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Judgment
Hon'Ble Mrs. Manju Rani Chauhan, J.
Heard Mr. P.K.S. Paliwal, learned counsel for the petitioner, Ms. Sahiba Ali, Advocate, holding of Mr. Sunil Kumar Singh, learned counsel for respondent no.1, and Mr. Rishabh Agarwal, Advocate, holding brief of Mr. Vinayak Mithal, learned counsel for respondent nos.2 & 3.
On 20.07.2026, the following order was passed:-
“Mr. Sunil Kumar Singh, learned counsel, has filed his Vakalatnama on behalf of respondent no.1 in Court today, which is taken on record. Mr. Vinayak Mithal, learned counsel, has also filed his Vakalatnama on behalf of respondent no.2 in Court today, which is taken on record. The office is directed to register the aforesaid Vakalatnamas.
Mr. Rishabh Agrawal, Advocate holding brief of Mr. Vinayak Mithal, learned counsel for respondent nos.2 and 3, is present.
A preliminary objection regarding the maintainability of the writ petition has been raised by learned counsel for the respondents. In respond thereto, learned counsel for the petitioner seeks time to place certain documents on record by filing a supplementary affidavit. The prayer for time is allowed.
Accordingly, put up as a fresh case on 28.07.2026, showing the name of Mr. Sunil Kumar Singh, Advocate, as counsel for respondent no.1 and Mr. Vinayak Mithal, Advocate, as counsel for respondent no.2.”
In reply to the aforesaid preliminary objection, learned counsel for the petitioner has placed reliance upon the judgment of this Court in Writ Petition No.39866 of 2006, Manoj Kumar, Principal (Terminated) v. State of U.P. and others, wherein, in paragraph 19, this Court has observed that a writ petition under Article 226 of the Constitution is maintainable against the State and authorities exercising powers of the State, a statutory body, instrumentality or agency of the State, a company financed and owned by the State, a private body substantially financed by the State, a private body discharging public duties or public obligations of a public nature, and a person or body under an obligation to discharge any function under a statute, so as to compel it to perform such statutory functions.
Placing reliance upon another judgment of the Hon'ble Supreme Court in VST Industries Limited v. VST Industries Workers' Union, reported in (2001) 1 SCC 298, learned counsel for the petitioner, relying upon paragraphs 1 and 2 thereof, submits that the present writ petition is maintainable.
Learned counsel for the petitioner has further placed reliance upon the judgment of the Hon'ble Supreme Court in Andi Mukta Sadguru Shri Muktaji Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R. Rudani and others, reported in (1989) 2 SCC 691, arising out of Civil Appeal No. 2704 of 1975, decided on 21 April 1989, in support of his submission that the present writ petition is maintainable.
Lastly, learned counsel for the petitioner has placed reliance upon the Full Bench judgment of this Court in Writ-A No. 9814 of 2020, Uttam Chand Rawat v. State of U.P. and 7 others, particularly paragraph 34 thereof, in support of his submission that the present writ petition is maintainable.
Per contra, learned counsel appearing for the respondents submits that the judgment in Andi Mukta Sadguru (supra), has no application to the facts of the present case. It is contended that the institution involved in the said case was receiving financial aid from the Government, whereas the trust-institution in the present case is wholly unaided and does not receive any grant or financial assistance from the State. It is further submitted that the Supreme Court, in the aforementioned Andi Mukta Sadguru case, was not called upon to adjudicate upon the enforceability of a contractual service obligation through a writ of mandamus; rather, the controversy before it essentially concerned the payment of arrears of salary and consequential benefits. According to learned counsel, the ratio of the said judgment, therefore, cannot be mechanically extended to a dispute founded upon a purely contractual relationship of service between the petitioner and an unaided private trust.
It is submitted that the Hon'ble Supreme Court, in the aforesaid judgment, has itself drawn a clear distinction between a claim relating to payment of salary and a challenge to termination of service. The Court observed that the question of payment of arrears of salary stands on a different footing from a dispute concerning termination, the latter being governed essentially by the terms and conditions of the contract of service. The relevant observations of the Hon'ble Supreme Court are contained in paragraphs 12, 13 and 14 of the aforesaid judgment, which read as under:
"12.The decision in Vaish Degree College was followed in Deepak Kumar Biswas case. There again a dismissed lecturer of a private college was seeking reinstatement in service. The Court refused to grant the relief although it was found that the dismissal was wrongful. This Court instead granted substantial monetary benefits to the lecturer. This appears to be the preponderant judicial opinion because of the common law principle that a service contract cannot be specifically enforced.
