla
Sharma case [Satimbla Sharma v. St Paul‘s Senior
Secondary School, (2011) 13 SCC 760 : (2012) 2 SCC
(L&S) 75] , SCC pp. 768-69, paras 25-28)
“25. Where a statutory provision casts a duty on a
private unaided school to pay the same salary and
allowances to its teachers as are being paid to
teachers of government-aided schools, then a writ of
mandamus to the school could be issued to enforce
such statutory duty. But in the present case, there
was no statutory provision requiring a private unaided
school to pay to its teachers the same salary and
allowances as were payable to teachers of government
schools and therefore a mandamus could not be
issued to pay to the teachers of private recognised
unaided schools the same salary and allowances as
were payable to teachers of government institutions.
26. In K. Krishnamacharyulu v. Sri Venkateswara
Hindu College of Engg. [K. Krishnamacharyulu v. Sri
Venkateswara Hindu College of Engg., (1997) 3 SCC
571 : 1997 SCC (L&S) 841] , relied upon by the
learned counsel for the appellants, executive
instructions were issued by the Government that the
scales of pay of Laboratory Assistants as non-teaching
staff of private colleges shall be on a par with the
government employees and this Court held that even
though there were no statutory rules, the Laboratory
Assistants as non-teaching staff of private college
were entitled to the parity of the pay scales as per the
executive instructions of the Government and the writ
jurisdiction of the High Court under Article 226 of the
Constitution is wide enough to issue a writ for
payment of pay on a par with government employees.
Page 15 of 60
// 16 //
In the present case, there are no executive instructions
issued by the Government requiring private schools to
pay the same salary and allowances to their teachers
as are being paid to teachers of government schools or
government-aided schools.
27. We cannot also issue a mandamus to Respondents
1 and 2 on the ground that the conditions of
provisional affiliation of schools prescribed by the
Council for the Indian School Certificate Examinations
stipulate in Clause (5)(b) that the salary and
allowances and other benefits of the staff of the
affiliated school must be comparable to that prescribed
by the State Department of Education because such
conditions for provisional affiliation are not statutory
provisions or executive instructions, which are
enforceable in law. Similarly, we cannot issue a
mandamus to give effect to the recommendations of the
Report of Education Commission 1964-1966 that the
scales of pay of school teachers belonging to the same
category but working under different managements
such as Government, local bodies or private
managements should be the same, unless the
recommendations are incorporated in an executive
instruction or a statutory provision. We, therefore,
affirm the impugned judgment of the Division Bench of
the High Court.
28. We, however, find that the 2009 Act has provisions
in Section 23 regarding the qualifications for
appointment and terms and conditions of service of
teachers and sub-section (3) of Section 23 of the 2009
Act provides that the salary and allowances payable
to, and the terms and conditions of service of, teachers
shall be such as may be prescribed. Section 38 of the
2009 Act empowers the appropriate Government to
make rules and Section 38(2)(l) of the 2009 Act
provides that the appropriate Government, in
particular, may make rules prescribing the salary and
allowances payable to, and the terms and conditions
of service of teachers, under sub-section (3) of Section
23. Section 2(a) defines “appropriate Government” as
the State Government within whose territory the school
is established.
29. The State of Himachal Pradesh, Respondent 3 in
this appeal, is thus empowered to make rules under
sub-section (3) of Section 23 read with Section 38(2)(l)
of the 2009 Act prescribing the salary and allowances
payable to, and the terms and conditions of service of,
teachers. Article 39(d) of the Constitution provides that
the State shall, in particular, direct its policy towards
securing that there is equal pay for equal work for both
men and women. Respondent 3 should therefore
Page 16 of 60
// 17 //
consider making rules under Section 23 read with
Section 38(2)(l) of the 2009 Act prescribing the salary
and allowances of teachers keeping in mind Article
39(d) of the Constitution as early as possible.”
52. Thus, the dictum as laid in Satimbla
Sharma [Satimbla Sharma v. St Paul‘s Senior
Secondary School, (2011) 13 SCC 760 : (2012) 2 SCC
(L&S) 75] is clear. In the absence of any statutory
provisions requiring a private unaided school to pay to
its teachers the same salary and allowances as
payable to the teachers of the government schools, a
mandamus cannot be issued to pay to the teachers of
private recognised unaided schools the same salary
and allowances as payable to the teachers of
government institutions. In the case at hand, the
respondents are being paid the same salary and
allowances as being paid to the teachers and non-
teaching staff appointed by the appellant Society.
xxxx xxxx xxxx xxxx
55. This Court ultimately held as under: (Rajendra
Prasad Bhargava case [St. Mary’s Education
Society v. Rajendra Prasad Bhargava, (2023) 4 SCC
498] , SCC pp. 519-37, paras 29-74)
“29. Respondent 1 herein has laid much emphasis on
the fact that at the time of his appointment in the
school, the same was affiliated to the Madhya Pradesh
State Board. It is his case that at the relevant point of
time the school used to receive the grant-in-aid from
the State Government of Madhya Pradesh. Later in
point of time, the school came to be affiliated to CBSE.
The argument of Respondent 1 seems to be that as the
school is affiliated to the Central Board i.e. CBSE, it
falls within the ambit of “State” under Article 12 of the
Constitution. The school is affiliated to CBSE for the
purpose of imparting elementary education under the
Right of Children to Free and Compulsory Education
Act, 2009 (for short “the 2009 Act”). As Appellant 1 is
engaged in imparting of education, it could be said to
be performing public functions. To put it in other
words, Appellant 1 could be said to be performing
public duty. Even if a body performing public duty is
amenable to the writ jurisdiction, all its decisions are
not subject to judicial review. Only those decisions
which have public element therein can be judicially
reviewed under the writ jurisdiction. If the action
challenged does not have the public element, a writ of
mandamus cannot be issued as the action could be
said to be essentially of a private character.
Page 17 of 60
// 18 //
30. We may at the outset state that CBSE is only a
society registered under the Societies Registration Act,
1860 and the school affiliated to it is not a creature of
the statute and hence not a statutory body. The
distinction between a body created by the statute and
a body governed in accordance with a statute has
been explained by this Court in Vaish Degree
College v. Lakshmi Narain [Vaish Degree
College v. Lakshmi Narain, (1976) 2 SCC 58 : 1976
SCC (L&S) 176 : AIR 1976 SC 888] , as follows: (SCC
p. 65, para 10)
’10. … It is, therefore, clear that there is a well-marked
distinction between a body which is created by the
statute and a body which after having come into
existence is governed in accordance with the
provisions of the statute. In other words the position
seems to be that the institution concerned must owe its
very existence to a statute which would be the
fountainhead of its powers. The question in such cases
to be asked is, if there is no statute would the
institution have any legal existence. If the answer is in
the negative, then undoubtedly it is a statutory body,
but if the institution has a separate existence of its
own without any reference to the statute concerned
but is merely governed by the statutory provisions it
cannot be said to be a statutory body.’
31. As stated above, the school is affiliated to CBSE
for the sake of convenience, namely, for the purpose of
recognition and syllabus or the courses of study and
the provisions of the 2009 Act and the Rules framed
thereunder.
32. The contention canvassed by Respondent 1 is that
a writ petition is maintainable against the Committee
of Management controlling the affairs of an institution
(minority) run by it, if it violates any rules and Bye-
laws laid down by CBSE. First, as discussed above,
CBSE itself is not a statutory body nor the regulations
framed by it have any statutory force. Secondly, the
mere fact that the Board grants recognition to the
institutions on certain terms and conditions itself does
not confer any enforceable right on any person as
against the Committee of Management.
33. In R. v. St. Aloysius Higher Secondary
School [R. v. St. Aloysius Higher Secondary School,
(1972) 4 SCC 188] , this Court held that the mere fact
that an institution is recognised by an authority, does
not itself create an enforceable right to an aggrieved
party against the Management by a teacher on the
ground of breach or non-compliance of any of the Rules
Page 18 of 60
// 19 //
which was part of terms of the recognition. It was
observed as under: (SCC p. 198, para 24)
’24. … The Rules thus govern the terms on which the
Government would grant recognition and aid and the
Government can enforce these rules upon the
management. But the enforcement of such rules is a
matter between the Government and the management,
and a third party, such as teacher aggrieved by some
order of the management cannot derive from the rules
any enforceable right against the management on the
ground of breach or non-compliance of any of the
rules.’
34. In Anita Verma v. D.A.V. College Management
Committee [Anita Verma v. D.A.V. College Management
Committee, (1992) 1 UPLBEC 30 (All)] it was observed:
’30. Where the services of a teacher were terminated,
the Court held that the writ petition under Article 226
is not maintainable as the institution cannot be treated
as the instrumentality of the State. The matter was
considered in detail in Harbans Kaur v. Guru Tegh
Bahadur Public School [Harbans Kaur v. Guru Tegh
Bahadur Public School, 1992 SCC OnLine All 444] ,
wherein the services of the petitioner were terminated
by the Managing Committee of the institution
recognised by CBSE. It was held that the Affiliation
Bye-laws framed by CBSE have no statutory force.
The Court under Article 226 of the Constitution of India
can enforce compliance of statutory provision against a
committee of management as held in a Full Bench
decision of this Court in Aley Ahmad Abidi v. District
Inspector of Schools [Aley Ahmad Abidi v. District
Inspector of Schools, 1976 SCC OnLine All 325 : AIR
1977 All 539] . The Affiliation Bye-laws of CBSE
having no statutory force, the only remedy against the
aggrieved person is to approach CBSE putting his
grievances in relation to the violation of the Affiliation
Bye-laws by the institution.’
35. Thus, where a teacher or non-teaching staff
challenges the action of Committee of Management
that it has violated the terms of contract or the rules of
the Affiliation Bye-laws, the appropriate remedy of
such teacher or employee is to approach CBSE or to
take such other legal remedy available under law. It is
open to CBSE to take appropriate action against the
Committee of Management of the institution for
withdrawal of recognition in case it finds that the
Committee of Management has not performed its
duties in accordance with the Affiliation Bye-laws.
