Patna High Court
Abhshek Kumar vs The State Of Bihar on 9 July, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No. 9161 of 2022
======================================================
Abhshek Kumar Son of Subodh Kumar Choudhary resident of Bagha, Bypass
Road, Ward No. 29, P.S.- Begusarai, District- Begusarai.
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Education
Department, Government of Bihar, Patna.
2. The Secretary Higher Education, Education Department, Government of
Bihar, Patna.
3. The Director Higher Education, Education Department, Government of
Bihar, Patna.
4. Lalit Narayan Mithila University, Darbhanga through the Vice Chancellor.
5. The Vice Chancellor, Lalit Narayan Mithila University.
6. The Patliputra University, Patna through the Vice Chancellor.
7. M.M. Rahmani, B.Ed College, Begusarai through the Managing Committee.
8. The Principal, M.M. Rahmani, B.Ed College, Begusarai
9. Sukhdeo Narayan, Lalbahadur Sitaram Memorial B.Ed. College, Nalanda.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Krishna Kant Singh, Advocate
For the State : Mr. Shankar Kumar Thakur, AC to GP-27
For the Respondent
No. 7 & 8 : Mr. Ravi Bhardwaj, Advocate
For Respondent Univ. : Mr. Iqbal Asif Niazi, Advocate
For Respondent No. 9 : Mr. Suresh Mishra, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
ORAL JUDGMENT
Date : 09-07-2026
Heard the parties.
2. The present writ petition has been filed for the
following reliefs:-
“(i) For issuance of the writ in the nature
of certiorari for quashing the letter
dated 07.05.2022 issued under the
signature of the Principal Μ.Μ.
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
2/31
College, Rahmani B.Ed.
Damodarpur, Begusarai whereby
service the of the petitioner who
working was as Assistant Professor
in the college in question was
terminated illegally contrary to law
and based on wrong facts and
without any proper inquiry.
(ii) For further that after setting aside the
termination letter dated 07.05.2022
the petitioner directed service to be
be reinstated in forthwith with all
consequential benefits as if he has
never been terminated from service
and has remained all along in
service and further to restrain the
concerned authorities from filling
up the post of English Subject and if
in between any selection is made the
same be declared illegal.
(iii) For further restraining the
respondent authorities from taking
any steps with respect to recovery of
the salary drawn by the petitioner
and further to hold that the legal
notice dated 16.05.2022 issued by
Dr. Nand Kishore Singh, Advocate
for recovery of the salary paid has
no legal sanctity in the eye of law
muchless the same is beyond the
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
3/31
purview of service jurisprudence.
(iv) For further directing the concerned
respondent authorities to look into
the grievance of the petitioner and
take appropriate action against the
persons responsible for illegal
action and also who have
misappropriated the government
money by manipulating the records
as also by impersonating.”
3. The matter has been heard on different dates by
learned Co-ordinate Benches of this Court and even by this
Court. Affidavits have been filed on behalf of the different
contesting respondents, wherein a preliminary objection with
regard to maintainability of the writ petition has been raised.
When the matter was taken up on 18.06.2026, the learned
counsels appearing on behalf of the contesting respondents i.e.
Respondent Nos. 7 to 9 raised objection with regard to
maintainability of the writ petition, on the ground that the reliefs
prayed for in the present writ petition have been sought for
against a college, which is an affiliated unit of the Patliputra
University, Patna and the dispute is related to the termination of
services of the petitioner, which is entirely a service dispute and
since the relief has been prayed for against an affiliated college,
which is not a State within the meaning of Article 12 of the
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
4/31
Constitution of India, therefore, the writ petition is not
maintainable.
4. The learned counsel for the petitioner submits
that the writ petition filed by the petitioner is maintainable
before this Hon’ble Court in view of the settled law in this
regard by the Hon’ble Supreme Court of India.
5. In support of his contention, the learned counsel
for the petitioner refers to and relies upon a judgment of the
Hon’ble Supreme Court of India reported in (1989) 2 SCC 691
(Andi Mukta Sadguru Shree Muktajee Vandas Swami
Suvarna Jayanti Mahotsav Smarak Trust & Ors. versus V. R.
Rudani and Ors.), wherein in paragraph no. 17, the Hon’ble
Supreme Court of India has held as follows:-
“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
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
5/31powers 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”.”
