Abha Rani vs The State of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12439 of 2025
======================================================
Abha Rani Wife of Sri Abdhesh Jha, Resident of Jay Prakash Nagar, Ward No
22, M.G. Road, Kahgaria Mukhya Daak Ghar, PS Khagaria, District
Khagaria.
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, Department of Education,
Government of Bihar, Patna.
2. The Principal Secretary, Department of Education, Government of Bihar,
Patna.
3. The Director (Secondary Education), Education Department, Government of
Bihar, Patna.
4. The District Magistrate, Khagaria.
5. The District Programme Officer (Establishment), Khagaria.
6. The District Education Officer, Khagaria.
7. Plus 2 Arya Kanya Uchaya Vidyalaya, Khagaria governed by a Managing
Committee through its Secretary Rajkumar Fogla, Male, aged about 49
years, S/o Late Satyanarayan Fogla, R/o 51, Main road, Khagaria, Near Arya
Samaj Mandir, Khagaria Mukhya Dakghar, P.S. Khagaria, District Khagaria,
Bihar 851204.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Siddhartha Prasad, Adv
Mr. Sumit Kumar, Adv
For the State : Mr. Standing Counsel (20)
Md. Zeeshan Kalim, AC to SC (20)
Mr. Prasad Verma, AC to SC 20
For Res. No. 7 Mr. Sanjeev Ranjan, Adv
Ms. Shristi Singh, Adv
Mrs. Aditi Sahay, Adv
======================================================
CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR SINHA
CAV JUDGMENT
Date : 02-07-2026
Heard the parties.
2. In brief, the factual matrix of this case is that Plus 2
Arya Kanya Uchaya Vidyalaya, Khagaria (Respondent no.7
School) is a Minority Aided School imparting education up to
class 12th. In terms of the relevant provisions contained in Bihar

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Non-Government Secondary Schools (Taking over of Management
and Control) Act, 1981 (for brevity referred to as ‘the 1981 Act’),
such schools are required to formulate the service rules governing
their teaching and non-teaching staffs and submit the same to the
Education Department, Government of Bihar for its approval.
Further, the Director, Secondary Education, Education
Department, Government of Bihar (respondent no.3), by virtue of
the provisions of ‘the 1981 Act’ as amended by the Bihar Non-
Government Secondary Schools (Taking over of Management and
Control) (Amendment) Act, 2011 (for brevity referred to as ‘the
2011 Amendment Act’) has the regulatory control over the affairs
of the minority schools and also exercises disciplinary control over
their teaching and non-teaching staffs. The petitioner, possessing
the requisite qualifications, was appointed as an Assistant Teacher
in the ‘Respondent-7 School’ in the year 1987 by its Managing
Committee after adherence to the prescribed selection process and
the appointment of the petitioner was duly approved by the then
Competent Service Board under Section 18 (3)(b) of ‘the 1981
Act’.
As per the petitioner, her appointment was always
subject to various policy decisions and administrative orders
issued by the State Government from time-to-time pertaining to

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minority aided educational institutions. The benefits of
government schemes relating to teaching staffs of minority aided
school and also all service related benefits including pay revisions
have been extended to the petitioner from time-to-time. It is
further the petitioner’s case that throughout her long tenure of
service in ‘Respondent-7 School’, there had never been any
controversy between her and the managing committee of the
‘Respondent-7 School’ and the petitioner was discharging her
duties with utmost sincerity and diligence. The petitioner further
asserts that owing to an inter-se dispute between two rival
managing committees of the ‘Respondent-7 School’, each
claiming authority through different modes, the petitioner was
unnecessarily targeted, which has led to her suspension from
service by Letter dated 05.04.2024 (Annexure-P/10) issued by the
Secretary of the present managing committee. Consequent thereto,
a Letter dated 11.06.2024 (Annexure-P/12) has come to be issued
by the District Education Officer, Khagaria, (Respondent no.6)
directing the petitioner either to abide by the letter of suspension
or to furnish an explanation. Consequent upon the suspension, the
petitioner’s salary has also been directed to be withheld. The
consequential Letter dated 11.06.2024 issued by the District
Education Officer, Khagaria, (Respondent no.6) along with the

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letter of suspension dated 05.04.2024 issued by the Secretary of
the present managing committee of ‘Respondent-7 School’ have
been challenged by the petitioner on various grounds, one of the
principle grounds being that the suspension order has been passed
in absence of approval by the competent government authority, as
allegedly mandated under the provisions of ‘the 1981 Act’. During
the pendency of the present writ application, the petitioner has also
been dismissed from service vide letter dated 10.01.2026
(Annexure-I.A/8) issued by the Secretary of the managing
committee of ‘Respondent-7 School’ and the same has been
forwarded thereafter to the District Education Officer, Khagaria,
(Respondent no.6) and the District Programme Officer
(Establishment), Education Department. The said dismissal order
dated 10.01.2026 has also been assailed by the petitioner by filing
interlocutory application bearing I.A. No.01 of 2026, inter alia , on
the ground that it has been passed without obtaining the mandatory
approval of the competent authority i.e. the Director, Secondary
Education, Education Department, Government of Bihar, Patna
(Respondent no.3), as required under Section 18(3)(d) of ‘the 1981
Act’ as amended by ‘2011 Amendment Act’. The ‘Respondent-7
School’ has defended the impugned actions taken by it by filing a

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detailed Counter Affidavit as well as in the Supplementary Counter
Affidavit.
3. In the Supplementary Counter Affidavit filed by ‘the
Respondent-7 School’, an objection has been raised with regard to
the maintainability of the present writ petition. The specific
objection as contained in paragraph-15 of the Supplementary
Counter Affidavit is quoted herein below for needful:
“15. That it is relevant to state that
the writ petition is not maintainable, as the
order under challenge has been passed by a
minority aided school in respect of a dispute
arising out of an ordinary contract of service.
Hence, the writ petition is liable to obe
dismissed as not maintainable.”
4. It is thus the specific objection of the learned counsel
appearing for ‘Respondent-7 School’ that since the impugned
orders have been passed by a minority aided school in relation to a
dispute arising out of an ordinary contract of service, therefore, the
present writ application being one seeking enforecment of rights
arising from such a contract, is not maintainable under Article 226
of the Constitution of India. In other words, no writ would lie to
challenge the impugned orders arising out of an ordinary contrct of
service.
5. Since an objection has been raised by ‘the Respondent
No.7 School’ with regard to maintainability of the present writ