13.But here the facts are quite different and, therefore, we need not go thus far. There is no plea for specific performance of contractual service. The respondents are not seeking a declaration that they be continued in service. They are not asking for mandamus to put them back into the college. They are claiming only the terminal benefits and arrears of salary 'payable to them. The question is whether the trust can be compelled to pay by a writ of mandamus?
14.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 paid as Government aid plays a major role in the control, maintenance and working of educational institute. The aided institution like Government institution discharge public function by way of imparting education to the students. They are subject to the rules and regulations of the affiliating university. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character (See-- The Evolving Indian Administration Law by M.P. Jain [1983] p. 266). So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party."
Learned counsel for the respondents has further placed reliance upon the judgment of this Court in Manoj Kumar Principal, (Terminated) v. State of U.P. through Secretary, Writ-A No. 39866 of 2006, wherein this Court, while considering the maintainability of a petition under Article 226 of the Constitution against an unaided private educational institution, has held that such an institution may be amenable to the writ jurisdiction where, by virtue of its recognition, it is admitted to the privileges of a statute and is consequently obliged to discharge various statutory functions. The relevant observations contained in paragraphs 19, 20 and 21 of the said judgment are being reproduced hereinbelow:
"19.A writ petition under Art.226 of the Constitution is maintainable against the State, and authorities exercising powers of the State, statutory body, and instrumentality or agency of the state, a company financed and owned by the State, private body run substantially on State funding, a private body discharging public duty or public obligations of public nature and person or a body under liability to discharge any function under any statute, to compel it to perform statutory functions. A writ of mandamus may also be issued to any person or authority performing public duty owing positive obligation to the affected party. The Supreme Court as long back as in 1976 in Executive Committee of Vaish Degree College, Shamli & Ors. Vs. Laxmi Narain & Ors., (1976) 2 SCC 58, held that writ petition is maintainable against the Committee of Management of a society running an educational institution discharging statutory duties. Unlike a cooperative society or a society, which is not regulated or required to perform any statutory functions, an educational institution even if it is run by private society, admitted to the privileges of the U.P. Intermediate Education Act, 1921 by virtue of its recognition is required to perform statutory duties, and is thus amenable to a writ jurisdiction of the High Court under Art.226 of the Constitution of India. The benefits and privileges of the recognition under Section 7 of the Act are not confined only to prepare the students for admission to the Board Examination. These include as discussed above the requirement to follow the curriculum, course books, appointment of teachers in proportion to the number of subjects for which recognition has been granted, in the ratio of the number of students as well as service conditions of the teachers under the Government Order dated 10th August, 2001. These service conditions include essential qualifications, method of appointment, constitution of selection committee, benefits of service, disciplinary action which includes termination of services, resignation and appeal to DIOS. The Board can also give directions to the private institutions to terminate services of teachers, if any subject or any section is to be closed under its directions. Apart from these statutory functions, the recognised unaided educational institutions are also required to provide for free and compulsory education, if it has received any benefits from the State, and even otherwise on the reimbursement per child of the expenditure fixed in accordance with the provisions of the Act. The recognised but unaided schools were always under obligations to provide education, which is fundamental right of every child, now recognised specifically under Art. 21A, and enforced by the Right to Free and Compulsory Education under the Act of 2009. The judgment in M. K. Gandhi (Supra) was rendered in respect of Delhi Public School recognised by the Central Board of Secondary Education, which was a society having its own bye-laws. Further in General Manager, Kisan Sahkari Chini Mill Ltd. Vs. Satrughan Nishad, (2003) 8 SCC 639, the mill was held to be cooperative society registered under the U.P. Cooperative Societies act, 1965 with no control of the State in its functioning much less a deep and pervasive one. In Army School, Gorakhpur Vs. Smt. Shilpi Paul, 2005 (1) ESC (Alld.) 342 the army school was not held to be State under Art. 12 of the Constitution, as it was run by welfare society.
