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Judgment
Date : 06-08-2026 This Court has heard Ms. Sugandhi Kumari, the petitioner in person and Mr. Abhinav Shrivastava, learned Senior Advocate appearing on behalf of the respondent nos. 2 and 3, whereas respondent nos. 9, 10 and 11, on notice, appeared through Ms. Dimpal Kumari, learned Advocate.
The writ petition has been filed challenging the order dated 10.10.2019 stated to have been issued jointly by the Chairman, Secretary and Treasurer of Dharohar Jeevika Mahila Sankul Sangh Cluster–2 Dalsagar, Block–Buxar Sadar, whereby the petitioner, who was working as Cluster Facilitator, Dharohar Jeevika Mahila Sankul Sangh, Buxar, has been terminated.
It would be worth noticing here that a Bench of this Court vide its order dated 28.04.2026 while considering the fact that despite service of notice upon respondent nos. 9 to 12, the respondents, who have issued the termination order, have not entered appearance to contest the writ petition filed by the petitioner, stayed the impugned order of termination. Notwithstanding the order granting stay of operation of the impugned order of termination, when the petitioner has not been reinstated and/or her joining has not been accepted on her post of Cluster Facilitator, the petitioner preferred MJC No. 1576 of 2026. Both the matters were tagged together and taken up on 25.01.2026; on request of the learned Advocate for the respondent nos. 9, 10 and 11 to ensure filing of response to the writ petition, time was allowed with a clear observation that in the meantime the order dated 28.04.2026 must be complied in its letter and spirit.
Consequent thereupon, it has been informed that in deference to the order of this Court whereby operation of the impugned order has been stayed, the petitioner is asked to submit her joining and accordingly her joining was accepted. In the meanwhile, in compliance of the order of this Court, a counter affidavit is filed on behalf of respondent nos. 9, 10 and 11.
Mr. Abhinav Shrivastava, learned Senior Advocate appearing for the respondent nos. 2 and 3 along with Ms. Dimpal Kumari, who appears on behalf of other respondents as noted hereinabove, have made a preliminary objection with regard to maintainability of the writ petition as no writ would lie against the Cluster Level Federation, which is said to have been constituted under the Bihar Rural Livelihoods Promotion Society and State Rural Livelihoods Mission, Bihar. It is submitted that the petitioner had never been appointed to any civil post under the State Government and was merely engaged as Cluster Facilitator under the JEEVIKA Programme in accordance with the Cluster Facilitator Policy. The engagement of Cluster Facilitator is purely contractual and policy based, exclusively governed by the terms and conditions contained in the Policy. The petitioner has no statutory right to continue in service if the members of the Federation unanimously resolved to terminate her engagement after giving proper opportunity of hearing and consideration of her show cause reply. It is further contended that the respondent nos. 9, 10 and 11 are respectively Chairman, Secretary and Treasurer of the Cluster Level Federation, Dharohar Jeevika, Buxar; i.e. an autonomous Federation and in any circumstances, action taken against the petitioner upon various complaints of misconduct and irregularity leading to her termination cannot be subjected to judicial review. The petitioner has appropriate remedy available under the law but invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India is wholly misconceived and not justified.
On the other hand, the petitioner in person submitted that since the petitioner was duly appointed as a Cluster Facilitator under the policy of the State Government i.e., Bihar Rural Livelihoods Promotion Society and State Rural Livelihoods Mission, Bihar, in no circumstances, the writ petition is said to be not maintainable. The petitioner is one of the Cluster Facilitator engaged under JEEVIKA project for the universal mobilization of rural poor women and involved in the formation of nurturing of strong community institutions and, as such, discharging the public duty, besides the action of the respondents, especially the respondent nos. 9, 10 and 11 in dispensing with her service without any show cause notice or proper opportunity of hearing, the same is wholly illegal. She further argued that the law is well settled that an order passed in violation of the principles of natural justice is fit to be set aside and the plea of alternative remedy would not be a rigor to maintain the writ petition.
After having heard the petitioner, in person as also the learned Senior Advocate/Advocates for the respective parties, this Court is of the conscious opinion that even if a private body perform functions that are essentially public, governmental, or sovereign in nature, it owes a public duty to citizens and can be subjected to judicial review. Fundamental rights as incorporated in Part III of the Constitution are primarily enforceable against the “State”. However, the definition of the “State” under Article 12 includes a broad phrase i.e., other authorities. It is the Public Function Theory which bridges the gap between private entity operations and constitutional rights. Under Article 12 of the Constitution, it is used as a test to declare an entity as an agency or instrumentality of the State making its actions accountable for violating Fundamental Rights, whereas under Article 226 it allows the High Courts to issue writ against purely private bodies if they fail to perform a public duty, even if the body does not qualify as “State” under Article 12.