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petition, therefore, the Court considers it appropriate to examine
and determine the said issue before entering into the merits of the
controversy. The parties have been heard at length. In support of
the objection raised by ‘the Respondent-7 School’ regarding
maintability of the present writ petition, the learned counsel for the
school has relied upon the following decisions:
(i) Shri Vidya Ram Misra v. Managing Committee,
Shri Jai Narain College reported in (1972) 1 SCC 623;
(ii) Pradeep Kumar Biswas vs Indian Institute Of
Chemical Biology & Ors. reported in (2002) 5 SCC 111;
(iii) Trigun Chand Thakur vs State of Bihar & Ors.
reported in (2019) 7 SCC 513;
(iv) St. Mary’s Education Society & Anr.
Vs.Rajendra Prasad Bhargava & Ors. reported in (2023) 4 SCC
498;
(v) Army Welfare Education Society, New Delhi Vs.
Sunil Kumar Sharma & Ors. reported in (2024) 16 SCC 598;
(vi) Dileep Kumar Pandey v. Union of India & Ors.
reported in 2025 Live Law (SC) 629.
6. While referring to the judgement in Shri Vidya Ram
Misra case (Supra), learned counsel for ‘Respondent no.7

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School’ has specifically relied upon paragraphs- 4, 5, 11 and 13 of
the said judgement, which are quoted herein below for needful:
“4. It is well settled that, when there is a purported
termination of a contract of service, a declaration that the
contract of service still subsisted would not be made in
the absence of special circumstances, because of the
principle that courts do not ordinarily enforce specific
performance of contracts of service (see Executive
Committee of U.P. State Warehousing Corporation Ltd. v.
Chandra Kiran Tyagi [AIR 1970 SC 1244 : (1970) 2 SCR
250 : (1970) 1 SCJ 790] and Indian Airlines Corporation
v. Sukhdeo Rai [AIR 1971 SC 1828] ). If the master
rightfully ends the contract, there can be no complaint. If
the master wrongfully ends the contract, then the servant
can pursue a claim for damages. So even if the master
wrongfully dismisses the servant in breach of the contract,
the employment is effectively terminated. In Ridge v.
Baldwin [(1965) 2 WLR 935 (HL)] Lord Reid said in his
speech:
“The law regarding master and
servant is not in doubt. There cannot be
specific performance of a contract of
service, and the master can terminate the
contract with his servant at any time and for
any reason or for none. But if he does so in
a manner not warranted by the contract he
must pay damages for breach of contract.
So the question in a pure case of master and
servant does not at all depend on whether
the master has heard the servant in his own
defence; it depends on whether the facts
emerging at the trial prove breach of
contract. But this kind of case can resemble
dismissal from an office where the body
employing the man is under some statutory
or other restriction as to the kind of contract
which it can make with its servants, or the
grounds on which it can dismiss them.”
5. A teacher appointed by a University constituted
under a statute was held not to be holding an office or
status in Vidyodaya University v. Silva [(1964) 3 All ER
865] . In that case the services of the respondent was
brought to an end by a resolution of the University
Council set up under the statute establishing the

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University. The resolution was admittedly passed without
hearing the teacher. Under the statute, the Council was
empowered to institute professorship and every
appointment was to be by an agreement in writing
between the University and the professor and was to be
for such period and on such terms as the Council might
resolve. Under Section 18(e) of the Act, the Council had
the power to dismiss an officer or a teacher on grounds of
incapacity or conduct which, in the opinion of not less
than two-thirds of the members of the Council, rendered
him unfit to be an officer or a teacher of the University.
Such a resolution with the requisite majority was passed.
The Act gave no right to the teacher of being heard by the
Council. The Privy Council held that the mere
circumstance that the University was established by the
statute and was regulated by statutory enactments
contained in the Act did not mean that the contracts of
employment made with teachers, though subject to
Section 18(e), were other than ordinary contracts of
master and servant and, therefore, the procedure of being
heard invoked by the respondent was not available to him
and no writ could be issued against the University.
11. On a plain reading of Statute 151, it is clear that
it only provides that the terms and conditions mentioned
therein must be incorporated in the contract to be entered
into between the college and the teacher 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 Statute 151 have
proprio vigore 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.
13. Besides, in order that the third exception to
the general rule that no writ will lie to quash an order
terminating a contract of service, albeit illegally, as
stated in S.R. Tewari v. District Board, Agra, 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

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a teacher passed by a college similarly situate in
Prabhakar Ramakrishna Jodh v. A.L. Pande, 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.”
7. While referring to Pradeep Kumar Biswas case
(Supra), reliance has been placed on paragraph-40 of the said
judgement, which is quoted herein below for needful:
“40. The picture that ultimately emerges is that the
tests formulated in Ajay Hasia [Ajay Hasia v. Khalid
Mujib Sehravardi, (1981) 1 SCC 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.”
8. While referring to Trigun Chand Thakur case
(Supra), reliance has been placed on paragraph-5 of the said
judgement, which is quoted herein below for needful:
“5. Being aggrieved, the appellant has filed LPA
No. 670 of 1999 before the Division Bench of the High
Court. The Division Bench vide impugned order dated
21-1-2008 [Trigun Chand Thakur v. State of Bihar,
2008 SCC OnLine Pat 994 : (2008) 2 PLJR 718]
dismissed the LPA filed by the appellant and affirmed
the order passed by the learned Single Judge. In the
impugned order [Trigun Chand Thakur v. State of
Bihar, 2008 SCC OnLine Pat 994 : (2008) 2 PLJR 718]