20.I find substance in the submission of Shri Shesh Kumar, learned counsel for the petitioner, that the educational institution is recognized under the Act of 1921 present and even if it is un-aided, it has to carry out several statutory functions. The teachers of such institutions have statutory conditions of service prescribed under the Government order dated 10.8.2001 issued in exercise of powers under Section 7AA (3) of the Act of 1921. In the present scenario, once the legislature has enacted Article 21-A of Constitution of India, by which every right had been conferred in favour of the children for free and compulsory education and as such, under Right of Children to Free and Compulsory Education Act, 2009, all schools, educational institutions including unaided schools and institutions are under statutory obligation to provide education to children. Therefore, in the present context, it is hard to believe that even though the legislature has enacted Article 21-A of Constitution of India, then the argument advanced by Mr. Anurag Khanna cannot be sustained and the writ petition is very much maintainable.
21.It is admitted to both the parties that the institution is recognized but unaided institution under the Act of 1921. The provisions of Payment of Salaries Act, 1971 and U.P. Secondary Education Service Commission Act, 1982 are not applicable to the teachers of the institution. The management pays the salary from its own sources and fees are realized from the students. The service conditions of a teacher in the institution are to be regulated in accordance with the orders issued under Section 7AA of the Act of 1921 and as such the Government Order dated 10.8.2001, which had been issued for regulating the service conditions of teachers in unaided institution are fully applicable to the present institution."
Per contra, learned counsel appearing for the respondents submits that the institution in question is a private unaided educational institution, which has neither been established nor recognized under any statute so as to discharge any statutory or public duty. It is further submitted that the institution is not receiving any financial aid or grant from the Government and merely provides free education to the children of the village as a voluntary measure. In such circumstances, according to learned counsel, the institution cannot be regarded as an authority or body amenable to the writ jurisdiction under Article 226 of the Constitution. It is, therefore, contended that no writ petition would be maintainable against any action of such institution, the dispute, if any, being purely private in character and falling outside the scope of public law.
Learned counsel appearing for the respondents has further submitted that the reliance placed by learned counsel for the petitioner upon the Full Bench judgment of this Court in Uttam Chand Rawat (supra), is wholly misplaced and the said judgment has no application to the facts of the present case. It is contended that the Full Bench, while delineating the scope of the writ jurisdiction under Article 226 of the Constitution, has categorically held that a writ petition would not be maintainable where the controversy essentially arises out of a contractual obligation between the parties. According to learned counsel, even where an authority or private body is discharging a public function or public duty, the existence of such public element would not, by itself, render every dispute amenable to writ jurisdiction, particularly where the lis pertains to the private law domain, such as a dispute arising out of a contract of service. Since the controversy in the present case, according to the respondents, arises out of a purely contractual relationship between the petitioner and the private unaided institution, the writ petition is liable to be held not maintainable. The relevant observations of the Full Bench are reproduced hereinbelow:
“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 Apex Court in the case of Ramakrishnan Mission (supra) 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.
From the discussion aforesaid and in the light of the judgments referred above, a writ petition under Article 226 of the Constitution would be maintainable against (i) the Government; (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function.
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. 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.There action under challenge falls in domain of public law and not under common law.
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 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. If the writ petition refers to contractual obligation inter se between the parties, it would not be maintainable. Thus, the twin test, as suggested by us in this judgment is to be satisfied for maintainability of the writ petition and that too, after taking notice of the finding and observation made by us in reference to the nature of authority or person. Accordingly, we answer the questions referred by learned Single Judge in following terms :
(1)The remedy under Article 226 of the Constitution of India would be available against an authority or a person only when twin tests are satisfied. The authority or the person should not only discharge public function or public duty but the action challenged therein should fall in the domain of public law. The writ petition would not be maintainable against an authority or person even if it is discharging public function/public duty, if the controversy pertains to the private law such as a dispute arising out of contract or under the common law.”
Learned counsel appearing for the respondents has further placed reliance upon the judgment of the Hon'ble Supreme Court in St. Mary's Education Society and another v. Rajendra Prasad Bhargava and others, reported in 2022 SCC OnLine SC 1091, wherein the Hon'ble Apex Court, while considering the maintainability of a writ petition against a private educational institution, has held that an employee of a private educational institution cannot ordinarily invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution in respect of service matters where the conditions of service are neither governed nor regulated by any statutory provision. It has been submitted that, in the absence of any statutory character attaching to the service conditions, the dispute remains within the realm of private law and cannot be adjudicated in exercise of writ jurisdiction. Learned counsel has relied, in particular, upon the observations contained in paragraph 69 of the said judgment, which are reproduced hereinbelow:
“(a)An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public.