From the plain reading of the Constitutional provisions, it is manifestly imperative that the writs under Article 226 are issued not based on who the entity is, but upon the nature of the function it performs. In Sukhdev Singh & Ors. vs Bagatram Sardar Singh Raghuvanshi and Anr. [(1975) 1 SCC 421], the statutory bodies like LIC, ONGC and IFC were declared “State” because they were created by Statutes and performed public duties under State control. Subsequently, in the case of Ramana Dayaram Shetty vs. The International Airport Authority of India & Ors. [(1979) 3 SCC 489]; the 5-Point Test to determine if a body is an instrumentality of the State viz Financial assistance/funding from the State, deep and pervasive State control, monopoly status conferred or protected by the State, functions of public importance closely related to governmental functions and transfer of a government department to a corporation. In Ajay Hasia Etc vs. Khalid Mujib Sehravardi & Ors. [(1981) 1 SCC 722], the Hon’ble Supreme Court spelt out that even the Society registered under the Societies Registration Act, like an engineering college is a State if it meets the instrumentality test.
Considering all the previous decisions referred hereinabove, a 7-Judge Bench in the case of Pradeep Kumar Biswas vs. Indian Institute Of Chemical Biology & Ors. [(2002) 5 SCC 111] revisited while defining the Article 12 of the Constitution and clarifying that financial, functional and administrative dominance by the State is key to being a State but opened doors for broader remedies under Article 226 for public functions. This Court further takes note of the Special Bench decision of this Court in the case of The Organizer, Dehri C.D. & C.M. vs. The State of Bihar & Ors. [2014(1) PLJR 695] where the Court returned a finding that the BISCOMAUN, which is a Co-operative Society, is not performing any public duty or public function for and on behalf of the Government. Thus, the cumulative effect was no deep and pervasive control nor public duty or public function is being performed by the BISCOMAUN and thus the writ petition is said to be not maintainable. The Court further made it clear that a body performs a public function when it seeks to achieve an objective for the collective benefit of the public or a section thereof and exercises authority that is accepted by the public. In the said case, although the rules contemplate contributions from both the employer and the employee, the BISCOMAUN cannot be said to be performing a public function, as the collection and administration of such contributions are not intended for the benefit of the public or any section thereof but solely for the benefit of its own employees. Therefore, BISCOMAUN cannot be said to be discharging a public function.
The Courts while considering such aspect of the matter, as discussed hereinabove, followed several indicators to determine whether a private entity’s activity qualifies as public function, such as Sovereign/State-like power involving activities traditionally performed by the State viz maintaining law and order, running public transport, civil aviation. Monopolistic or Regulatory Power, such as bodies regulating major public activities like BCCI for cricket, private electricity distribution networks and also Public Obligation/Trust or other activities providing essential social goods like higher education, public healthcare, or basic utility infrastructure. In sum and substance, any action which causes impact on the public at large, the jurisdiction of Article 226 of the Constitution may be invoked. However, while the Public Function Theory expands judicial accountability, it was made clear that any dispute arising out of purely commercial or private contracts, such as private company firing an employee, a commercial lease agreement do not invoke the writ jurisdiction, even if one party is a public functionary, above all. Further the Court has also crystallized performing a public duty under Article 226 does not make a private entity “State” for all purposes and its employees cannot claim government job and protection under Article 311 of the Constitution.
Recently, the Hon’ble Supreme Court in a landmark judgment of St. Mary’s Educational Society & Anr. vs. Rajendra Prasad Bhargava & Ors. [(2023) 4 SCC 498] has illustratively summed up as follows:
“75.We may sum up our final conclusions as under:
75.1.An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public.
75.2.Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory provisions or the employer had the status of “State” within the expansive definition under Article 12 or it was found that the action complained of has public law element.
75.3.It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a constitutional court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a “public function” or “public duty” be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions 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.”
In the light of the aforesaid discussions, now we take up the facts of the case in hand as to whether the present writ petition is maintainable? It is not in dispute that the engagement of the petitioner on the post of Cluster Facilitator is done under JEEVIKA programme in terms with the cluster policy, which is entirely contractual in nature on a fixed honorarium whose service can be terminated by the Cluster Federation Executive Committee by giving prior show cause notice.
After careful reading of the policies of Cluster Federation, this Court does not find that the service conditions are being regulated by any statutory provisions or even the employer who is none else but the Cluster Federation had no status of the “State” within the expensive definition under Article 12. Moreover, the Court time and gain clarified that in absence of any service conditions being controlled or governed by the statutory provision, the matter would remain in the realm of ordinary contract of service. If there is any dispute with respect to the terms of employment of contract between the employee and the Society, such action may be termed ‘breach of contract’ However, it cannot, in any circumstances, be said to involve the discharge of a public duty. In the opinion of the Court, the action challenged in the present case lacks any public element. Therefore, in any view of the matter, no writ would lie.
Accordingly, both the writ petition as well as the MJC, which have been placed before this Court are held to be not maintainable and are hereby dismissed. However, it is made clear that the dismissal of the writ petition on account of having declared not maintainable does not preclude the petitioner to approach before the competent court/forum/authority for redressal of the grievance.