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, the Division Bench of the High Court has also placed
reliance Chandra Nath Thakur v. Bihar Sanskrit
Shiksha Board [Chandra Nath Thakur v. Bihar Sanskrit
Shiksha Board, 1999 SCC OnLine Pat 58 : (1999) 1
PLJR 529] and held that a teacher of a 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 Committee. The Division
Bench also pointed out that the consent order passed by
the High Court in Trigun Chander Thakur v. State of
Bihar [Trigun Chander Thakur v. State of Bihar, CWJC
No. 10968 of 1994, order dated 31-8-1995 (Pat)]
cannot confer jurisdiction on this Court and does not
make the Managing Committee “State” within the
meaning of Article 12 of the Constitution of India. ”
9. The judgement delivered by the Hon’ble Apex Court
in St. Mary’s Education Society case (Supra), has been relied
upon by ‘the Respondent-7 School’ to establish the argument that
the petitioner in this case is agitating against the suspension and
termination orders passed by the managing committee, which as
per him amounts to seeking enforcement of ordinary contract of
service, which has no direct nexus to the “public function” or
“public duty”- i.e. imparting of education being discharged by ‘the
Respondent-7 School’, therefore, even if ‘the Respondent-7
School’ is performing “public duty” and is amenable to writ
jurisdiction, its decision to terminate the ordinary contract of
service of the petitioner, cannot be a subject matter of judicial
review under writ jurisdiction because there is no public element
in the action complained of. To emphasis this argument, reliance
has been placed on paragraphs-43, 54, 66 and 75.2 of the

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judgement delivered in St. Mary’s Education Society case
(Supra), which are quoted herein below for needful:
“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.
54. Thus, the aforesaid order 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.
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
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

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public duty. There must be a public law element
in any action.
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.
10. Referring to the judgement delivered in Army
Welfare Education Society, New Delhi case (Supra) reliance has
been placed on paragraph-57 of the said judgement which is
quoted herein below for needful:
“57. In view of the aforesaid, nothing more is
required to be discussed in the present appeals. We
are of the view that the High Court committed an
egregious error in entertaining the writ petition filed
by the respondents herein holding that the appellant
Society is “State” within Article 12 of the
Constitution. Undoubtedly, the school run by the
appellant Society imparts education. Imparting
education involves public duty and therefore 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

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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. ”
11. Referring to Dileep Kumar Pandey case (Supra) reliance has
been placed on paragraphs 21 to 24 of the said judgement, which are
quoted herein below for needful:
“21. When the plain language of Article 226
of the Constitution indicates a wider coverage, this
Court would not accord a restrictive meaning
thereto as Article 226(1) of the Constitution itself
makes it clear that notwithstanding anything
contained in Article 32 of the Constitution, 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’. Thus, we have no hesitation to hold
that the School/Committee is amenable to writ
jurisdiction under Article 226 of the Constitution.
It is also of some import to note that, at the time of
recruitment of the teachers, the officers of the IAF
are also part of the body which decides such
recruitment, including interviews for the post of
Principal, which would, once again, denote the
pervasive control of the IAF in the running of the
schools. As a matter of fact, the Court cannot shut
its eyes to the claim made by the appellant in Civil
Appeal No. 11378 of 2013 to the effect that all
proceedings against him started when he objected
to a candidate who was junior to him being made
the in-21 of 28 charge Principal, the crucial aspect
being that the said junior happened to be the sister
of the Air Vice Marshal concerned, under whose
jurisdiction the School was located. Of course, we
may clarify that we are not returning any finding
on this point. But, the direct influence of the

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officers of the IAF in the running of the schools
under his/her command, including where his/her
subordinates are directly responsible, would lead
to the irresistible conclusion that the
Committee/School cannot be held to fall outside
the purview of Article 226 of the Constitution.
22. Another issue the learned ASG flagged is
with regard to funds primarily used for running of
the School being ‘Non Public Funds’. In this
context, it would be appropriate to reproduce the
relevant extract from the IAF Manual of
Management and Accounting of Non-Public Funds
(IAP 3503 (COMPREHENSIVELY REVISED,
2016), produced as part of the written submissions
on behalf of the Respondents:
‘3. As fighting force it is important for the
organization to maintain high motivation,
morale and provide good quality of life for its
Air warriors and their families. Authorization
for incurring expenditure for Undertaking all
welfare activities out of Public Funds being
limited, the purpose of creating Non Public
Funds, is to supplement the scope of Public
Funds and to cater for welfare needs of troops
which cannot be provided through Public
Funds. The primary purpose for creating these
Funds is the welfare of troops. The Govt of
India has provided certain privileges to these
funds by allowing some special provisions;
Some of these are exemption of the income of
these funds from income Tax, allowing use of
certain Govt buildings for these ventures on
payment of rent/allied charges wherever
applicable, allowing the recovery of the dues of
Non Public Funds from salary of individuals,
making donations to certain NPFs tax free etc.’
(emphasis supplied)
23. In view of the aforesaid, on a deeper
probe, it appears that ‘Non Public Funds’ is a
misnomer inasmuch as while it may not be labelled
as ‘Public Funds’ but the nature is public for the
reason that it includes direct funding from the Air
Force Unit/Station and most importantly, it is also
supplemented by the Regimental Fund. Another
reason is that even the so-termed ‘Non Public
Funds’ are used for welfare measures for the IAF
personnel such as establishment of canteens etc.
and are exempt from income tax and other
statutory taxes, meaning that the Government

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foregoes its share by way of taxes on such funds.
Arguendo, if the funding is not direct, the indirect
support of the Government of India/Ministry of
Defence through providing land, granting tax
exemptions et al is clearly borne out from the
record.
24. At this juncture, we would like to refer
the judgments cited by the learned ASG -
Union of India v. Chotelal, (1999) 1 SCC 554
and R R Pillai v. Southern Air Command,
Indian Air Force, (2009) 13 SCC 311. In our
considered view, these judgments are not
applicable and can be distinguished on facts.
Chotelal (supra) dealt with the issue as to
whether dhobis appointed to wash the clothes
of the cadets at the National Defence Academy,
Khadakwasla, who are paid from a fund called
the ‘Regimental Fund’ can be said to be
holders of civil posts so as to confer
jurisdiction on the Central Administrative
Tribunal, whereas R R Pillai (supra) dealt with
the status of employees of an unit-run canteen
in the armed forces. Thus, both relied on cases
wherein controversy was pertaining to the
status of the concerned employees, whereas
herein the subject-matter is completely
different, relating to the amenability of the
School/Committee, while discharging a public
function and performing a public duty, namely
of imparting education and discharging public
function, to writ jurisdiction under Article 226
of the Constitution. Quite perceptibly, even the
terms and conditions of service and nature of
duties considered in Chotelal (supra) and R R
Pillai (supra) were very different.”
12. Responding to the submissions and arguments made by learned
counsel for ‘the Respondent-7 School’, learned counsel appearing for the
petitioner submits that in the present case, the actions complained of
have been challenged on various grounds and one of the grounds being
that the actions/decisions taken against the petitioner, required statutory