36. It needs no elaboration to state that a school
affiliated to CBSE which is unaided is not State within
Page 19 of 60
// 20 //
Article 12 of the Constitution of India (see Satimbla
Sharma v. St Paul‘s Senior Secondary School [Satimbla
Sharma v. St Paul‘s Senior Secondary School, (2011)
13 SCC 760 : (2012) 2 SCC (L&S) 75] ). Nevertheless
the school discharges a public duty of imparting
education which is a fundamental right of the citizen
(see K. Krishnamacharyulu v. Sri Venkateswara Hindu
College of Engg. [K. Krishnamacharyulu v. Sri
Venkateswara Hindu College of Engg., (1997) 3 SCC
571 : 1997 SCC (L&S) 841] ). The school affiliated to
CBSE is therefore an “authority” amenable to the
jurisdiction under Article 226 of the Constitution of
India (see Binny Ltd. v. V. Sadasivan [Binny Ltd. v. V.
Sadasivan, (2005) 6 SCC 657 : 2005 SCC (L&S) 881] ).
However, a judicial review of the action challenged by
a party can be had by resort to the writ jurisdiction
only if there is a public law element and not to enforce
a contract of personal service. A contract of personal
service includes all matters relating to the service of
the employee — confirmation, suspension, transfer,
termination, etc. (see Apollo Tyres Ltd. v. C.P.
Sebastian [Apollo Tyres Ltd. v. C.P. Sebastian, (2009)
14 SCC 360 : (2009) 5 SCC (Civ) 358 : (2010) 1 SCC
(L&S) 359] ).
37. This Court in K.K. Saksena v. International
Commission on Irrigation & Drainage [K.K.
Saksena v. International Commission on Irrigation &
Drainage, (2015) 4 SCC 670 : (2015) 2 SCC (Civ) 654 :
(2015) 2 SCC (L&S) 119] , after an exhaustive review
of its earlier decisions on the subject, held as follows:
(SCC pp. 692 & 696, paras 43 & 52)
’43. What follows from a minute and careful reading of
the aforesaid judgments of this Court is that if a
person or authority is “State” within the meaning of
Article 12 of the Constitution, admittedly a writ petition
under Article 226 would lie against such a person or
body. However, we may add that even in such cases
writ would not lie to enforce private law rights. There
are a catena of judgments on this aspect and it is not
necessary to refer to those judgments as that is the
basic principle of judicial review of an action under the
administrative law. The reason is obvious. A private
law is that part of a legal system which is a part of
common law that involves relationships between
individuals, such as law of contract or torts. Therefore,
even if writ petition would be maintainable against an
authority, which is “State” under Article 12 of the
Constitution, before issuing any writ, particularly writ
of mandamus, the Court has to satisfy that action of
such an authority, which is challenged, is in thePage 20 of 60
// 21 //domain of public law as distinguished from private
law.
***
52. It is trite that contract of personal service cannot be
enforced. There are three exceptions to this rule,
namely:
(i) when the employee is a public servant working
under the Union of India or State;
(ii) when such an employee is employed by an
authority/body which is State within the meaning of
Article 12 of the Constitution of India; and
(iii) when such an employee is “workmen” within the
meaning of Section 2(s) of the Industrial Disputes Act,
1947 and raises a dispute regarding his termination
by invoking the machinery under the said Act.
In the first two cases, the employment ceases to have
private law character and “status” to such an
employment is attached. In the third category of cases,
it is the Industrial Disputes Act which confers
jurisdiction on the Labour Court/Industrial Tribunal to
grant reinstatement in case termination is found to be
illegal.’
38. The following decisions have been adverted to
in K.K. Saksena [K.K. Saksena v. International
Commission on Irrigation & Drainage, (2015) 4 SCC
670 : (2015) 2 SCC (Civ) 654 : (2015) 2 SCC (L&S) 119]
:
1. Andi Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak
Trust v. V.R. Rudani [Andi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti Mahotsav
Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691] ,
2. G. Bassi Reddy v. International Crops Research
Institute [G. Bassi Reddy v. International Crops
Research Institute, (2003) 4 SCC 225] ,
3. Praga Tools Corpn. v. C.A. Imanual [Praga Tools
Corpn. v. C.A. Imanual, (1969) 1 SCC 585 : (1969) 39
Comp Cas 889] ,
4. Federal Bank Ltd. v. Sagar Thomas [Federal Bank
Ltd. v. Sagar Thomas, (2003) 10 SCC 733 : (2004) 120
Comp Cas 63] .
39. This Court in Janet Jeyapaul v. SRM
University [Janet Jeyapaul v. SRM University, (2015)
16 SCC 530 : 8 SCEC 68] , held that when a private
body exercises its public functions even if it is not
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.
In Binny [Binny Ltd. v. V. Sadasivan, (2005) 6 SCC
Page 21 of 60
// 22 //
657 : 2005 SCC (L&S) 881] , this Court held that
Article 226 of the Constitution is couched in such a
way that a writ of mandamus could be issued even
against a private authority. However, such private
authority must be discharging a public function and
that the decision sought to be corrected or enforced
must be in the discharge of public function.
40. Para 11 of the judgment in Binny [Binny Ltd. v. V.
Sadasivan, (2005) 6 SCC 657 : 2005 SCC (L&S) 881]
is reproduced below: (SCC pp. 665-66)
’11. Judicial review is designed to prevent the cases of
abuse of power and neglect of duty by public
authorities. However, under our Constitution, Article
226 is couched in such a way that a writ of
mandamus could be issued even against a private
authority. However, such private authority must be
discharging a public function and that the decision
sought to be corrected or enforced must be in
discharge of a public function. The role of the State
expanded enormously and attempts have been made
to create various agencies to perform the governmental
functions. Several corporations and companies have
also been formed by the Government to run industries
and to carry on trading activities. These have come to
be known as public sector undertakings. However, in
the interpretation given to Article 12 of the
Constitution, this Court took the view that many of
these companies and corporations could come within
the sweep of Article 12 of the Constitution. At the same
time, there are private bodies also which may be
discharging public functions. It is difficult to draw a
line between public functions and private functions
when it is being discharged by a purely private
authority. A body is 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. Bodies therefore exercise public functions
when they intervene or participate in social or
economic affairs in the public interest.”
41. This Court considered various of its other decisions
to examine the question of public law remedy under
Article 226 of the Constitution. This Court observed
in Binny [Binny Ltd. v. V. Sadasivan, (2005) 6 SCC
657 : 2005 SCC (L&S) 881] as under: (SCC p. 673,
para 29)
’29. Thus, it can be seen that a writ of mandamus or
the remedy under Article 226 is pre-eminently a public
law remedy and is not generally available as a
remedy against private wrongs. It is used for
Page 22 of 60
// 23 //
enforcement of various rights of the public or to compel
the public/statutory authorities to discharge their
duties and to act within their bounds. It may be used
to do justice when there is wrongful exercise of power
or a refusal to perform duties. This writ is admirably
equipped to serve as a judicial control over
administrative actions. This writ could also be issued
against any private body or person, specially in view
of the words used in Article 226 of the Constitution.
However, the scope of mandamus is limited to
enforcement of public duty. The scope of mandamus is
determined by the nature of the duty to be enforced,
rather than the identity of the authority against whom
it is sought. If the private body is discharging a public
function and the denial of any right is in connection
with the public duty imposed on such body, the public
law remedy can be enforced. The duty cast on the
public body may be either statutory or otherwise and
the source of such power is immaterial, but,
nevertheless, there must be the public law element in
such action. Sometimes, it is difficult to distinguish
between public law and private law remedies.’
42. In the penultimate paragraph, this Court ruled as
under: (Binny case [Binny Ltd. v. V. Sadasivan, (2005)
6 SCC 657 : 2005 SCC (L&S) 881] , SCC p. 674, para
32)
’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 “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.’
43. 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.
44. 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 Appellant 1 herein are to impart
education, which is a public function. However, the
issue herein is with regard to the termination of service
Page 23 of 60
// 24 //
of Respondent 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.
45. In Delhi Public School v. M.K. Gandhi [Delhi Public
School v. M.K. Gandhi, (2015) 17 SCC 353 : (2017) 5
SCC (Civ) 461 : (2015) 3 SCC (L&S) 745] , this Court
held that no writ is maintainable against a private
school as it is not “State” within the meaning of Article
12 of the Constitution of India.
46. In Trigun Chand Thakur v. State of Bihar [Trigun
Chand Thakur v. State of Bihar, (2019) 7 SCC 513 :
(2019) 2 SCC (L&S) 378] , this Court upheld the view
[Trigun Chand Thakur v. State of Bihar, 2008 SCC
OnLine Pat 994] of a Division Bench of the Patna High
Court which held that a teacher of privately managed
school, even though financially aided by the State
Government or the Board, cannot maintain a writ
petition against an order of termination from service
passed by the Management.
47. In Satimbla Sharma [Satimbla Sharma v. St Paul’s
Senior Secondary School, (2011) 13 SCC 760 : (2012) 2
SCC (L&S) 75] , this Court held that the unaided
private minority schools over which the Government
has no administrative control because of their
autonomy under Article 30(1) of the Constitution are
not “State” within the meaning of Article 12 of the
Constitution. As the right to equality under Article 14 of
the Constitution is available against the State, it
cannot be claimed against unaided private minority
private schools.
48. The Full Bench of the Allahabad High Court
in Roychan Abraham v. State of U.P. [Roychan
Abraham v. State of U.P., 2019 SCC OnLine All 3935 :
AIR 2019 All 96] , after taking into consideration
various decisions of this Court, held as under: (SCC
OnLine All para 38)
’38. Even if it be assumed that an educational
institution is imparting public duty, the act complained
of must have direct nexus with the discharge of public
duty. It is undisputedly a public law action which
confers a right upon the aggrieved to invoke
extraordinary writ jurisdiction under Article 226 for a
prerogative writ. Individual wrongs or breach of
mutual contracts without having any public element as
its integral part cannot be rectified through petition
under Article 226. Wherever Courts have intervened in
exercise of jurisdiction under Article 226, either thePage 24 of 60
// 25 //service conditions were regulated by 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 public
law element.’
49. We may refer to and rely upon one order passed
by this Court in S.K. Varshney v. Our Lady of Fatima
Higher Secondary School [S.K. Varshney v. Our Lady
of Fatima Higher Secondary School, (2023) 4 SCC 539]
, in which the dispute was one relating to the
retirement age of a teacher working in an unaided
institution. This Court, while dismissing the appeal
preferred by the employee, held as under: (SCC p. 540,
paras 4-8)
‘4. Both the petitions were dismissed by the learned
Single Judge on the ground that no writ would lie
against unaided private institutions and the writ
petitions were not maintainable.