6. The learned counsel for the petitioner further
refers to and relies upon a judgment of the of the Hon’ble
Supreme Court of India reported in (2012) 12 SCC 331
(Ramesh Ahluwalia v. State of Punjab & Ors.), wherein in
paragraph nos. 11 to 14, the Hon’ble Supreme Court of India
has held as follows:-
11. On the other hand, Mr S.S. Ray, learned
counsel appearing on behalf of
Respondents 2 to 4 submitted that no writ
petition would be maintainable against the
respondent institution. In support of his
submission, the learned counsel has placed
reliance on Pradeep Kumar Biswas v.
Indian Institute of Chemical Biology
[(2002) 5 SCC 111 : 2002 SCC (L&S) 633]
particularly making reference to para 40 of
the aforesaid judgment. Para 40 of the
aforesaid judgment is extracted hereunder:
(SCC p. 134)
“40. The picture that ultimately emerges is that
the tests formulated in Ajay Hasia [Ajay
Hasia v. Khalid Mujib Sehravardi, (1981) 1
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
6/31SCC 722 : 1981 SCC (L&S) 258] are not a
rigid set of principles so that if a body falls
within any one of them it must, ex
hypothesi, be considered to be a State
within the meaning of Article 12. The
question in each case would be–whether
in the light of the cumulative facts as
established, the body is financially,
functionally and administratively
dominated by or under the control of the
Government. Such control must be
particular to the body in question and must
be pervasive. If this is found then the body
is a State within Article 12. On the other
hand, when the control is merely regulatory
whether under statute or otherwise, it
would not serve to make the body a State.”
12. We have considered the submissions made by
the learned counsel for the parties. In our
opinion, in view of the judgment rendered
by this Court in Andi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti
Mahotsav Smarak Trust [(1989) 2 SCC
691] there can be no doubt that even a
purely private body, where the State has no
control over its internal affairs, would be
amenable to the jurisdiction of the High
Court under Article 226 of the Constitution,
for issuance of a writ of mandamus.
Provided, of course, the private body is
performing public functions which are
normally expected to be performed by the
State authorities.
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
7/31
13. In the aforesaid case, this Court was also
considering a situation where the services
of a Lecturer had been terminated who was
working in the college run by the Andi
Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak
Trust. In those circumstances, this Court
has clearly observed as under: (V.R.
Rudani case [(1989) 2 SCC 691] , SCC pp.
700-701, paras 20 & 22)
“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.
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
8/31
***
22. Here again we may point out that mandamus
cannot be denied on the ground that the
duty to be enforced is not imposed by the
statute. Commenting on the development of
this law, Professor de Smith states: ‘To be
enforceable by mandamus a public duty
does not necessarily have to be one
imposed by statute. It may be sufficient for
the duty to have been imposed by charter,
common law, custom or even contract.’
[ S.A. de Smith, Judicial Review of
Administrative Action (4th Edn., Stevens &
Sons Ltd., London 1980) at p. 540] We
share this view. The judicial control over
the fast expanding maze of bodies affecting
the rights of the people should not be put
into watertight compartment. It should
remain flexible to meet the requirements of
variable circumstances. Mandamus is a
very wide remedy which must be easily
available ‘to reach injustice wherever it is
found’. Technicalities should not come in
the way of granting that relief under Article
226. We, therefore, reject the contention
urged for the appellants on the
maintainability of the writ petition.”
The aforesaid observations have been
repeated and reiterated in numerous
judgments of this Court including the
judgments in Unni Krishnan [(1993) 1 SCC
645] and Zee Telefilms Ltd. [(2005) 4 SCC
649] brought to our notice by the learned
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
9/31
counsel for the appellant, Mr Parikh.
14. In view of the law laid down in the
aforementioned judgments of this Court,
the judgment of the learned Single Judge
[Ramesh Ahluwalia v. State of Punjab, WP
(C) No. 11691 of 2009, decided on 5-8-
2009 (P&H)] as also the Division Bench
[Ramesh Ahluwalia v. State of Punjab, LPA
No. 368 of 2010, order dated 25-10-2010
(P&H)] of the High Court cannot be
sustained on the proposition that the writ
petition would not be maintainable merely
because the respondent institution is a
purely unaided private educational
institutio14. In view of the law laid down in
the aforementioned judgments of this
Court, the judgment of the learned Single
Judge [Ramesh Ahluwalia v. State of
Punjab, WP (C) No. 11691 of 2009,
decided on 5-8-2009 (P&H)] as also the
Division Bench [Ramesh Ahluwalia v. State
of Punjab, LPA No. 368 of 2010, order
dated 25-10-2010 (P&H)] of the High
Court cannot be sustained on the
proposition that the writ petition would not
be maintainable merely because the
respondent institution is a purely unaided
private educational institution. The
appellant had specifically taken the plea
that the respondents perform public
functions i.e. providing education to
children in their institutions throughout
India.n. The appellant had specifically
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
10/31
taken the plea that the respondents perform
public functions i.e. providing education to
children in their institutions throughout
India.