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approval of Director of Secondary Education, Education Department,
Government of Bihar as per the statutory provisions contained in ‘the
1981 Act’ as amended by ‘2011 Amendment Act’, which was not done
and hence, interference in this case was/is being sought on the ground of
breach of law and not on the ground of breach of an ordinary contract of
service. Therefore, as per the law well settled, this writ application is
maintainable.
13. To fortify his submissions, the learned counsel for the petitioner
has relied upon the following decisions:
(i) Andi Mukta Sadguru Shree Muktajee Vandas Swami
Suvarna Jayanti Mahotsav Smarak Trust and Others versus V.R.
Rudani & Others, reported in (1989) 2 SCC 691, Paragraph 15, 17, 20
and 22, which are quoted herein below for needful:
“15. If the rights are purely of a private
character no mandamus can issue. If the
management of the college is purely a private body
with no public duty mandamus will not lie. These are
two exceptions to mandamus. But once these are
absent and when the party has no other equally
convenient remedy, mandamus cannot be denied. It
has to be appreciated that the appellants-trust was
managing the affiliated college to which public
money is paid as government aid. Public money paid
as government aid plays a major role in the control,
maintenance and working of educational institutions.
The aided institutions like government institutions
discharge public function by way of imparting
education to students. They are subject to the rules
and regulations of the affiliating University. Their

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activities are closely supervised by the University
institutions, therefore, is not devoid of any public
character. So are rsity authorities. Employment in
such 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,
there-fore, not purely of a private character. It has
super-added protection by University decisions
creating a legal right-duty relationship between the
staff and the management. When there is existence of
this relationship, mandamus cannot be refused to the
aggrieved party.
17. There, however, the prerogative writ of
mandamus is confined only to public authorities to
compel performance of public duty. The 'public
authority for them mean 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 the writ 'in the nature of
mandamus'. Article 226 confers wide powers on the
High Courts to issue writs in the nature of
prerogative writs. This is a striking departure from
the English law. Under Article 226, writs can be
issued to "any person or authority". It can be issued
"for the enforcement of any of the fundamental rights
and for any other purpose".
20. The term "authority" used in Article 226, in
the context. must receive a liberal meaning unlike the
term in Article 12. Article 12 is relevant only for the
purpose of enforcement of funda-mental 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

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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.
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." 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 wrti
petition.”
(ii) Ramkrishna Mission and Another versus Kago Kunya and
others, reported in (2019) 16 SCC 303 , paragraph 34, which is quoted
herein below for needul:
“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

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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.”
(iii) Marwari Balika Vidyalaya versus Asha Srivastava and
Ors., r eported in (2020) 14 SCC 449. Paragraphs 13, 14, 15, 16, 21, 22,
23 and 24, which are quoted herein below for needful:
“13. In Raj Kumar v. Director of Education & Ors.
(supra) this Court held that Section 8(2) of the Delhi
School Education Act, 1973 is a procedural safeguard in
favour of employee to ensure that order of termination or
dismissal is not passed without prior approval of
Director of Education to avoid arbitrary or unreasonable
termination/dismissal of employee of even recognised
private school. Moreover, this Court also considered the
Objects and Reasons of the Delhi School Education Act,
1973 and came to the conclusion that the termination of
service of the driver of a private school without obtaining
prior approval of Director of Education was bad in law.
This Court observed:
“45. We are unable to agree with the contention
advanced by the learned counsel appearing on behalf of
the respondent School. Section 8(2) of the DSE Act is a
procedural safeguard in favour of an employee to ensure
that order of termination or dismissal is not passed
without the prior approval of the Director of Education.
This is to avoid arbitrary or unreasonable termination or
dismissal of an employee of a recognised private
school.”
14. This Court has laid down in Raj Kumar v.
Director of Education & Ors. (supra) that the intent of

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the legislature while enacting the Delhi School
Education Act, 1973 (in short, ‘the DSE’) was to provide
security of tenure to the employees of the school and
to regulate the terms and conditions of their
employment. While the functioning of both aided and
unaided educational institutions must be free from
unnecessary Governmental interference, the same needs
to the reconciled with the conditions of employment of
the employees of these institutions and provision of
adequate precautions to safeguard their interests. Section
8(2) of the DSE Act is one such precautionary
safeguard which needs to be followed to ensure that
employees of educational institutions do not suffer
unfair treatment at the hands of the management.
15. Writ application was clearly maintainable in
view of aforesaid discussion and more so in view of
the decision of this Court in Ramesh Ahluwalia v. State of
Punjab & Ors. (supra) in which this court has
considered the issue at length and has thus
observed:
“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 Mukti Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak Trust. In those
circumstances, this Court has clearly observed as under:
(V.R. Rudani case, 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

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matter by what means the duty is imposed, if a positive
obligation exists mandamus cannot be denied.
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. 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 appellant 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 and Zee
Telefilms Ltd. brought to our notice by the learned
counsel for the appellant Mr. Parikh.
14. In view of the law laid down in the
aforementioned judgment of this Court, the judgment
of the learned Single Judge as also the Division Bench of
the High Court cannot be sustained on the proposition
that the writ petition would not 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.“ (emphasis supplied)
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.
16. Learned Senior Counsel relied upon the
decision of this Court in Committee of Management,