5. Aggrieved thereby, writ appeals have been filed
before the Division Bench without any result. The
Division Bench held [S.K. Varshney v. Our Lady of
Fatima Higher Secondary School, 1999 SCC OnLine All
908] that the writ petitions are not maintainable
against a private institute. Aggrieved thereby, these
appeals have been filed.
6. The counsel for the appellant relied on a decision
rendered by this Court in K. Krishnamacharyulu v. Sri
Venkateswara Hindu College of Engg. [K.
Krishnamacharyulu v. Sri Venkateswara Hindu
College of Engg., (1997) 3 SCC 571 : 1997 SCC (L&S)
841] He particularly relied on the observation made by
this Court in para 4 of the order that when an element
of public interest is created and the institution is
catering to that element, the teacher, being the arm of
the institution, is also entitled to avail of the remedy
provided under Article 226.
7. This Court in Sushmita Basu v. Ballygunge Siksha
Samity [Sushmita Basu v. Ballygunge Siksha Samity,
(2006) 7 SCC 680 : 2006 SCC (L&S) 1741] in which
one of us (Sema, J.) is a party, after considering the
aforesaid judgment has distinguished the ratio
by holding that the writ under Article 226 of the
Constitution against a private educational institute
would be justified only if a public law element is
involved and if it is only a private law remedy no writ
petition would lie. In the present cases, there is no
question of public law element involved inasmuch as
the grievances of the appellants are of personal
nature.
Page 25 of 60
// 26 //
8. We, accordingly, hold that writ petitions are not
maintainable against the private institute. There is no
infirmity in the order passed by the learned Single
Judge and affirmed by the Division Bench. These
appeals are devoid of merit and are, accordingly,
dismissed. No costs.’
50. We may also refer to and rely upon the decision of
this Court in Vidya Ram Misra v. Shri Jai Narain
College [Vidya Ram Misra v. Shri Jai Narain College,
(1972) 1 SCC 623] . The appellant therein filed a writ
petition before the Lucknow Bench of the High Court of
Allahabad challenging the validity of a resolution
passed by the Managing Committee of Shri Jai Narain
College, Lucknow, an associated college of Lucknow
University, terminating his services and praying for
issue of an appropriate writ or order quashing the
resolution. A learned Single Judge of the High Court
finding that in terminating the services, the Managing
Committee acted in violation of the principles of natural
justice, quashed the resolution and allowed the writ
petition. The Managing Committee appealed against
the order. A Division Bench of the High Court found
that the relationship between the college and the
appellant therein was that of master and servant and
that even if the service of the appellant had been
terminated in breach of the audi alteram partem rule of
natural justice, the remedy of the appellant was to file
a suit for damages and not to apply under Article 226
of the Constitution for a writ or order in the nature of
certiorari and that, in fact, no principle of natural
justice was violated by terminating the services of the
appellant. The writ petition was dismissed. In appeal,
this Court upheld the decision of the High Court
holding that the lecturer cannot have any cause of
action on breach of the law but only on breach of the
contract, hence he has a remedy only by way of suit
for damages and not by way of writ under Article 226
of the Constitution.
51. In Vidya Ram Misra [Vidya Ram Misra v. Shri Jai
Narain College, (1972) 1 SCC 623] , this Court
observed thus: (SCC p. 629, paras 12-13)
’12. Whereas in P.R.K. Jodh v. A.L. Pande [P.R.K.
Jodh v. A.L. Pande, 1965 SCC OnLine SC 86 : (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 found a cause of action on any
breach of the law but only on the breach of the
Page 26 of 60
// 27 //
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 a statutory flavour
and for its breach, the appellant’s remedy lay
elsewhere.
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 [S.R.
Tewari v. District Board, 1963 SCC OnLine SC 83 :
(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 P.R.K.
Jodh [P.R.K. Jodh v. A.L. Pande, 1965 SCC OnLine SC
86 : (1965) 2 SCR 713] , 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.’
52. In the case on hand, the facts are similar. Rule
26(1) of the Affiliation Bye-laws, framed by CBSE,
provides that each school affiliated with the Board
shall frame Service Rules. Sub-rule (2) of it provides
that a service contract will be entered with each
employee as per the provision in the Education Act of
the State/Union Territory, or as given in Appendix III, if
not obligatory as per the State Education Act. These
rules also provide procedures for appointments,
probation, confirmation, recruitment, attendance
representations, grant of leave, code of conduct,
disciplinary procedure, penalties, etc. The model form
of contract of service, to be executed by an employee,
given in Appendix III, lays down that the service,
under this agreement, will be liable to disciplinary
action in accordance with the Rules and Regulations
framed by the school from time to time. Only in case
where the post is abolished or an employee intends to
resign, Rule 31 of the Affiliation Bye-laws of the Board
will apply. It may be noted that the above Bye-laws do
not provide for any particular procedure for dismissalPage 27 of 60
// 28 //or removal of a teacher for being incorporated in the
contract. Nor does the model form of contract given in
Appendix III lay down any particular procedure for
that purpose. On the contrary, the disciplinary action
is to be taken in accordance with the Rules and
Regulations framed by the school from time to time.
53. On a plain reading of these provisions, it becomes
clear that the terms and conditions mentioned in the
Affiliation Bye-laws may be incorporated in the
contract to be entered into between the school and the
employee concerned. It does not say that the terms
and conditions have any legal force, until and unless
they are embodied in an agreement. To put it in other
words, the terms and conditions of service mentioned
in Chapter VII of the Affiliation Bye-laws have no force
of law. They become terms and conditions of service
only by virtue of their being incorporated in the
contract. Without the contract they have no vitality and
can confer no legal rights. The terms and conditions
mentioned in the Affiliation Bye-laws have no efficacy,
unless they are incorporated in a contract. In the
absence of any statutory provisions governing the
services of the employees of the school, the service of
Respondent 1 was purely contractual. A contract of
personal service cannot be enforced specifically.
Therefore, Respondent 1 cannot find a cause of action
on any breach of the law, but only on the breach of the
contract. That being so, the appellant’s remedy lies
elsewhere and in no case the writ is maintainable.
54. Thus, the aforesaid order [Vidya Ram Misra v. Shri
Jai Narain College, (1972) 1 SCC 623] passed by this
Court makes it very clear that in a case of retirement
and in case of termination, no public law element is
involved. This Court has held that a writ under Article
226 of the Constitution against a private educational
institution shall be maintainable only if a public law
element is involved and if there is no public law
element is involved, no writ lies.
55. In T.M.A. Pai Foundation v. State of
Karnataka [T.M.A. Pai Foundation v. State of
Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] , an eleven-
Judge Bench of this Court formulated certain points in
fact to reconsider its earlier decision in Ahmedabad St.
Xavier’s College Society v. State of
Gujarat [Ahmedabad St. Xavier’s College
Society v. State of Gujarat, (1974) 1 SCC 717 : 1 SCEC
125] , and also Unni Krishnan, J.P. v. State of
A.P. [Unni Krishnan, J.P. v. State of A.P., (1993) 4 SCC
111 : 1 SCEC 645] , regarding the ‘right of the minority
institution including administration of the student and
Page 28 of 60
// 29 //
imparting education vis-Ã -vis the right of
administration of the non-minority student’.
56. In the said case, very important points arose as
follow: (T.M.A. Pai Foundation case [T.M.A. Pai
Foundation v. State of Karnataka, (2002) 8 SCC 481 :
2 SCEC 1] , SCC pp. 709-710, para 450)
‘450. … Q.5. (c) Whether the statutory provisions
which regulate the facets of administration like control
over educational agencies, control over governing
bodies, conditions of affiliation including
recognition/withdrawal thereof, and appointment of
staff, employees, teachers and principals including
their service conditions and regulation of fees, etc.
would interfere with the right of administration of
minorities?
A. So far as the statutory provisions regulating the
facets of administration are concerned, in case of an
unaided minority educational institution, the
regulatory measure of control should be minimal and
the conditions of recognition as well as conditions of
affiliation to a university or board have to be complied
with, but in the matter of day-to-day management, like
appointment of staff, teaching and non-teaching and
administrative control over them, the management
should have the freedom and there should not be any
external controlling agency. However, a rational
procedure for selection of teaching staff and for taking
disciplinary action has to be evolved by the
management itself. For redressing the grievances of
such employees who are subjected to punishment or
termination from service, a mechanism will have to be
evolved and in our opinion, appropriate tribunals could
be constituted, and till then, such tribunal could be
presided over by a judicial officer of the rank of District
Judge. The State or other controlling authorities,
however, can always prescribe the minimum
qualifications, salaries, experience and other
conditions bearing on the merit of an individual for
being appointed as a teacher of an educational
institution.
Regulations can be framed governing service
conditions for teaching and other staff for whom aid is
provided by the State without interfering with overall
administrative control of management over the staff,
government/university representative can be
associated with the Selection Committee and the
guidelines for selection can be laid down. In regard to
unaided minority educational institutions such
regulations, which will ensure a check over unfair
Page 29 of 60
// 30 //
practices and general welfare of teachers could be
framed.’
57. We now proceed to look into the two decisions of
this Court in Ramesh Ahluwalia [Ramesh
Ahluwalia v. State of Punjab, (2012) 12 SCC 331 :
(2013) 3 SCC (L&S) 456 : 4 SCEC 415] and Marwari
Balika Vidyalaya [Marwari Balika Vidyalaya v. Asha
Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S)
854] , respectively.
58. In Ramesh Ahluwalia [Ramesh Ahluwalia v. State
of Punjab, (2012) 12 SCC 331 : (2013) 3 SCC (L&S)
456 : 4 SCEC 415] , the appellant therein was working
as an administrative officer in a privately run
educational institution and by way of disciplinary
proceedings, was removed from service by the
Managing Committee of the said educational
institution. A writ petition was filed before the learned
Single Judge of the High Court challenging the order of
the disciplinary authority wherein he was removed
from service. The writ petition was ordered [Ramesh
Ahluwalia v. State of Punjab, 2009 SCC OnLine P&H
11755] to be dismissed in limine holding that the said
educational institution being an unaided and a private
school managed by the society cannot be said to be an
instrument of the State. The appeal before the Division
Bench also came to be dismissed [Ramesh
Ahluwalia v. State of Punjab, 2010 SCC OnLine P&H
13111] . The matter travelled to this Court.