7. The learned counsel for the petitioner further
refers to and relies upon a judgment of the of the Hon’ble
Supreme Court of India reported in (2020) 14 SCC 449
(Marwari Balika Vidyalaya versus Asha Srivastava & Ors.),
wherein in paragraph no. 16, the Hon’ble Supreme Court of
India has held as follows:-
“16. It is apparent from the aforesaid
decisions that the writ application is
maintainable in such a matter even as
against the private unaided educational
institutions.”
8. Per Contra, the learned counsel appearing on
behalf of the respondent nos. 7 and 8 submits that in view of the
judgment of the Hon’ble Supreme Court of India reported in
(2024) 16 SCC 598 (Army Welfare Education Society, New
Delhi versus Sunil Kumar Sharma & Ors.), the writ petition is
not maintainable since, the Hon’ble Supreme Court of India in
paragraph no. 6, 41 and 42 has held as follows:-
“6. The following two questions of law fall for
our consideration:
6.1. (a) Whether the appellant Army Welfare
Education Society is “State” within
Article 12 of the Constitution of India so
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
11/31as to make a writ petition under Article
226 of the Constitution maintainable
against it? In other words, whether a
service dispute in the private realm
involving a private educational
institution and its employees can be
adjudicated upon in a writ petition filed
under Article 226 of the Constitution?
6.2. (b) Even if it is assumed that the appellant
Army Welfare Education Society is a
body performing public duty amenable
to writ jurisdiction, whether all its
decisions are subject to judicial review
or only those decisions which have
public law element therein can be
judicially reviewed under the writ
jurisdiction?
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,
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
12/31orders or writs 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
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
13/31
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.”
9. The learned counsel for the respondent nos. 7 &
8 submits that in view of the recent judicial pronouncement of
the Hon’ble Supreme Court of India, wherein the judgments
referred to by the learned counsel for the petitioner have been
taken note of, the writ petition is not maintainable and is liable
to be dismissed by this Hon’ble Court at the stage of admission
itself.
10. Similarly, the learned counsel appearing on
behalf of the respondent no. 9 refers to and relies upon a
judgment of the Hon’ble Full Bench of this Court reported in
1987 BLJ 823 (Manju Devi versus District Superintendent of
Education, Bhagalpur & Ors.), wherein the Hon’ble Full
Bench, after considering the maintainability of the matter
related to a teacher in the privately managed school, even
though financially aided by the State, whose services was
terminated, after considering the entire aspect, in paragraph no.
14 has held as follows:-
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
14/31“14. To sum up, the answer to the question put
at the outset is rendered in the negative
and it is held that a teacher in a
privately managed school even though
financially aided by the State, cannot
maintain a writ petition against the
termination of his services by such a
school. Consequently the present writ
petition is dismissed, but there will be no
order as to costs.”
11. The learned counsel appearing on behalf of the
respondent no. 9 further refers to and relies upon a judgment of
the Hon’ble Supreme Court of India reported in (2002) 8 SSC
481 (T.M.A. Pai Foundation & Ors. versus State of Karnataka
& Ors.), wherein in paragraph no. 231, it has been held as
follows:-
“231. Before concluding the matter, it is
necessary to deal with a few more
aspects which relate to the regulatory
measures taken by the Government with
regard to government-aided minority
institutions. In that connection, the State
must see that the regulatory measures of
control of such institutions should be
minimum and there should not be
interference in the internal or day-to-day
working of the management. However,
the State would be justified in enforcing
the standard of education in such
institutions. In case of minority
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
15/31professional institutions, it can also be
stipulated that passing of common
entrance test held by the State agency is
necessary to seek admission. It is for the
reason that the products of such
professional institutions are not only
going to serve the minorities but also the
majority community. So far as the
redressal of grievances of staff and
teachers of minority institutions is
concerned, a mechanism has to be
evolved. Past experience shows that
setting up a tribunal for a particular
class of employees is neither expedient
nor conducive to the interest of such
employees. In that view of the matter,
each District Judge which includes the
Additional District Judge of the
respective district be designated as
Tribunal for redressal of the grievances
of the employee and staff of such
institutions.”