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Delhi Public School & Anr. v. M.K. Gandhi & Ors.
(supra) wherein the question of termination of services of
teachers was involved. The Committee of Management
filed a Civil Appeal in this Court against the decision of
Allahabad High Court contending that the Delhi Public
School, Ghaziabad was not a 'State' within the meaning
of Article 12 of the Constitution. The question involved
was that termination of service of teachers of a private
school without conducting the enquiry was contrary to
bye-laws. This Court held that the Writ Application was
not maintainable as a private school is not 'State' under
Article 12 of the Constitution. It is pertinent to mention
here that the question of approval by Government
authority was not involved in M.K. Gandhi (Supra).
Thus, this decision is distinguishable.
21. In view of the aforesaid discussion, we have no
hesitation to hold that the Writ Application is
maintainable as rightly held by the Division Bench of
the High Court.
22. Coming to the question of relief of reinstatement
and back wages, in view of the factual matrix of the
instant case, we have taken note of the fact that the
approval of the concerned authorities was not obtained
and stigmatic order of dismissal was passed in the
most arbitrary manner. It is not in dispute that no
departmental enquiry was held.
23. In the case of Anoop Jaiswal v. Government of
India & Anr. (1984) 2 SCC 369, the appellant was
undergoing training as a probationer. On a
particular day, all the trainees arrived late at the
place wherein P.T./unarmed combat practice was
to be conducted. An enquiry was initiated and the
impugned order of discharge under Rule 12(b) of the IPS
(Probation) Rules, 1954 on the ground of his
unsuitability for being a member of the IPS. It was
held that the order was punitive in nature which in
absence of any proper enquiry. It was held as under:
“13......Even though the order of discharge may be
non-committal, it cannot stand alone. Though the noting
in the file of the Government may be irrelevant, the cause
for the order cannot be ignored. The recommendation of
the Director which is the basis of foundation for the

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order should be read along with the order for the purpose
of determining its true character. If on reading the two
together the Court reaches the conclusion that the
alleged act of misconduct was the cause of the order and
that but for that incident it would not have been passed it
is inevitable that the order of discharge should fall to the
ground as the appellant has not been afforded a
reasonable opportunity to defend himself as provided in
Article 311(2) of the Constitution.”
24. In the present case, the employee has served for
five years before dismissal from the service by a
stigmatic order, passed without holding an enquiry,
we cannot entertain the submission raised by learned
Senior counsel for the Appellant-School that back
wages should be denied. The manner in which
termination had been made was clearly arbitrary and the
order was illegal and void and thus back wages
should follow.”
(iv) St. Mary’s Education Society and Another Versus Rajendra
Prasad Bhargava and others , reported in (2023) 4 SCC 498 ,
Paragraphs 62, 64 and 75 to 75.5, which are quoted herein below for
needful:
“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.

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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.
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

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undisputedly open to challenge and scrutiny under Article
226 of the Constitution, the actions or decisions taken
solely within the confines of an ordinary contract of
service, having no statutory force or backing, cannot be
recognised as being amenable to challenge under Article
226 of the Constitution. In the absence of the service
conditions being controlled or governed by statutory
provisions, the matter would remain in the realm of an
ordinary contract of service.
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.”
(v) Shiv Shankar Singh Vs. The State of Bihar and others vide
judgement dated 08.05.2025 in CWJC No.5476 of 2020, paragraphs 25
to 28, 31 and 32, which are quoted herein below for needful:
“25. The Apex Court in the background of
the fact that "in the State of Bihar, with
objective, a number of private secondary
schools were established and managed by
private individuals or societies. The State
considered it necessary to take over the
management and control of Non-Government
Secondary Schools for better organization and

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development of secondary education of the
State. It promulgated an Ordinance on August
11-08-80, as the Bihar Non-Government
Secondary Schools (Taking Over of
Management and Control) First Ordinance.
The Ordinance was later on replaced by
another Bihar Ordinance No. 74 of 1981 on
22-4-1981 and, thereafter, the Bihar Non-
Government Secondary Schools (Taking Over
of Management and Control) Act, 1981
(hereinafter referred to as the "Act, 1981")
came into effect with an object for
improvement, better organisation and
development of Secondary Education in the
State of Bihar". The Hon'ble Supreme Court
after considering the provision of the Act and
dealing with the provision of Section 18, held
that "a minority school shall be accorded
recognition if it is managed and controlled in
accordance with the provision set out in Clause
(a) and (k) of Section 18 (3)". It requires every
minority secondary school to have a managing
committee and written by-laws. The managing
committee is required to appoint teachers with
the concurrence of the School Service Board.
The managing committee shall prescribe rules
regarding the service conditions of teachers
based on natural justice and prevailing law
and it shall have powers to remove, dismiss,
terminate or discharge a teacher from service
with the approval of School Service Board. The
managing committee shall charge only such
fees from the students as are prescribed by the
State Government. No higher fees shall be
charged unless prior approval of the State
Government is obtained.
26. The Apex Court further observed that
"Clauses (j) and (k) of Section 18(3) confer
power on the State Government to issue
instructions consistent with the provisions of
Articles 29 and 30 of the Constitution for
efficient management and for improving the
standard of teaching and a minority school is
required to comply with those instructions.

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Clauses (a) to (k) of Section 18(3) of the Act,
lay down terms and conditions for granting
recognition to a minority school, and these are
regulatory in nature which seek to secure
excellence in education and efficiency in
management of schools.
27. The Apex Court in the aforesaid
judgment has held that "the impugned Act does
not violate petitioners' rights guaranteed under
Article 30(1) of the Constitution of India." The
vires of the Act was, thus, held to be valid in
accordance with the Constitutional provisions.
28. In the present case, the petitioner is
aggrieved by the non payment of salary and
with the termination order and the power of
judicial review can be exercised against
arbitrary action was considered by the Apex
Court in the case of St. Mary's Education
Society (Supra) , dealing with the said question
relying on its earlier judgments, the Apex
Court, in paragraph nos. 66, 67, 68, 69, 70 and
75 has held as follows:
" 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
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

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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
development and general welfare activities for
the benefit of the
underprivileged/backward/tribal people of
society without any discrimination. These

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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. (emphasis supplied)
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 : AIR 1989 SC 1607] . Andi Mukta
[Andi Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak Trust
v. V.R. Rudani, (1989) 2 SCC 691 : AIR 1989 SC
1607] 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