(b)Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element 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.
(c)It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a Constitutional Court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a "public function" or "public duty" be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service.”
Learned counsel appearing for the respondents has further placed reliance upon the judgment of the Hon'ble Supreme Court in Army Welfare Education Society v. Sunil Kumar Sharma, reported in 2024 SCC OnLine SC 1683, wherein the Hon'ble Apex Court has held that a writ petition under Article 226 of the Constitution is not maintainable for adjudication of a purely private service or employment dispute between a private educational institution and its employees. The Supreme Court has clarified that, even if the activity of imparting education by a private educational institution is regarded as a public function, the relationship between the management of such institution and its employees remains contractual in nature and falls within the domain of private law. Consequently, the existence of a public element in the broader function performed by the institution does not, by itself, render every dispute arising between the institution and its employees amenable to the extraordinary writ jurisdiction of the High Court.
Learned counsel appearing for the respondents has further placed reliance upon the judgment of the Hon'ble Supreme Court in Dilip Kumar Pandey v. Union of India, reported in 2025 LiveLaw (SC) 629, wherein the Hon'ble Apex Court has held that a dispute arising out of an alleged breach of a contract does not, by itself, involve any element of public law. It has further been submitted that, in the context of a dispute relating to the service of teachers in a private educational institution, the institution cannot be regarded as discharging any public duty merely by virtue of imparting education. Thus, where the controversy essentially concerns enforcement of a contractual obligation arising from the relationship of employer and employee, the same falls within the realm of private law and does not ordinarily warrant invocation of the extraordinary jurisdiction under Article 226 of the Constitution. Learned counsel has relied, in particular, upon paragraph 20 of the aforesaid judgment, which is reproduced hereinbelow:
“20.The law laid down in this decision was followed by this Court in the case of Army Welfare Education Society. In that case, this Court dealt with a school taken over by the Army Welfare Education Society, which required existing teachers to requalify under new conditions. The High Court held that the school could not impose service conditions to the teachers' disadvantage. In the said decision, this Court was concerned with a case where a school was taken over by the petitioner the Army Welfare Education Society. A letter was sent to the teachers in the school run by St. Gabriel's Academy indicating that those among the teachers who are eligible in terms of CBSE guidelines would be considered for appointment on ad hoc basis for one year and thereafter, they will have to appear and qualify written test conducted by the Army Welfare Education Society. The teachers approached the High Court. Learned Single Judge held that the school cannot impose the service conditions on the teaching staff to their disadvantage. The issue before this Court in the said case was whether the Army Welfare Education Society was a "state" or "authority" within the meaning of Article 12 of the Constitution. This Court found that the Society was a purely unaided private Society established for the purpose of imparting education to the children of the army personnel. This Court applied the law laid down in the case of St. Mary's Education Society & Ors. and held that though the Society was imparting education, which involves public duty, the relationship between the respondents and the Army 'Welfare Education Society was that of an employee and private employer arising out of a private contract. Therefore, a breach of contract does not touch any public law element, and the school cannot be said to be discharging any public duty in connection with the employment of the teachers."
In view of the aforesaid legal position, learned counsel appearing for the respondents submits that the present writ petition, being directed against a purely private and contractual dispute, is not amenable to the writ jurisdiction of this Court and is, therefore, liable to be dismissed as not maintainable.
I have carefully considered the rival submissions advanced by learned counsel for the parties and have also examined the judgments relied upon by them on the question of maintainability.
There can be no quarrel with the proposition, enunciated in the aforesaid case of Andi Mukta Sadguru (supra), that the jurisdiction under Article 226 is not confined, in its operation, to statutory authorities or instrumentalities of the State. A writ of mandamus may, in an appropriate case, issue against a private body where the obligation sought to be enforced is of a public character and the body concerned is charged with discharging a public duty. The juridical complexion of the respondent, therefore, is not by itself conclusive; what assumes primacy is the nature of the duty sought to be enforced and the character of the lis brought before the Court.