12. The learned counsel for the respondent no. 9
further refers to and relies upon a judgment of the Hon’ble
Supreme Court of India reported in (2012) 12 SCC 331,
(Ramesh Ahluwaliya versus State of Punjab & Ors.), wherein
in paragraph nos. 15 to 17, it has been held as follows:-
“15. We must, however, notice that the learned
Single Judge has dismissed the writ
petition also on the ground that it
involves disputed questions of fact. Mr
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
16/31Ray, learned counsel appearing on
behalf of the respondents has submitted
that the appellant actually has not been
able to contradict any of the proven
facts. According to the learned counsel,
the remedy of the appellant is to file a
civil suit, if so advised. Therefore, the
writ petition has been rightly dismissed
by the High Court. Mr Parikh, learned
counsel for the appellant, however,
submits that the civil suit would not be
an alternative efficacious remedy in the
facts of this case. In support of this
submission, he brought to our notice
certain observations made by a
Constitution Bench of this Court in
T.M.A. Pai Foundation v. State of
Karnataka [(2002) 8 SCC 481] . The
learned counsel pointed out that, in the
aforesaid case, this Court had directed
that the Appellate Tribunal should be set
up in each district of each State to hear
appeals over the decisions taken by the
disciplinary bodies of even purely
private educational institutions. It was
emphasised that speedy resolution of the
disputes between the teachers and the
management is in the interest of all i.e.
students, management as well as the
teachers concerned. It appears that at
the time when the appeal of the
appellant was heard, such a tribunal had
not been set up in the State of Punjab.
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
17/31The appeal filed before the Disciplinary
Committee was also not referred to the
District Judge by the Disciplinary
Committee.
16. We are of the considered opinion that
since the writ petition clearly involves
disputed questions of fact, it is
appropriate that the matter should be
decided by an appropriate
tribunal/court.
17. At this stage, we are informed that the
State of Punjab has set up a tribunal,
namely, Punjab School Education
Tribunal, Mohali, which is empowered
to entertain appeals even where orders
have been passed by the unaided private
educational institutions. In that view of
the matter, the remedy of appeal is
clearly available to the appellant. It
would, therefore, be appropriate for the
appellant to avail the remedy of appeal
before the aforementioned Education
Tribunal.”
13. The learned counsel for the respondent no. 9
further refers to and relies upon a judgment of the Hon’ble
Supreme Court of India reported in (2015) 17 SCC 353
(Committee of Management, Delhi Public School and Anr.
Versus M.K. Gandhi & Ors.) wherein in paragraph no. 4, it has
been held as follows:-
“4. With great respect to the Full Bench of the
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
18/31High Court, we fail to understand the
direction given by the Allahabad High
Court. In our opinion, the direction
given by the Allahabad High Court to
CBSE is totally misconceived and
uncalled for. When the Allahabad High
Court has already held that DPS School
is not a “State” within the meaning of
Article 12 of the Constitution of India
and the writ petition is not maintainable,
there was no necessity for giving a
direction to CBSE which virtually
amounts to granting a declaration in
favour of those teachers whose services
have been terminated. We fail to
appreciate the view taken by the
Allahabad High Court by unnecessarily
complicating the issue by involving
CBSE in a private dispute between the
teachers and DPS. The Allahabad High
Court should have stopped short of
holding that the said DPS is a private
body and the writ is not maintainable.”
14. Similarly, the learned counsel for the
respondent no. 9 refers to and relies upon a judgment of the
Hon’ble Supreme Court of India reported in (2023) 4 SCC 498
(St. Mary’s Education Society & Another Vs. Rajendra Prasad
Bhargava & Ors.), wherein in paragraph nos. 29 to 36, it has
been held as follows:-
“29. Respondent 1 herein has laid much
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
19/31emphasis 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
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
20/31character.
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
Executive Committee of Vaish Degree
College v. Lakshmi Narain [Executive
Committee of Vaish Degree College v.
Lakshmi Narain, (1976) 2 SCC 58 :
1976 SCC (L&S) 176] , 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
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
21/31merely 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 Regina v. St. Aloysius Higher
Secondary School [Regina v. St. Aloysius
Higher Secondary School, (1972) 4 SCC
188 : AIR 1971 SC 1920] , 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
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
22/31
of breach or non-compliance of any of
the Rules 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] :
“… 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 : 1992 Lab IC
2070] , wherein the services of the
petitioner were terminated by the
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
23/31Managing 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
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
24/31
the Affiliation Bye-laws.
36. It needs no elaboration to state that a
school affiliated to CBSE which is
unaided is not a State within 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
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
25/31
Tyres Ltd. v. C.P. Sebastian, (2009) 14
SCC 360 : (2009) 5 SCC (Civ) 358 :
(2010) 1 SCC (L&S) 359] ].”