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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 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 : (SCC p. 698, para 15)

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‘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 : AIR 1989 SC 1607] , 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” and 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 715] ,
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] , 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.’ ” (emphasis
in original)

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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?”
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

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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. (emphasis
supplied)
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 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.”
(emphasis supplied)
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

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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 or decisions taken
solely within the confines of an ordinary
contract of service, having no statutory force or
backing, cannot be recognised as being
amenable to challenge under Article 226 of the
Constitution. In the absence of the service
conditions being controlled or governed by
statutory provisions, the matter would remain in
the realm of an ordinary contract of service.
75.4. Even if it be perceived that
imparting education by private unaided school

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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."
31. Tested on the aforesaid principles
of law laid down by the Apex Court, it is clear that
the action of the Managing Committee, who have
appointed the petitioner on the vacant sanctioned
post and had sought approval from the Director,
Secondary Education. The approval was pending
and the respondents, without any valid reason and
without giving due opportunity of hearing to the
petitioner in accordance with the mandate of
Article 311 (2) of the Constitution of India had
terminated the petitioner. If the management of the
school allow the petitioner to join after having
validly appointed him and continued him in
anticipation of approval, the reason assigned in the
impugned order of termination without being
approved by the Director, Secondary Education,
shows malicious motive of the Managing
Committee of the school. The action of the
respondent can only be said to be a malicious act
and such act cannot be described as a proper
exercise of discretion and the order of termination
clearly can be said to be without authority of law.

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32. In above background, I hold that
the termination order dated 17.05.2018, which has
been brought on record by way of 'Annexure-E' to
the counter affidavit filed on behalf of the
respondents no. 6 and 7 in exercise of the power of
Managing Committee in accordance with the
School of Art Diosis of Patna to which the
respondents no. 6 and 7 school namely, St. Joseph
Convent High School, Barh is controlled cannot be
sustained, and the same is hereby set aside and
quashed.
14. Taking note of the precise nature of objection raised by the
Respondent no. 7-School and the submissions advanced on behalf of the
parties, the question that arises for consideration is:
Whether a writ petition would be maintainable at the behest of a
dismissed/terminated employee against a school discharging “public
function” or “public duty”, if the action complained of, on an amongst
other grounds is also assailed inter alia on the ground of breach of
law/statutory provision governing the service condition of such an
employee?
15. From the averments/pleadings made in the writ petition and in the
interlocutory application, it transpires that, apart from various other
grounds, the petitioner has challenged both the suspension and dismissal
order on the specific ground that they have been passed without taking
approval of the competent government authority, which, as per the
petitioner, was/is a mandatory requirement under the statutory provisions of
‘the 1981 Act’ as amended by ‘2011 Amendment Act’. It is further the
specific case of the petitioner that the service rules governing the teachers

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and non-teaching staffs of Respondent no. 7-School have been formulated
in terms of the provisions of ‘the 1981 Act’ and the Director, Secondary
Education (respondent no.3) exercises the regulatory control over the
affairs of the minority school and disciplinary control over the teaching and
non-teaching staffs of the school. Their appointments are also subjected to
approval by the competent authority of the State Government, in
accordance with the provisions of ‘the 1981 Act’.
16. These aforesiad factual assertions facts have not been specifically
controverted in the Counter Affidavit filed by ‘the respondent no.7 School’.
In the Supplementary Counter Affidavit, apart from stating that the
suspension order was approved by District Education Officer vide Letter
dated 11.06.2024, though no document evidencing such approval has been
brought on record, no denial has been made to the petitioner’s categorical
assertion that the dismissal order has been passed without seeking the
approval of the competent government authority. It is also pertinent to note
that although an objection has been raised by ‘the Respondent-7 School’
stating that writ would not be maintainable in respect of a dispute arising
out of oridinary contract of service, but no submission has been made to
explain as to why a writ would not be maintainable when the challenge is
founded not merely on the breach of contract of service, but also on the
alleged violation of statutory provisions governing the petitioner’s service
conditions.

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17. In the aforesaid factual backdrop and the submissions made by the
parties, this Court proceeds to examine the judgements relied upon by the
parties, in the context of the specific objection raised by ‘Respondent-7
School’ regarding maintainability of the writ petition.
18. The judgement of the Hon’ble Supreme Court delivered in Shri
Vidya Ram Misra case (Supra) would not apply to the factual matrix of
this case, for the reason that in that case, the cause of action arose solely on
account of breach of clause-5 of the contract of service entered between the
petitioner therein and the Associated College and not on account of any
breach of law/statutory provision. The governing statute 151,152 and 153
framed under the Lucknow University Act, 1920 did not lay down any
procedure for removal of a teacher to be incorporated in the contract of
service, therefore, clause-5 of the contract of service stood alone as part of
ordinary contract of service, bereft of any statutory flavour. Hence, for
breach of clause-5 of contract, the remedy lay before Civil Court by way of
suit for damages/compensation. The writ petition was, therefore, rightly
held to be not maintainable because writ courts do not ordinarily enforce
specific performance of contract of service. Paragraphs-10 and 11 of the
judgement in Shri Vidya Ram Misra case (Supra) succinctly explains
this position, which are quoted herein below for needful:
" 10. In the case in hand, the position is entirely
different. The relevant statutes governing this case are
Statutes 151, 152 and 153, framed under the provisions of
the Lucknow University Act, 1920. Statute 151 provides
that teachers of an Associated College including the

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principal shall be appointed on written contract and that
the contract shall inter alia provide the conditions
mentioned therein in addition to such other conditions not
inconsistent with the Act and the Statutes as an
Associated College may include in its own form of
agreement. Then the conditions as regards salary, age of
retirement etc., are enumerated. The statute then goes on
to specify the grounds on which a teacher's services can
be terminated. Statute 152 states that the form of
agreement to be adopted by each college shall be
approved by the Executive Council before it is put in
force. Statute 153 provides for a form of agreement which
shall serve as a model. It may be noted that Statute 151
does not provide for any particular procedure for
dismissal or removal of a teacher for being incorporated
in the contract. Nor does the model form of contract lay
down any particular procedure for that purpose. The
appellant had entered into an agreement when he was
employed in the college. Clause 5 of the agreement
provided that:
“the period of probation shall be one year unless
extended by the Managing Committee and the College
may at any time during the said period of probation put
an end to this engagement, or if service shall continue
beyond the said term, at any time thereafter, dispense with
the services of the said Lecturer without notice, if the
Managing Committee of the said College is satisfied that
it is necessary to remove the said Lecturer for
misconduct, insubordination or habitual neglect of duty
on the part of the said Lecturer or in case any of the
conditions herein specified have been broken by the said
Lecturer provided that an opportunity is given to him by
the said Managing Committee to give his explanation
before a decision is arrived at.
11. On a plain reading of Statute 151, it is clear that
it only provides that the terms and conditions mentioned
therein must be incorporated in the contract to be entered
into between the college and the teacher 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 Statute 151 have
proprio vigore 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.”