59. The principal argument before this Court
in Ramesh Ahluwalia [Ramesh Ahluwalia v. State of
Punjab, (2012) 12 SCC 331 : (2013) 3 SCC (L&S) 456 :
4 SCEC 415] was in regard to the maintainability of
the writ petition against a private educational
institution. It was argued on the behalf of the appellant
therein that although a private educational institution
may not fall within the definition of “State” or “other
authorities/instrumentalities” of the State under Article
12 of the Constitution, yet a writ petition would be
maintainable as the said educational institution could
be said to be discharging public functions by imparting
education. However, the learned counsel for the
educational institution therein took a plea before this
Court that while considering whether a body falling
within the definition of “State”, it is necessary to
consider whether such body is financially, functionally
and administratively dominated by or under the
control of the Government. It was further argued that if
the control is merely regulatory either under a statute
or otherwise, it would not ipso facto make the body
“State” within Article 12 of the Constitution. On the
conspectus of the peculiar facts of the case and thePage 30 of 60
// 31 //submissions advanced, this Court held that a writ
petition would be maintainable if a private educational
institution discharges public functions, more
particularly imparting education. Even by holding so,
this Court declined to extend any benefits to the
teacher as the case involved disputed questions of
fact.
60. We take notice of the fact that in Ramesh
Ahluwalia [Ramesh Ahluwalia v. State of Punjab,
(2012) 12 SCC 331 : (2013) 3 SCC (L&S) 456 : 4 SCEC
415] the attention of the Hon’ble Judges was not
drawn to the earlier decisions of this Court in K.
Krishnamacharyulu [K. Krishnamacharyulu v. Sri
Venkateswara Hindu College of Engg., (1997) 3 SCC
571 : 1997 SCC (L&S) 841] , Federal Bank [Federal
Bank Ltd. v. Sagar Thomas, (2003) 10 SCC 733 :
(2004) 120 Comp Cas 63] , Sushmita
Basu v. Ballygunge Siksha Samity [Sushmita
Basu v. Ballygunge Siksha Samity, (2006) 7 SCC 680 :
2006 SCC (L&S) 1741] , and Delhi Public
School v. M.K. Gandhi [Delhi Public School v. M.K.
Gandhi, (2015) 17 SCC 353 : (2017) 5 SCC (Civ) 461 :
(2015) 3 SCC (L&S) 745] .
61. In Marwari Balika Vidyalaya [Marwari Balika
Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 :
(2021) 1 SCC (L&S) 854] , this Court followed Ramesh
Ahluwalia [Ramesh Ahluwalia v. State of Punjab,
(2012) 12 SCC 331 : (2013) 3 SCC (L&S) 456 : 4 SCEC
415] referred to above.
62. We may say without any hesitation that
Respondent 1 herein cannot press into service the
dictum as laid down by this Court in Marwari Balika
Vidyalaya [Marwari Balika Vidyalaya v. Asha
Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S)
854] as the said case is distinguishable. The most
important distinguishing feature of Marwari Balika
Vidyalaya [Marwari Balika Vidyalaya v. Asha
Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S)
854] is that in the said case the removal of the teacher
from service was subject to the approval of the State
Government. The State Government took a specific
stance before this Court that its approval was required
both for the appointment as well as removal of the
teacher. In the case on hand, indisputably the
Government or any other agency of the Government
has no role to play in the termination of Respondent 1
herein.
63. In context with Marwari Balika
Vidyalaya [Marwari Balika Vidyalaya v. Asha
Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S)
Page 31 of 60
// 32 //
854] , we remind ourselves of Bye-law 49(2) which
provides that no order with regard to the imposition of
major penalty shall be made by the disciplinary
authority except after the receipt of the approval of the
Disciplinary Committee. Thus unlike Marwari Balika
Vidyalaya [Marwari Balika Vidyalaya v. Asha
Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S)
854] where approval was required of the State
Government, in the case on hand the approval is to be
obtained from the Disciplinary Committee of the
institution. This distinguishing feature seems to have
been overlooked by the High Court while passing the
impugned order.
64. In Marwari Balika Vidyalaya [Marwari Balika
Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 :
(2021) 1 SCC (L&S) 854] , the school was receiving
grant-in-aid to the extent of dearness allowance. The
appointment and the removal, as noted above, is
required to be approved by the District Inspector of
School (Primary Education) and, if any action is taken
dehors such mandatory provisions, the same would
not come within the realm of private element.
65. In Trigun Chand Thakur [Trigun Chand
Thakur v. State of Bihar, (2019) 7 SCC 513 : (2019) 2
SCC (L&S) 378] , the appellant therein was appointed
as a Sanskrit teacher and a show-cause notice was
issued upon him on the ground that he was absent on
the eve of Independence day and Teachers Day which
resulted into a dismissal order passed by the
Managing Committee of the private school. The
challenge was made by filing a writ petition before the
High Court which was dismissed on the ground that
the writ petition is not maintainable against an order
terminating the service by the Managing Committee of
the private school. This Court held that even if the
private school was receiving a financial aid from the
Government, it does not make the said Managing
Committee of the school “State” within the meaning of
Article 12 of the Constitution of India.
66. Merely because a writ petition can be maintained
against the private individuals discharging the public
duties and/or public functions, the same should not be
entertained if the enforcement is sought to be secured
under the realm of a private law. It would not be safe
to say that the moment the private institution is
amenable to writ jurisdiction then every dispute
concerning the said private institution is amenable to
writ jurisdiction. It largely depends upon the nature of
the dispute and the enforcement of the right by an
individual against such institution. The right which
purely originates from a private law cannot be
Page 32 of 60
// 33 //
enforced taking aid of the writ jurisdiction irrespective
of the fact that such institution is discharging the
public duties and/or public functions. The scope of the
mandamus is basically limited to an enforcement of
the public duty and, therefore, it is an ardent duty of
the court to find out whether the nature of the duty
comes within the peripheral of the public duty. There
must be a public law element in any action.
67. Our present judgment would remain incomplete if
we fail to refer to the decision of this Court
in Ramakrishna Mission v. Kago Kunya [Ramakrishna
Mission v. Kago Kunya, (2019) 16 SCC 303] . In the
said case this Court considered all its earlier
judgments on the issue. The writ petition was not
found maintainable against the Mission merely for the
reason that it was found running a hospital, thus
discharging public functions/public duty. This Court
considered the issue in reference to the element of
public function which should be akin to the work
performed by the State in its sovereign capacity. This
Court took the view that every public function/public
duty would not make a writ petition to be maintainable
against an “authority” or a “person” referred under
Article 226 of the Constitution of India unless the
functions are such which are akin to the functions of
the State or are sovereign in nature.
68. Few relevant paragraphs of the said judgment are
quoted as under for ready reference: (Ramakrishna
Mission case [Ramakrishna Mission v. Kago Kunya,
(2019) 16 SCC 303] , SCC pp. 309-11 & 313, paras 17-
22 & 25-26)
’17. The basic issue before this Court is whether the
functions performed by the hospital are public
functions, on the basis of which a writ of mandamus
can lie under Article 226 of the Constitution.
18. The hospital is a branch of the Ramakrishna
Mission and is subject to its control. The Mission was
established by Swami Vivekanand, the foremost
disciple of Shri Ramakrishna Paramhansa. Service to
humanity is for the organisation co-equal with service
to God as is reflected in the motto “Atmano
Mokshartham Jagad Hitaya Cha”. The main object of
the Ramakrishna Mission is to impart knowledge in
and promote the study of Vedanta and its principles
propounded by Shri Ramakrishna Paramahansa and
practically illustrated by his own life and of
comparative theology in its widest form. Its objects
include, inter alia to establish, maintain, carry on and
assist schools, colleges, universities, research
institutions, libraries, hospitals and take up
Page 33 of 60
// 34 //
development and general welfare activities for the
benefit of the underprivileged/backward/tribal people
of society without any discrimination. These activities
are voluntary, charitable and non-profit making in
nature. The activities undertaken by the Mission, a
non-profit entity are not closely related to those
performed by the State in its sovereign capacity nor do
they partake of the nature of a public duty.
19. The Governing Body of the Mission is constituted
by members of the Board of Trustees of Ramakrishna
Math and is vested with the power and authority to
manage the organisation. The properties and funds of
the Mission and its management vest in the Governing
Body. Any person can become a member of the
Mission if elected by the Governing Body. Members on
roll form the quorum of the annual general meetings.
The Managing Committee comprises of members
appointed by the Governing Body for managing the
affairs of the Mission. Under the Memorandum of
Association and Rules and Regulations of the Mission,
there is no governmental control in the functioning,
administration and day-to-day management of the
Mission. The conditions of service of the employees of
the hospital are governed by service rules which are
framed by the Mission without the intervention of any
governmental body.
20. In coming to the conclusion that the appellants fell
within the description of an authority under Article
226, the High Court placed a considerable degree of
reliance on the judgment of a two-Judge Bench of this
Court in Andi Mukta [Andi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti Mahotsav
Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691] . Andi
Mukta [Andi Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak
Trust v. V.R. Rudani, (1989) 2 SCC 691] was a case
where a public trust was running a college which was
affiliated to Gujarat University, a body governed by
the State legislation. The teachers of the University
and all its affiliated colleges were governed, insofar as
their pay scales were concerned, by the
recommendations of the University Grants
Commission. A dispute over pay scales raised by the
association representing the teachers of the University
had been the subject-matter of an award of the
Chancellor, which was accepted by the Government as
well as by the University. The management of the
college, in question, decided to close it down without
prior approval. A writ petition was instituted before the
High Court for the enforcement of the right of the
teachers to receive their salaries and terminal benefits
Page 34 of 60
// 35 //
in accordance with the governing provisions. In that
context, this Court dealt with the issue as to whether
the management of the college was amenable to the
writ jurisdiction. A number of circumstances weighed
in the ultimate decision of this Court, including the
following:
20.1. The trust was managing an affiliated college.
20.2. The college was in receipt of government aid.
20.3. The aid of the Government played a major role in
the control, management and work of the educational
institution.
20.4. Aided institutions, in a similar manner as
government institutions, discharge a public function of
imparting education to students.
20.5. All aided institutions are governed by the rules
and regulations of the affiliating University.
20.6. Their activities are closely supervised by the
University.