15. Having considered the rival submissions and
after going through the records, it appears that the petitioner has
filed the present writ petition against the order of termination
dated 07.05.2022, by which his services are said to have been
illegally terminated on the wrong facts and without any enquiry.
Some consequential reliefs, including reinstatement of the
petitioner have been prayed for in the writ petition.
16. From the counter affidavit filed on behalf of the
respondent nos. 7 and 8, it would transpire that the issue of
maintainability has been raised in the writ petition and at the
time of argument on 10.09.2024, the respondents raised an
objection with regard to maintainability of the writ petition in
view of the judgment of Full Bench of this Hon’ble Court in the
case of Manju Devi vs District Superintendent of Education,
Bhagalpur & Ors. reported in 1987 PLJR 962 (Full Bench).
17. When the mater was taken up before this Court,
the issue of maintainability was again raised on 18.06.2026. The
matter was heard at length on the issue of maintainability and
has been fixed for orders on 09.07.2026.
18. The Hon’ble Supreme Court of India in recent
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
26/31
judgments, which have been relied upon by the learned counsel
appearing on behalf of the respondents i.e. St. Mary’s Education
Society (supra) and Army Welfare Education Society, New
Delhi (supra) considered all the judgments referred to and relied
upon by the learned counsel for the petitioner. From perusal of
the judgments referred to by the learned counsel for the
petitioner in the case of Ramesh Ahluwaliya (supra), it would
transpire that that same has been held to be per incuriam by the
Hon’ble Supreme Court of India in the case of St. Mary’s
Education Society (supra), therefore this case cannot be relied
upon for holding the writ petition to be maintainable.
19. So far the judgment relied upon by the learned
counsel for the petitioner i.e. Andi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak
Trust (supra) the same has been considered by the Hon’ble
Supreme Court of India in the case of St. Mary’s Education
Society (supra) and Army Welfare Education Society, New
Delhi (supra) and after considering all the relevant judgments,
including Andi Muka Sadguru (supra) the Supreme Court of
India in a case of St. Mary’s Education Society (supra) in
paragraph nos. 75 to 75.5 has held as follows:-
“75. We may sum up our final conclusions as
under:
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
27/3175.1. 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 d 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
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
28/31
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 9226 in respect of
matter relating to service where they are
not governed or controlled by the
statutory provisions. An educational
institution may perform myriad functions
touching various facets of public life and
in the societal sphere. While such of
those functions as would fall within the
domain of a “public function” or “public
duty” be undisputedly open to challenge
and scrutiny under Article 226 of the
Constitution, the actions or decisions
taken solely within the confines of an
ordinary contract of service, having no
statutory force or backing, cannot be
recognised as being amenable to
challenge under Article 226 of the
Constitution. In the absence of the
service conditions being controlled or
governed by statutory provisions, the
matter would remain in the realm of an
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
29/31
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
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
30/31
the action was essentially of a private
character.”
20. Similarly, the Hon’ble Supreme Court of India
in the case of Army welfare Education Society, New Delhi
(supra) and St. Mary’s Education Society (supra) after
considering the different judgments relied upon by the learned
counsel for the petitioner herein in paragraph nos. 61 to 64
distinguished the case of Marwari Balika Vidyalaya (supra) and
went on to allow the writ petition filed by the Army Welfare
Education Society, New Delhi (supra) with regard to
maintainability of dispute with regard to service condition of the
petitioner therein.
21. In view of the settled proposition of law and in
view of recent judgments of the Hon’ble Supreme Court of
India in the case of St. Mary’s Education Society (supra) and
Army Welfare Education Society, New Delhi (supra), this Court
is of the considered opinion that the writ petition filed by the
petitioner with regard to termination of his service cannot be
maintained before this Hon’ble Court. The college in question
i.e. M.M. Rahmani, B.Ed. College, Begusarai is an affiliated
college of the University and in terms of the orders/judgments
relied upon by the learned counsel for the respondents, the writ
petition cannot be maintained against an affiliated college, since
Patna High Court CWJC No. 9161 of 2022 dt.09-07-2026
31/31
the same is not a State within the meaning of Article 12 of the
Constitution of India.
22. The writ petition filed by the petitioner is
thoroughly misconceived and is accordingly dismissed.
23. Pending application, if any, shall also stands
disposed of.
(Ritesh Kumar, J)
Ajay/Shital/-
AFR/NAFR CAV DATE NA Uploading Date 09.07.2026 Transmission Date NA