The decision in VST Industries Ltd. (supra) equally underscores that the mere existence of a statutory obligation, or the fact that an activity may possess some element of public significance, does not ipso facto convert every obligation arising in the affairs of a private body into a public duty. The Court is required to ascertain whether the particular obligation sought to be enforced has a discernible public law element.
The Full Bench decision in Uttam Chand Rawat (supra) furnishes further guidance on this aspect. The existence of a public function or public duty may render a private body amenable to writ jurisdiction; nevertheless, that circumstance does not transmute every dispute arising between such body and an individual into a dispute of public law. Where the controversy remains embedded in a purely private contractual relationship, and no statutory right or public obligation is sought to be enforced, the extraordinary jurisdiction under Article 226 cannot ordinarily be invoked merely because the respondent happens to perform a function having some public significance.
The subsequent decisions relied upon by learned counsel for the respondents, including St. Mary's Education Society (supra) and Army Welfare Education Society (supra), reiterate the same distinction in the context of private educational institutions. The fact that education is undoubtedly an activity of considerable public importance does not, by itself, invest every aspect of the employer-employee relationship within a private educational institution with a public law character. The relationship between the management and its teaching staff, in the absence of a statutory framework governing the conditions of service, ordinarily remains contractual in nature.
The principle becomes still more compelling where the institution is a private trust, is managed by private persons, receives no financial aid or grant from the Government, and the conditions of service of its employees are not shown to be governed by any statutory provision having the requisite force and character. In such circumstances, the mere circumstance that the institution imparts education, or even that such education may serve a socially beneficial purpose, cannot furnish a sufficient jurisdictional foundation for invoking Article 226 against every decision taken by its management.
In the present case, the challenge is directed against the termination of the petitioner from service. The lis, therefore, is essentially between the petitioner and the private management in their respective capacities as employee and employer. No statutory right is shown to have been infringed; nor has any statutory duty of the respondent-trust, possessing a public law character, been demonstrated as having been breached. The grievance substantially concerns the legality and propriety of the termination of a contractual engagement. Such a dispute necessarily falls within the domain of private law unless the petitioner is able to establish that the relationship is regulated by a statutory provision or that the impugned action is intrinsically connected with the discharge of a public duty.
The reliance placed by learned counsel for the petitioner upon Andi Mukta Sadguru (supra) and the other judgments cited in support of the proposition that a private body can, in an appropriate case, be subjected to the writ jurisdiction of this Court, therefore, cannot be disputed as a statement of law. However, those decisions do not lay down the proposition that the mere status of an educational institution, or the public importance of imparting education, obliterates the distinction between public law and private law. The jurisdiction recognised therein is attracted where the obligation sought to be enforced is itself of a public character. That essential jurisdictional element is conspicuously absent in the controversy at hand.
Conversely, the authorities relied upon by learned counsel for the respondents are attracted to the precise character of the dispute before this Court. The institution is a private and unaided trust; it is not shown to be an instrumentality or agency of the State; it receives no governmental aid; the service relationship is not demonstrated to be governed by any statutory prescription; and the impugned action concerns the termination of an individual teacher from a private employment. The dispute thus remains confined to the private law domain and does not acquire a public law complexion merely by reason of the nature of the educational activity carried on by the institution.
The distinction, therefore, is between the amenability of a private body to writ jurisdiction and the maintainability of a particular claim against such body. The former may arise where the private body discharges a public duty; the latter necessarily depends upon the nature of the right asserted and the obligation sought to be enforced. A private institution may, in a given case, be amenable to Article 226, yet a particular dispute arising purely out of a contract of service may nevertheless remain outside the writ jurisdiction.
Applying the aforesaid principles to the facts of the present case, this Court is of the considered view that the impugned termination does not disclose any enforceable public law obligation on the part of the respondent-trust. The controversy is essentially contractual and private in character. The extraordinary jurisdiction under Article 226 cannot, therefore, be employed as a substitute for an ordinary remedy for adjudication of a private service dispute.
Accordingly, notwithstanding the broad proposition urged on behalf of the petitioner regarding the amenability of a private body to writ jurisdiction, the present writ petition is held to be not maintainable, the dispute being one arising out of a purely private contractual relationship between the petitioner and the respondent-institution.
The writ petition is, consequently, dismissed on the ground of maintainability alone.