20.7. Employment in such institutions is hence, not
devoid of a public character and is governed by the
decisions taken by the University which are binding on
the management.
21. It was in the above circumstances that this Court
came to the conclusion that the service conditions of
the academic staff do not partake of a private
character, but are governed by a right-duty
relationship between the staff and the management. A
breach of the duty, it was held, would be amenable to
the remedy of a writ of mandamus. While the Court
recognised that “the fast expanding maze of bodies
affecting rights of people cannot be put into watertight
compartments”, it laid down two exceptions where the
remedy of mandamus would not be available: (Andi
Mukta case [Andi Mukta Sadguru Shree Muktajee
Vandas Swami Suvarna Jayanti Mahotsav Smarak
Trust v. V.R. Rudani, (1989) 2 SCC 691] , SCC p. 698,
para 15)
“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.”
22. Following the decision in Andi Mukta [Andi Mukta
Sadguru Shree Muktajee Vandas Swami Suvarna
Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989)
2 SCC 691] , this Court has had the occasion to re-visit
the underlying principles in successive decisions. This
has led to the evolution of principles to determine what
constitutes a “public duty” and “public function” andPage 35 of 60
// 36 //whether the writ of mandamus would be available to
an individual who seeks to enforce her right.
***
25. A similar view was taken in Ramesh
Ahluwalia v. State of Punjab [Ramesh
Ahluwalia v. State of Punjab, (2012) 12 SCC 331 :
(2013) 3 SCC (L&S) 456 : 4 SCEC 415] , where a two-
Judge Bench of this Court held that a private body can
be held to be amenable to the jurisdiction of the High
Court under Article 226 when it performs public
functions which are normally expected to be performed
by the State or its authorities.
26. In Federal Bank Ltd. v. Sagar Thomas [Federal
Bank Ltd. v. Sagar Thomas, (2003) 10 SCC 733 :
(2004) 120 Comp Cas 63] , this Court analysed the
earlier judgments of this Court and provided a
classification of entities against whom a writ petition
may be maintainable: (SCC p. 748, para 18)
“18. From the decisions referred to above, the position
that emerges is that a writ petition under Article 226 of
the Constitution of India may be maintainable against:
(i) the State (Government); (ii) an authority; (iii) a
statutory body; (iv) an instrumentality or agency of the
State; (v) a company which is financed and owned by
the State; (vi) a private body run substantially on State
funding; (vii) a private body discharging public duty or
positive obligation of public nature; and (viii) a person
or a body under liability to discharge any function
under any statute, to compel it to perform such a
statutory function.” ‘
69. The aforesaid decision of this Court
in Ramakrishna Mission [Ramakrishna
Mission v. Kago Kunya, (2019) 16 SCC 303] came to
be considered exhaustively by a Full Bench of the High
Court of Allahabad in Uttam Chand Rawat v. State of
U.P. [Uttam Chand Rawat v. State of U.P., 2021 SCC
OnLine All 724 : (2021) 6 All LJ 393] , wherein the Full
Bench was called upon to answer the following
question: (Uttam Chand Rawat case [Uttam Chand
Rawat v. State of U.P., 2021 SCC OnLine All 724 :
(2021) 6 All LJ 393] , SCC OnLine All para 1)
‘1. … … “(i) Whether the element of public function and
public duty inherent in the enterprise that an
educational institution undertakes, conditions of
service of teachers, whose functions are a sine qua
non to the discharge of that public function or duty,
can be regarded as governed by the private law of
contract and with no remedy available under Article
226 of the Constitution?…” ‘Page 36 of 60
// 37 //
70. The Full Bench proceeded to answer the aforesaid
question as under: (Uttam Chand Rawat case [Uttam
Chand Rawat v. State of U.P., 2021 SCC OnLine All
724 : (2021) 6 All LJ 393] , SCC OnLine All paras 16-
20)
’16. The substance of the discussion made above is
that a writ petition would be maintainable against the
authority or the person which may be a private body, if
it discharges public function/public duty, which is
otherwise primary function of the State referred in the
judgment of the Supreme Court in Ramakrishna
Mission [Ramakrishna Mission v. Kago Kunya, (2019)
16 SCC 303] and the issue under public law is
involved. The aforesaid twin test has to be satisfied for
entertaining writ petition under Article 226 of the
Constitution of India.
17. From the discussion aforesaid and in the light of
the judgments referred above, a writ petition under
Article 226 of the Constitution would be maintainable
against: (i) the Government; (ii) an authority; (iii) a
statutory body; (iv) an instrumentality or agency of the
State; (v) a company which is financed and owned by
the State; (vi) a private body run substantially on State
funding; (vii) a private body discharging public duty or
positive obligation of public nature; and (viii) a person
or a body under liability to discharge any function
under any statute, to compel it to perform such a
statutory function.
18. There is thin line between “public functions” and
“private functions” discharged by a person or a private
body/authority. The writ petition would be
maintainable only after determining the nature of the
duty to be enforced by the body or authority rather
than identifying the authority against whom it is
sought.
19. It is also that even if a person or authority is
discharging public function or public duty, the writ
petition would be maintainable under Article 226 of the
Constitution, if Court is satisfied that action under
challenge falls in the domain of public law, as
distinguished from private law. The twin tests for
maintainability of writ are as follows:
1. The person or authority is discharging public
duty/public functions.
2. Their action under challenge falls in domain of
public law and not under common law.
20. The writ petition would not be maintainable
against an authority or a person merely for the reason
that it has been created under the statute or is to be
governed by regulatory provisions. It would not even in
Page 37 of 60
// 38 //
a case where aid is received unless it is substantial in
nature. The control of the State is another issue to hold
a writ petition to be maintainable against an authority
or a person.’
71. We owe a duty to consider one relevant aspect of
the matter. Although this aspect which we want to
take notice of has not been highlighted by Respondent
1, yet we must look into the same. We have referred to
the CBSE Affiliation Bye-laws in the earlier part of our
judgment. Appendix IV of the Affiliation Bye-laws is
with respect to the minority institutions. Clause 6 of
Appendix IV is with respect to the disciplinary control
over the staff in a minority educational institution. We
take notice of the fact that in Clause 6, the State has
the regulatory power to safeguard the interests of their
employees and their service conditions including the
procedure for punishment to be imposed.
72. For the sake of convenience and at the cost of
repetition, we quote Clause 6 once again as under:
‘6. Disciplinary control over staff in Minority
Educational Institutions.–While the managements
should exercise the disciplinary control over staff, it
must be ensured that they hold an inquiry and follow
a fair procedure before punishment is given. With a
view to preventing the possible misuse of power by the
management of the Minority Educational Institutions,
the State has the regulatory power to safeguard the
interests of their employees and their service
conditions including procedure for punishment to be
imposed.’
73. It could be argued that as the State has regulatory
power to safeguard the interests of the employees
serving with the minority institutions, any action or
decision taken by such institution is amenable to writ
jurisdiction under Article 226 of the Constitution.
74. In the aforesaid context, we may only say that
merely because the State Government has the
regulatory power, the same, by itself, would not confer
any such status upon the institution (school) nor put
any such obligations upon it which may be enforced
through issue of a writ under Article 226 of the
Constitution. In this regard, we may refer to and rely
upon the decision of this Court in Federal
Bank [Federal Bank Ltd. v. Sagar Thomas, (2003) 10
SCC 733 : (2004) 120 Comp Cas 63] . While deciding
whether a private bank that is regulated by the
Banking Regulation Act, 1949 discharges any public
function, this Court held thus: (Ramakrishna Mission
case [Ramakrishna Mission v. Kago Kunya, (2019) 16
SCC 303] , SCC pp. 315-16, paras 33-35)
Page 38 of 60
// 39 //
’33. … “33. … in our view, a private company carrying
on banking business as a scheduled bank, cannot be
termed as an institution or a company carrying on any
statutory or public duty. A private body or a person
may be amenable to writ jurisdiction only where it
may become necessary to compel such body or
association to enforce any statutory obligations or
such obligations of public nature casting positive
obligation upon it. We do not find such conditions are
fulfilled in respect of a private company carrying on a
commercial activity of banking. Merely regulatory
provisions to ensure such activity carried on by private
bodies work within a discipline, do not confer any
such status upon the company nor put any such
obligation upon it which may be enforced through
issue of a writ under Article 226 of the Constitution.
Present is a case of disciplinary action being taken
against its employee by the appellant Bank. The
respondent’s service with the Bank stands terminated.
The action of the Bank was challenged by the
respondent by filing a writ petition under Article 226 of
the Constitution of India. The respondent is not trying
to enforce any statutory duty on the part of the Bank.”
(Federal Bank case [Federal Bank Ltd. v. Sagar
Thomas, (2003) 10 SCC 733 : (2004) 120 Comp Cas
63] , SCC pp. 758-59, para 33)
34. Thus, contracts of a purely private nature would
not be subject to writ jurisdiction merely by reason of
the fact that they are structured by statutory
provisions. The only exception to this principle arises in
a situation where the contract of service is governed or
regulated by a statutory provision. Hence, for instance,
in K.K. Saksena [K.K. Saksena v. International
Commission on Irrigation & Drainage, (2015) 4 SCC
670 : (2015) 2 SCC (Civ) 654 : (2015) 2 SCC (L&S) 119]
this Court held that when an employee is a workman
governed by the Industrial Disputes Act, 1947, it
constitutes an exception to the general principle that a
contract of personal service is not capable of being
specifically enforced or performed.
35. It is of relevance to note that the Act was enacted
to provide for the regulation and registration of clinical
establishments with a view to prescribe minimum
standards of facilities and services. The Act, inter alia,
stipulates conditions to be satisfied by clinical
establishments for registration. However, the Act does
not govern contracts of service entered into by the
hospital with respect to its employees. These fall
within the ambit of purely private contracts, against
which writ jurisdiction cannot lie. The sanctity of this
distinction must be preserved.’ ”
Page 39 of 60
// 40 //
56. The final conclusion drawn in the said decision is
reproduced herein: (Rajendra Prasad Bhargava
case [St. Mary’s Education Society v. Rajendra Prasad
Bhargava, (2023) 4 SCC 498] , SCC pp. 537-38, paras
75-76)
“75. We may sum up our final conclusions as
under:
75.1. 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.
75.2. 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 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
public law element.
75.3. 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 orPage 40 of 60
// 41 //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.