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19. The judgement of the Hon’ble Supreme Court delivered in the
case of Pradeep Kumar Biswas case (Supra) also has no application to
the precise nature of the objection raised by ‘the Respondent-7 School’ in
this case, for the reason that the judgement in Pradeep Kumar Biswas
case (Supra) is an authority on the proposition as to when a body can be
held to be a “State” within Article 12 of the Constitution of India and when
it cannot. In this regard paragraph-40 of the said judgment is quoted herein
below for needful:
“40. The picture that ultimately emerges is that the
tests formulated in Ajay Hasia [Ajay Hasia v. Khalid
Mujib Sehravardi, (1981) 1 SCC 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.”
Since in this case, the objection of ‘Respondent-7 School’ is not that
the School is not a “State” within Article 12, rather the precise objection is
that writ cannot be maintained for a dispute arising out of ordinary contract
of service, therefore, this judgement in Pradeep Kumar Biswas case
(Supra) will not have any application to the precise nature of objection
raised in this case.

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20. The reliance placed by learned counsel appearing for ‘Respondent-
7 School’ on the judgement of the Hon’ble Supreme Court delivered in
Trigun Chand Thakur case (Supra) is also misplaced and it will have no
application to the precise nature of the objection raised by ‘the Respondent-
7 School’ in this case, because in this judgment the Hon’ble Supreme Court
found no reason to take a different view than the Division Bench of Patna
High Court which, after placing reliance on another Division Bench
judgment of the same High Court reported in 1999 (1) PLJR 529
(Chandra Nath Thakur & Ors. vs. Bihar Sanskrit Shiksha Board) , held
that teacher of a privately managed school, even though, financially aided
by the State Government or by Sanskrit Shiksha Board, cannot maintain a
writ petition against an order of termination from service passed by the
Managing Committee because the Managing Committee in the facts of that
case was not a “State” within the meaning of Article 12 of the Constitution
of India.
Again, the objection taken by ‘Respondent-7 School’ in this case is
not that the ‘Respondent-7 School’ is not a “State” within Article 12, rather
the precise objection is that writ cannot be maintained for a dispute arising
out of ordinary contract of service. Therefore, the reliance placed on the
judgement delivered in Trigun Chand Thakur case has no application to
the precise nature of objection taken by ‘Respondent-7 School’ in
paragraph-15 of its Supplementary Counter Affidavit.

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21. The judgement delivered by the Hon’ble Supreme Court in St.
Mary’s Education Society case (Supra) also does not come to the rescue
of ‘Respondent-7 School’. In fact, the findings given in the said judgement
helps the petitioner to maintain this writ petition.
This judgement has been relied upon by ‘Respondent-7 School’ to
establish the argument that the petitioner in this case is agitating against the
termination order passed by the Managing Committee, which as per the
learned counsel for ‘Respondent-7 School’, amounts to seeking
enforcement of ordinary contract of service, which has no direct nexus to
the “public function” or “public duty” – i.e. imparting of education being
discharged by ‘the Respondent-7 School’, therefore, even if ‘the
Respondent no.7 School’ performing “public duty” is amenable to writ
jurisdiction, its decision to terminate an ordinary contract of service of the
petitioner, cannot be a subject matter of judicial review under writ
jurisdiction because there is no public element in the action complained of.
The relevant paragraphs of this judgement on which reliance has been
placed have already been quoted herein above for ready reference.
In the writ application and in the interlocutory application, the
suspension order and the dismissal order, on an amongst other grounds
have also been challenged on the ground of lack of approval by the
competent government official/authority, which is stated to be required as
per the statutory provisions of ‘the 1981 Act’ as amended by ‘2011

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Amendment Act’. Specific pleading to this effet has been made in Ground-
(e) and paragraph-3 of the writ petition, which is quoted herein below for
needful:
“(e) For that till date suspension order
has not been approved by the competent
government officials.
3. That at the outset it is relevant to state
that the issue involved in the present writ
application primarily relates to the powers of
the Secretary of the Managing Committee of a
minority aided school in a matters pertaining
to the suspension of teaching staff viz whether
the Secretary of the Managing Committee of a
school has the jurisdiction to suspend a teacher
without the Managing Committee's approval;
whether such a suspension order is enforceable
in absence of approval by the competent
authority; whether Secretary of Managing
committee has a power to suspend teaching
staffs of school in the absence of any such rules
vesting the power to suspend; whether a
suspension order passed without fixation or
payment of subsistence allowance is legally
valid; whether suspension can be a mode of
punishment; whether suspension can be done
for an indefinite period and that too without
initiating any disciplinary proceeding. The next
issue is whether the Secretary can lawfully
withhold a teacher's salary in absence of any
rules empowering the Secretary to pass such
orders.”
Specific pleading is also contained in paragraph-22 and 23 of the
interlocutory application, which are quoted herein below for needful:
“22. That it is humbly submitted that the
order of dismissal dated 10.01.2026 is bad in law
as it was passed by the Secretary of the Managing
Committee without approval from the competent
authority.