75.4. 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 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 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.
75.5. 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.
76. In view of the aforesaid discussion, we hold that
the learned Single Judge [Rajendra Prasad
Bhargava v. Union of India, 2017 SCC OnLine MP
2337] of the High Court was justified in taking the
view that the original writ application filed by
Respondent 1 herein under Article 226 of the
Constitution is not maintainable. The appeal court
could be said to have committed an error in taking a
contrary view.”
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
Page 41 of 60
// 42 //
duty and therefore 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.”
3.10. It is also contended that the Department of
Higher Education while issuing letter dated 05.08.2016
so enclosed as Annexure-A/10 to the written note,
clearly indicated that Opp. Party No.3 is not a Public
Sector Undertaking and it is a Public Limited
Company, as per Companies Act.
3.11. Making all these submissions, learned Senior
Counsel appearing for the Opp. Party No.3 contended
that against the impugned order, the Writ Petition so
filed by the petitioner is not maintainable.
4. Mr. S.S. Tripathy, learned counsel appearing for
the petitioner on the other hand while making his
submission that the Writ Petition is very much
maintainable against Opp. Party No.3 contended that,
even though Opp. Party No.3 was incorporated as a
Page 42 of 60
// 43 //
Public Limited Company, but it is not only a State
within the meaning of Article-12 of the Constitution of
India but also it is amenable to the writ jurisdiction of
this Court under Art-226 of the Constitution of India.
4.1. In support of his submission, reliance was placed
to a decision of the Hon’ble Apex Court in the case of
Ajay Hasia Vs. Khalid Mujib Sehravardi, (1981) 1
SCC 722. Hon’ble Apex Court in Para-9 and 11 of the
decision has held as follows:-
“9. The tests for determining as to when a corporation
can be said to be an instrumentality or agency of
Government may now be culled out from the judgment in
the International Airport Authority case [(1979) 3 SCC
489] . These tests are not conclusive or clinching, but they
are merely indicative indicia which have to be used with
care and caution, because while stressing the necessity
of a wide meaning to be placed on the expression “other
authorities”, it must be realised that it should not be
stretched so far as to bring in every autonomous body
which has some nexus with the Government within the
sweep of the expression. A wide enlargement of the
meaning must be tempered by a wise limitation. We may
summarise the relevant tests gathered from the decision
in the International Airport Authority case [(1979) 3 SCC
489] as follows:
“(1) One thing is clear that if the entire share capital of
the corporation is held by Government, it would go a long
way towards indicating that the corporation is an
instrumentality or agency of Government. (SCC p. 507,
para 14)
(2) Where the financial assistance of the State is so much
as to meet almost entire expenditure of the corporation, it
would afford some indication of the corporation being
impregnated with Governmental character. (SCC p. 508,
para 15)Page 43 of 60
// 44 //(3) It may also be a relevant factor … whether the
corporation enjoys monopoly status which is State
conferred or State protected. (SCC p. 508, para 15)
(4) Existence of deep and pervasive State control may
afford an indication that the corporation is a State agency
or instrumentality. (SCC p. 508, para 15)
(5) If the functions of the corporation are of public
importance and closely related to Governmental
functions, it would be a relevant factor in classifying the
corporation as an instrumentality or agency of
Government. (SCC p. 509, para 16)
(6) ‘Specifically, if a department of Government is
transferred to a corporation, it would be a strong factor
supportive of this inference’ of the corporation being an
instrumentality or agency of Government.” (SCC p. 510,
para 18)
If on a consideration of these relevant factors it is found
that the corporation is an instrumentality or agency of
Government, it would, as pointed out in the International
Airport Authority case [(1979) 3 SCC 489] , be an
“authority” and, therefore, ‘State’ within the meaning of
the expression in Article 12.
xxxx xxxx xxxx xxxx
11. We may point out that it is immaterial for this
purpose whether the corporation is created by a statute
or under a statute. The test is whether it is an
instrumentality or agency of the Government and not as
to how it is created. The inquiry has to be not as to how
the juristic person is born but why it has been brought
into existence. The corporation may be a statutory
corporation created by a statute or it may be a
government Company or a Company formed under the
Companies Act, 1956 or it may be a society registered
under the Societies. Registration Act, 1860 or any other
similar statute. Whatever be its genetical origin, it would
be an “authority” within the meaning of Article 12 if it is
an instrumentality or agency of the Government and that
would have to be decided on a proper assessment of the
facts in the light of the relevant factors. The concept of
instrumentality or agency of the Government is not
limited to a corporation created by a statute but is equally
applicable to a Company or society and in a given case it
would have to be decided, on a consideration of the
relevant factors, whether the Company or society is an
instrumentality or agency of the Government so as to
come within the meaning of the expression “authority” in
Article 12.
Page 44 of 60
// 45 //
4.2. Reliance was also placed to a decision of the
Hon’ble Apex Court in the case of Andi Mukta
Sadguru Shree Muktajee Vandas Swami Suvarna
Jayanti Mahotsav Smarak Trust Vs. V.R. Rudani,
(1989) 2 SCC 691. Hon’ble Apex Court in Para-16 to
20 has held as follows:-
“16. The law relating to mandamus has made the most
spectacular advance. It may be recalled that the remedy
by prerogative writs in England started with very limited
scope and suffered from many procedural
disadvantages. To overcome the difficulties, Lord
Gardiner (the Lord Chancellor) in pursuance of Section
3(1)(e) of the Law Commission Act, 1965, requested the
Law Commission “to review the existing remedies for the
judicial control of administrative acts and omissions with
a view to evolving a simpler and more effective
procedure”. The Law Commission made their report in
March 1976 (Law Commission Report No. 73). It was
implemented by Rules of Court (Order 53) in 1977 and
given statutory force in 1981 by Section 31 of the
Supreme Court Act, 1981. It combined all the former
remedies into one proceeding called Judicial Review. Lord
Denning explains the scope of this “judicial review”:
“At one stroke the courts could grant whatever relief was
appropriate. Not only certiorari and mandamus, but also
declaration and injunction. Even damages. The procedure
was much more simple and expeditious. Just a summons
instead of a writ. No formal pleadings. The evidence was
given by affidavit. As a rule no cross-examination, no
discovery, and so forth. But there were important
safeguards. In particular, in order to qualify, the
applicant had to get the leave of a judge.
The statute is phrased in flexible terms. It gives scope for
development. It uses the words “having regard to”. Those
words are very indefinite. The result is that the courts are
not bound hand and foot by the previous law. They are to
“have regard to” it. So the previous law as to who are —
and who are not — public authorities, is not absolutely
binding. Nor is the previous law as to the matters in
respect of which relief may be granted. This means thatPage 45 of 60
// 46 //the judges can develop the public law as they think best.
That they have done and are doing.” [ See The Closing
Chapter by Rt. Hon. Lord Denning, p. 122]
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 statute. So government
departments, local 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”.
18. Article 226 reads:
“226. Power of High Courts to issue certain writs.–(1)
Notwithstanding anything in Article 32, every High Court
shall have power, throughout the territories in relation to
which it exercises jurisdiction, to issue to any person or
authority including in appropriate cases, any
Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, or
any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose.
19. The scope of this article has been explained by
Subba Rao, J., in Dwarkanath v. ITO [(1965) 3 SCR 536] :
(SCR pp. 540-41)
“This article is couched in comprehensive phraseology
and it ex-facie confers a wide power on the High Courts
to reach injustice wherever it is found. The Constitution
designedly used a wide language in describing the
nature of the power, the purpose for which and the
person or authority against whom it can be exercised. It
can issue writs in the nature of prerogative writs as
understood in England; but the scope of those writs also
is widened by the use of the expression “nature”, for the
said expression does not equate the writs that can be
issued in India with those in England, but only draws an
analogy from them. That apart, High Courts can also
issue directions, orders or writs other than the
prerogative writs. It enables the High Court to mould the
reliefs to meet the peculiar and complicated requirementsPage 46 of 60
// 47 //of this country. Any attempt to equate the scope of the
power of the High Court under Article 226 of the
Constitution with that of the English courts to issue
prerogative writs is to introduce the unnecessary
procedural restrictions grown over the years in a
comparatively small country like England with a unitary
form of Government into a vast country like India
functioning under a federal structure. Such a construction
defeats the purpose of the article itself.”
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 Article 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.”
4.3. Reliance was also placed to a decision of the
Hon’ble Apex Court in the case of Balmer Lawrie &
Co. Ltd. Vs. Partha Sarathi Sen Roy, (2013) 8 SCC
345. Hon’ble Apex Court in Para-21 to 24 and 28 has
held as follows:-
“21. A public authority is a body which has public or
statutory duties to perform, and which performs such
duties and carries out its transactions for the benefit of the
public, and not for private profit. Article 298 of the
Constitution provides that the executive power of the Union
and the State extends to the carrying on of any business
or trade. A public authority is not restricted to the
Government and the legislature alone, and it includes
within its ambit, various other instrumentalities of StatePage 47 of 60
// 48 //action. The law may bestow upon such organisation the
power of eminent domain. The State in this context, may
be granted tax exemption, or given monopolistic status for
certain purposes. The “State” being an abstract entity, can
only act through an instrumentality or an agency of
natural or juridical persons. The concept of an
instrumentality or agency of the Government is not limited
to a corporation created by a statute, but is equally
applicable to a company, or to a society. In a given case,
the court must decide, whether such a company or society
is an instrumentality or agency of the Government, so as to
determine whether the same falls within the meaning of
the expression “authority”, as mentioned in Article 12 of
the Constitution, upon consideration of all relevant factors.
22. In light of the aforementioned discussion, it is evident
that it is rather difficult to provide an exhaustive definition
of the term “authorities”, which would fall within the ambit
of Article 12 of the Constitution. This is precisely why only
an inclusive definition is possible. It is in order to keep
pace with the broad approach adopted with respect to the
doctrine of equality enshrined in Articles 14 and 16 of the
Constitution, that whenever possible courts have tried to
curb the arbitrary exercise of power against individuals by
centres of power, and therefore, there has been a
corresponding expansion of the judicial definition of the
term “State”, as mentioned in Article 12 of the Constitution.
23. In light of the changing socio-economic policies of this
country, and the variety of methods by which government
functions are usually performed, the court must examine,
whether an inference can be drawn to the effect that such
an authority is in fact an instrumentality of the State under
Article 12 of the Constitution. It may not be easy for the
court, in such a case, to determine which duties form a
part of private action, and which form a part of State
action, for the reason that the conduct of the private
authority may have become so entwined with
governmental policies, or so impregnated with
governmental character, so as to become subject to the
constitutional limitations that are placed upon State action.
Therefore, the court must determine whether the aggregate
of all relevant factors once considered, would compel a
conclusion as regards the body being bestowed with State
responsibilities.
24. When we discuss “pervasive control”, the term
“control” is taken to mean check, restraint or influence.
Control is intended to regulate, and to hold in check, or to
restrain from action. The word “regulate”, would mean to
control or to adjust by rule, or to subject to governingPage 48 of 60
// 49 //principles. (Vide State of Mysore v. Allum
Karibasappa [(1974) 2 SCC 498 : AIR 1974 SC 1863] , U.P.
Coop. Cane Unions Federations v. West U.P. Sugar Mills
Assn. [(2004) 5 SCC 430 : AIR 2004 SC 3697] , Zee
Telefilms Ltd. [Zee Telefilms Ltd. v. Union of India, (2005) 4
SCC 649 : AIR 2005 SC 2677] and Union of India v. Asian
Food Industries [(2006) 13 SCC 542 : AIR 2007 SC 750] .)xxxx xxxx xxxx xxxx
28. In order to determine whether an authority is
amenable to writ jurisdiction except in the case of habeas
corpus or quo warranto, it must be examined, whether the
company/corporation is an instrumentality or an agency of
the State, and if the same carries on business for the
benefit of the public; whether the entire share capital of the
company is held by the Government; whether its
administration is in the hands of a Board of Directors
appointed by the Government; and even if the Board of
Directors has been appointed by the Government, whether
it is completely free from governmental control in the
discharge of its functions; whether the company enjoys
monopoly status; and whether there exists within the
company, deep and pervasive State control. The other
factors that may be considered are whether the functions
carried out by the company/corporation are closely related
to governmental functions, or whether a department of the
Government has been transferred to the
company/corporation, and the question in each case,
would be whether in light of the cumulative facts as
established, the company is financially, functionally and
administratively under the control of the Government. In
the event that the Government provides financial support
to a company, but does not retain any control/watch over
how it is spent, then the same would not fall within the
ambit of exercising deep and pervasive control. Such
control must be particular to the body in question, and not
general in nature. It must also be deep and pervasive. The
control should not, therefore, be merely regulatory.”
4.4. Reliance was also placed to a decision of the
Hon’ble Apex Court in the case of Ravi Khokar & Ors.
Vs. Union of India and Others, 2026 SCC OnLine SC
372. Hon’ble Apex Court in Para-7, 7.1, 16 and 17 has
held as follows:-
Page 49 of 60
// 50 //
“7. Since the advent of the Constitution, the question of
whether a particular body can or cannot be recognised
as ‘State’ within the meaning of Article 1211 has arisen
time and again. Initially, this Court adopted a narrow
and formalistic approach focusing on whether the body
concerned which was created under a statute was part
of the traditional Government structure. Over the time
however, as functions of the Government expanded
multi-fold there was a shift in this approach. State
instrumentalities, corporations and autonomous bodies
were recognised as covered under this Article, with the
shift to a functional and purposive analysis. The test to
be satisfied pertained to the nature of functions,
character of activity, degree of governmental control.
This ensured that the breadth or scope of examination
when this question arises is not limited to
ownership/origin but is instead informed by
accountability, the rule of law in furtherance of practical
governance. It shall be useful to refer to certain cases to
exemplify the requirements that need to be established
for an organization be held to be “State”.
7.1. P.N Bhagwati J. (as His Lordship then was) writing
for the Court in Ramana Dayaram
Shetty v. International Airport Authority of India12,
observed:
“14. A corporation may be created in one of two ways.
It may be either established by statute or incorporated
under a law such as the Companies Act, 1956 or the
Societies Registration Act, 1860. Where a corporation is
wholly controlled by Government not only in its policy-
making but also in carrying out the functions entrusted
to it by the law establishing it or by the charter of its
incorporation, there can be no doubt that it would be an
instrumentality or agency of Government. But ordinarily
where a corporation is established by statute, it is
autonomous in its working, subject only to a provision,
oftentimes made, that it shall be bound by any
directions that may be issued from time to time by
Government in respect of policy matters. So also a
corporation incorporated under law is managed by a
board of directors or committees of management in
accordance with the provisions of the statute under
which it is incorporated. When does such a corporation
become an instrumentality or agency of Government? Is
the holding of the entire share capital of the corporation
by Government enough or is it necessary that in
addition, there should be a certain amount of direct
control exercised by Government and, if so, what should
be the nature of such control? Should the functionsPage 50 of 60
// 51 //which the corporation is charged to carry out possess
any particular characteristic or feature, or is the nature
of the functions immaterial? Now, one thing is clear that
if the entire share capital of the corporation is held by
Government, it would go a long way towards indicating
that the corporation is an instrumentality or agency of
Government. But, as is quite often the case, a
corporation established by statute may have no shares
or shareholders, in which case it would be a relevant
factor to consider whether the administration is in the
hands of a board of directors appointed by Government,
though this consideration also may not be
determinative, because even where the directors are
appointed by Government, they may be completely free
from governmental control in the discharge of their
functions. What then are the tests to determine whether
a corporation established by statute or incorporated
under law is an instrumentality or agency of
Government? It is not possible to formulate an all-
inclusive or exhaustive test which would adequately
answer this question. There is no cut and dried formula
which would provide the correct division of corporations
into those which are instrumentalities or agencies of
Government and those which are not.”
xxxx xxxx xxxx xxxx
16. We are unable to accept this contention. It may be
that in so far as financial aspects of AFGIS are
concerned, the Government may not have a direct role
however for a body to be held to be a ‘State’ it is the
cumulative effect and impact of deep and pervasive
control, financial and administrative control along with
other factors such as carrying out of public duty.
17. We are of the considered view that AFGIS does
indeed perform a public duty. The protection and
welfare of armed forces personnel is a core government
function. The role of the armed forces is directly linked
to the sovereignty and security of the nation and in
protecting the same members of the forces are required
to adhere to, abide by, and maintain a strict set of rules,
unquestionable conduct, and at times in the most severe
and adverse circumstances. Thus, providing insurance
coverage is a public function as it addresses a collective
obligation the State has towards a defined public class
whose service is indispensable. The body, in effect,
becomes a conduit for the discharge of that obligation.
The role of the State in protecting them does not end
upon their superannuation from service for the life of a
person from the forces is forever shaped by their time in
service. Insurance to service members is a critical
instrument for safeguarding their physical, mental well-
Page 51 of 60
// 52 //
being, dignity and economic security. It operates as an
assurance of protection and support in case
contingencies such as disability or illness befall them or
even untimely death which is a real possibility in these
services. The fact that healthcare, rehabilitation,
support to dependants is available readily, is
undoubtedly an aspect that gives great peace of mind to
the member of service enabling them to carry out their
duties without worry, at least in this regard.”
4.5. Reliance was also placed to a decision of the
Hon’ble Apex Court in the case of Dr. Uttam Kumar
Samanta Vs. KIIT University & Ors., 2014 SCC
OnLine Ori 398. Hon’ble Apex Court in Para-20 to 24
has held as follows:-
“20. Black’s Law Dictionary (7th Edn.) defines
“instrumentality” to mean “a means or agency through
which a function of another entity is accomplished, such
as a branch of a governing body”. “Agency” is defined
as:
“A fiduciary relationship created by express or implied
contract or by law, in which one party (the agent) may
act on behalf of another party (the principal) and bind
that other party by words or actions.”
Thus instrumentality and agency are the two terms
which to some extent overlap in their meaning;
“instrumentality” includes “means” also, which
“agency” does not, in its meaning. “Quasigovernmental
agency” is “a government-sponsored enterprise or
corporation (sometimes called a government-controlled
corporation)”. Authority, as Webster’s Comprehensive
Dictionary (International Edition) defines, is “the person
or persons in whom government or command is vested;
often in the plural”. The applicable meaning of the word
“authority” given in Webster’s Third New International
Dictionary, is “a public administrative agency or
corporation having quasi-governmental powers and
authorized to administer a revenue-producing public
enterprise”. This was quoted with approval by the
Constitution Bench in RSEB case wherein the Bench
held : (AIR p. 1862, para 5)Page 52 of 60
// 53 //
“5. This dictionary meaning of the word ‘authority’ is
clearly wide enough to include all bodies created by a
statute on which powers are conferred to carry out
governmental or quasi-governmental functions. The
expression ‘other authorities’ is wide enough to include
within it every authority created by a statute and
functioning within the territory of India, or under the
control of the Government of India; and we do not see
any reason to narrow down this meaning in the context
in which the words ‘other authorities’ are used in Article
12 of the Constitution.”
21. Here it will be of great significance to quote a
passage from the Constitutional Law of India by H.M.
Seervai (Para-9.8. Page-439):
“9.8. Since the new doctrine has been propounded by
judges without asking and answering the question
“What is meant by the equal protection of the law’s?
“we must answer that question. If all men were created
equal, and remained equal throughout their lives, then
the same laws would apply to all men. But we know
that men are unequal; consequently a right conferred on
persons that they shall not be denied “the equal
protection of the laws” cannot mean the protection of the
same laws for all. It is here that the doctrine of
classification, (the old doctrine) steps in, and gives
content and significance to the guarantee of the equal
protection of the laws. According to that doctrine equal
protection of the laws must mean the protection of equal
laws for all persons similarly situated. To separate
persons similarly situated from those who are not, we
must discriminate, that is, “act on the basis of a
difference between” persons, or “observe distinctions
carefully” between persons who are, and persons who
are not similarly situated. But as the distinction is to be
made for the purpose of making a law, how must the
distinction be related to the law? This is answered by
the central test for a permissible classification:
“Permissible classification must satisfy two conditions,
namely, (i) it must be founded on an intelligible
differentia which distinguishes persons or things that
are grouped together from others left out of the group,
and (ii) the differentia must have a rational relation to
the object sought to be achieved by the statute in
question”, with the qualification that” the differentia and
the object are different(so) that the object by itself
cannot be the basis of the classification. A law based on
a permissible classification fulfils the guarantee of the
equal protection of the laws and is valid; a law based
on an impermissible classification violates that
guarantee and is void.”