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23. That it would be relevant to refer para 40
of the writ application to humbly submit that
Director(Secondary Education), Education
Department, Government of Bihar is having a
disciplinary control over the staff of minority
school including teachers and so before dismissing
petitioner necessary approval from said authority
has to be taken but in the present case petitioner
has been dismissed in absence of any approval
from said authority. Hence, the order of dismissal
of petitioner is bad in the eyes of law.It would
further relevant to state that even after passing the
order of impugn dismissal order the Secretary of
Managing Committee has not sought any approval
from the said authority.”
From the aforesaid pleadings made by the petitioner, it is clear that
case of violation of statutory provisions governing the service condition is
being sought to be agitated in the writ petition, which would be permissible
against ‘the Respondent-7 School’ discharging “public function” or “public
duty” - i.e. imparting education, even if the action complained of has no
direct nexus to the discharge of “public duty”. This aspect of the law is
very well settled and has been reiterated in St. Mary’s Education Society
case (Supra) in paragraph 75.4, which is quoted herein below for needful:
“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

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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.”
In the present case also, the action complained of, as per the petitioner,
required approval of Director, Secondary Education as per the statutory
provisions contained in ‘the 1981 Act’, which was not done, therefore,
interference in this case is being sought on the ground of breach of law and
not on the basis of interference in discharge of “public duty”, thus not
requiring the petitioner to establish direct nexus between action complained
of and “public duty” being discharged by ‘the Respondent-7 School’.
It is on the strength of the above reasoning that the Hon’ble Supreme
Court in St. Mary’s Education Society case (Supra), in paragraphs 62 and
64, with approval referred to the case of Marwari Balika Vidyalaya
reported in (2020) 14 SCC 449 . Paragraphs 62 and 64 of St. Mary’s
Education Society case (Supra) are quoted herein below for ready
reference:
“ 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

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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.
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.”
Thus, where violation of statutory provision by a body discharging
“public function” or “public duty” is complained of, the same would not
come within the realm of private element, requiring direct nexus to be
established between action complained of and the discharge of “public
duty” by the body.
22. Even in Shri Vidya Ram Misra case (Supra), the Hon’ble
Supreme Court upheld non-maintainability of writ petition because it was
seeking interference not on the ground of breach of law but only on the
breah of ordinary contract of service, thereby firmly entrenching the law
that writ would be maintainable if interference is sought on the ground of
breach of statutory provision/law governing the subject.

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23. In Ramakrishna Mission case (2019) 16 SCC 303 also, the
Hon’ble Supreme Court reiterated that contracts of a purely private nature
would not be subject to writ jurisdiction, but carved out an exception to this
principle by holding that if in a situation whether the contract of service is
governed or regulated by statutory provisions (like the provisions of ‘1981
Act’ in the present case) then writ would lie. Paragraph-34 of the said
judgement is reproduced herein below for this purpose:
“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.”
24. The reliance placed on Army Welfare Education Society, New
Delhi case (Supra) is also of no avail to ‘the respondent-7 School’ because
in paragraph-54 of the said judgement, the Hon’ble Supreme Court has
merely reiterated the long standing view that even if the school is
discharging “public duty” by imparting education, the dispute arising out of
breach of a covenant of a private contract of service would not be amenable
to judicial review in writ jurisdiction, as the same does not touch any public

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law element. This judgement does not in any manner dilute or militate
against the well settled proposition of law that writ would lie for actions
complained of on the ground of breach of law and not for breach of a
covenant of contract of service, and that such actions when challenged will
not come within the realm of privatre element (reference may be made to
paragraphs 62 and 64 of St. Mary’s Education Society case). Therefore,
this judgement has no application to the factual context of the present case,
where the actions of the respondent school of suspension and dismissal
from service have also been challenged for allegedly violating the statutory
provisions requiring the approval of competent State Government
official/authority as per ‘1981 Act’, thus alleging breach of law and not
breach of a covenant of contract of service.
25. The judgement of the Hon’ble Supreme Court in Dileep Kumar
Pandey case (Supra) also does not help ‘the Respondent-7 School’ in
maintaining its objection. In the said case, the school was held to be not a
“State” within the meaning of Article 12 for the reason as explained in
paragraph-22 of the said judgement and further in paragraph-23 it was held
and observed that the employees of the said school were not governed by
any statutory provision and therefore, the relationship between the
employees and the school fell in the realm of private contract, the breach of
which involved no public law element, therefore, the view of Division

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Bench of Allahabad High Court was upheld and the writ was held to be not
maintainable.
Again this judgement in Dileep Kumar Pandey case (Supra) does
not in any manner dilute or militate against the well settled proposition of
law that writ would lie for action complained of on the ground of breach of
law and not for breach of an ordinary contract of service, and that such
actions when challenged will not come within the realm of private element.
This judgement, therefore, also has no relevance to the factual matrix of the
present case, where the actions of ‘the Respondent-7 School’ have also
been challenged on the ground of violating the statutory provisions of
‘1981 Act’, requiring approval.
26. Thus, for the reasons as explained herein above, this Court rejects
the objection raised by ‘the Respondent no.7 School’ regarding
maintainability of the writ petition and holds that since in the present writ
application, the actions complained of, on an amongst other grounds have
also been assailed on the ground of breach of statutory provisions contained
in ‘1981 Act’ as amended by ‘2011 Amendment Act’, therefore, this writ
application is held to be maintainable for the present against ‘the
Respondent No.7 School’ which is undisputedly discharging ‘public
function’ or ‘public duty’ by imparting education. It is made clear that
while prosecuting the case on merit, the petitioner will be allowed to assail
the impugned orders strictly on the ground of alleged breach of statutory

Patna High Court CWJC No.12439 of 2025 dt.02-07-2026
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provisions of ‘1981 Act’ as amended by ‘2011 Amendment Act’ and on no
other ground(s). It remains to be seen whether the petitioner while arguing
the case on merit is able to establish the breach of statutory provision, as
alleged by him or not. If the petitioner is unable to, then this Court may not
finally entertain this writ application.
27. Put up this case after two weeks on 20.07.2026 under ‘Order on
Petition’ for disposal of I.A.No.01 of 2026. In the meantime, the respondent
parties may file their respective replies to the interlocturoy application.
(Alok Kumar Sinha, J)
kiran/-
AFR/NAFR AFR
CAV DATE 30.06.2026.
Uploading Date 02.07.2026.
Transmission Date