Page 53 of 60
// 54 //
22. The above judgments make it clear that the
teachers who are arms of the institutions are entitled to
enforce their right availing the remedy provided under
Article 226. This otherwise means that in a just and
proper case where injustice is palpable, the Court
should not hesitate to exercise its powers under Article
226 to remove the same. At the cost of repetition, I once
again observe that in view of my discussion in
paragraphs 12 to 18 the opposite party no. 1 University
is unambiguously imparting a public duty by clearly
shouldering a sovereign power of the State and it has
an public ailment. Law as laid down by our own High
Court (supra) makes it clear that powers of Article 226
can be invoked even where there is violation of natural
justice while terminating teachers. The decisions shown
by the opposite parties counsels are clearly
distinguishable from the point of view that case
of Xavier Institute is wholly unaided private institution
having passed not taking into account/consideration the
catena of decisions operating in the filed referred to
hereinabove whereas other decisions are simply in
respect of non-statutory, non-aided institutions having
no public ailment or public duty at all. None of the
institutions involved in the decision cited by the opposite
parties is that of a Deemed University status. To add to
it here it is a university created under the U.G.C. Act.
23. It also is, thus, clear that the old and conservative
view regarding the maintainability of writs against the
State or its instrumentalities is giving way to “a liberal
meaning”. The power under Art. 226 is no longer
confined to the issue of writs against statutory
authorities and instrumentalities of the State. It covers
‘any other person or body performing public duty’.
Deemed Universities are supplementing the effort of the
State. These cannot survive or subsist without
recognition and/or affiliation. The bodies which grant
recognition are required to ensure that the institution
complies with Art. 14 of the Constitution. These decision
represent a Quantum jump-from “the tests’ in Ajay
Hasia v. Khalid Mujib, AIR 1981 SC 487, to a liberal
meaning to the term “authority” in Article 226.
24. Further applying the ratio submitted by learned
counsel for KIIT vide (2002) 5 SCC 111 it is seen not
only the body of the KIIT members from Central
Government as well as State Government but, its aim
and object is to provide a greater public service in the
side of higher education, the University Grant
Commission as well as the All India Technical Council of
India has its own control over the particular institution
and it also receives aids to a great extent from either
Page 54 of 60
// 55 //
Central Government and Central Governmental
Agencies as clearly narrated in para-13 of this
judgment. It also required a good number of faculties
from Central Government and Central Government
affiliated institutions. It is not only a Deemed University
under Section 3 of the U.G.C. Act, 1956 but it has been
declared to be an university under the notification of the
Central Government followed with a gazette notification
by Central Government. The university on its own
admission as clearly appearing from respective
documents establishes that the university enjoys 10% –
20% or more from such aids as over head and it utilizes
the same for developmental purpose of the university.
From the details narrated hereinabove, the opposite
party university is not only enjoying the powers and
privileges of the State but also subjected to the
limitations and obligations of the State. By virtue of its
creation under the U.G.C. Act and then being notified by
the Union of India in the official gazette accepting the
same to be a Deemed University it can neither remain
outside the purview of the “State” nor from the purview
of the “other authority” and as such is amenable under
Article 226 of the Constitution of India.
To conclude point no. i, it may be stated that
classification is permissible when two conditions are
satisfied, that is
(i) it must be founded on an intelligible differentia which
distinguishes persons or things that are grouped
together from other and (ii) the differentia must have a
rational relation to the object sought to be achieved. In
the instant case, the lecturers of the private institution
receiving grant from the Centre and Central Agencies,
recognized by State created under U.G.C. Act, remains
under control of Central Government, University Grants
Commission as well as the authorities under AICTE Act
are discharging the same duties as that of the lecturers
of Govt. institutions or of the institutions which are
created under the statute; and they all are discharging
‘public duty’ in aid of constitutional mandate. Merely
because they are not employees of the State Govt. or of
the institutions created under the statute, it would be an
impermissible classification to place them as a different
group to deny them the remedies under Article 226 for
preservation and protection of their service rights. Any
decision the way other is likely to have a deterrent
effect on the objective sought to be achieved. The duty
performed by two sets of lecturers is in aid of
constitutional mandate and, therefore, it would be
unjust to classify the teachers of Deemed institutions as
a class distinct from the other. Service holders having
Page 55 of 60
// 56 //
similar stake cannot be discriminated failing such
prohibition it will have greater effect on the ultimate
duty to educate the students as one cannot forget that
the teachers are the most vital organ of the whole
teaching system and if this vital organ fails then may be
whole system will collapse.
Besides above, I also find the petitioner also becomes
remediless as he has no remedy of Appeal to the higher
Authority in view of no such provision either in the
memorandum of Article of Association or in Conduct and
Discipline Rules as provided at Chapter-II of KIIT
University Human Resources Manual. Considering such
an aspect a Constitution Bench of Hon’ble Apex Court
in T.M.A. Pai Foundation v. State of Karnataka (2002) 8
SCC 481 directed setting up of Appellate Tribunal in
each district of each State to hear appeals over the
decisions taken by the Disciplinary Bodies of even
purely private Education Institutions. While directing so
the Hon’ble Apex Court emphasized that speedy
resolution of the disputes between the Teachers and the
Managerial is in the interest of all, i.e., students,
Management as well as the concerned Teachers. No
such Tribunal having been set up in this State as on
date, I find the petitioner becomes remediless.
Thus while answering the point no. i in affirmative, I
declare that the opposite party no. 1 university being a
creature of a statute and since performing public duty
comes well within the meaning of “State” under Article
12 of the Constitution of India and its important organ
the Teaching Staffs as a part of such public duty as
such their grievances can be amenable to the writ
jurisdiction of High Court in exercise of jurisdiction
under Article 226 of the Constitution of India.”
4.6. Bereft of the aforesaid decisions so cited (supra),
learned counsel for the petitioner contended that
taking into account the objective and reason behind
incorporation of Opp. Party No.3, the State of Odisha
has deep and pervasive control over Opp. Party No.3.
Page 56 of 60
// 57 //
4.7. It is also contended that as per Memorandum of
Association so enclosed to the Additional Affidavit
dated 13.05.2026, the equity shares (Total:12,00,000)
are divided equally between the Govt. of Odisha, Higher
Education Department represented through different
officers and Maharashtra Knowledge Corporation
Limited represented by its Managing Director.
4.8. Since State of Odisha has got 50% share of Opp.
Party No.3, it cannot be held that Opp. Party No.3 is
not rendering public duty. It is also contended that as
per the Memorandum of Association of Opp. Party
No.3, the Main Object of the Company is as follows:-
“To develop a new educational paradigm which can
plan, implement, supervise and regulate the developing
needs of the masses in the emerging knowledge era of
the twenty first century and in the emerging context of
liberalization, privatization and globalization in the State
of Odisha by promoting the IT enabled education
programs as practiced in the School & Mass Education
Department. Higher Education, Technical and Medical
Education under Government of Odisha and to take all
such action as may be deemed to be necessary to provide
high quality education including better connectivity,
computer skills and co-ordination amongst all educational
institutions, universities, students and the Government,
as well as to obtain sponsorships, institutional backups
and financial support for the present and future programs
and responsibilities accepted on behalf of the State
Government.”
Page 57 of 60
// 58 //
4.9. Making all these submissions, learned counsel for
the petitioner contended that against the impugned
order, the Writ Petition is very much maintainable
against Opp. Party No.3.
5. To the decisions and submission made by the
learned counsel appearing for the petitioner, learned
Sr. Counsel appearing for O.P. No.3 made further
submission contending inter alia that a decision is an
authority for which it is decided and not what can
logically be deduced therefrom. A little difference in
facts or additional facts make a lot of difference in the
precedential value of a decision.
5.1. It is accordingly contended that applicability of
the decisions relied on by the learned counsel for the
petitioner has to be tested taking into account the facts
involved in the present case with the issue involved. In
support of such submission, reliance was placed to a
decision of the Hon’ble Apex Court in the case of
Bhavnagar University vs. Palitana Sugar Mill (P) Ltd.,
Page 58 of 60
// 59 //
reported in (2003) 2 SCC 111. Hon’ble Apex Court in
Para-59 of the judgment has held as follows:-
“59. A decision, as is well known, is an authority for which
it is decided and not what can logically be deduced
therefrom. It is also well settled that a little difference in
facts or additional facts may make a lot of difference in the
precedential value of a decision. [See Ram Rakhi v. Union of
India [AIR 2002 Del 458 (FB)] , Delhi Admn. (NCT of
Delhi) v. Manohar Lal [(2002) 7 SCC 222 : 2002 SCC (Cri)
1670 : AIR 2002 SC 3088] , Haryana Financial
Corpn. v. Jagdamba Oil Mills [(2002) 3 SCC 496 : JT (2002) 1
SC 482] and Nalini Mahajan (Dr) v. Director of Income Tax
(Investigation) [(2002) 257 ITR 123 (Del)].”
6. Having heard learned counsel for the parties and
considering the submission made, this Court finds that
the present Writ Petition has been filed challenging
order dated 21.01.2021, so issued by Opp. Party No.3
under Annexure-1. Though it is not disputed that Opp.
Party No.3 was incorporated as a Public Limited
Company, but taking into account the fact that Govt. in
the Department of Higher Education is holding 50% of
the share and the Board of Directors of the Opp. Party
No.3 comprises of various Higher Authorities of the
State, placing reliance on the decisions relied on by the
learned counsel appearing for the petitioner so cited
(supra), more particularly the decision in the case of
Page 59 of 60
// 60 //
Ravi Khokar, it is the view of this Court that State of
Odisha has got pervasive control over the Opp. Party
No.3-Corporation.
6.1. Not only that taking into account the main object
of Opp. Party No.3 so reflected in its Memorandum of
Association, it cannot be held that Opp. Party No.3 is
not discharging public duty.
6.2. In view of the aforesaid analysis, this Court is of
the view that the Writ Petition is very much
maintainable against Opp. Party No.3.
7. In view of the aforesaid finding of this Court with
regard to maintainability, the matter be placed for
hearing on merit. The Issue with regard to
maintainability is accordingly decided.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 9th July, 2026/Basudev
Signature Not Verified
Digitally Signed
Signed by: BASUDEV SWAIN Page 60 of 60
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 10-Jul-2026 15:41:18
