# Sri Rajesh Kumar Srivastava & Ors v. State of U.P. & Ors

- **Citation:** (2020) 9 ILRA 118
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-28
- **Case number:** Writ A No. 29911 of 2012
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-rajesh-kumar-srivastava-ors-v-state-of-u-p-ors-45918
- **Pages:** 12

## Headnote

A. Administrative Law - Termination -
Maintainability of writ petition - Private
Institutions
imparting
education
to
students from the age of six years
onwards,
including
higher
education,
perform public duty primarily a State
function,
therefore
are
amenable
to
judicial review of the High Court under
Article 226 of the Constitution of India.
(Para 7 as held in Roychan Abraham (infra), 15)

The Police Modern School, 12th Battalion, PAC,
Fatehpur,
is
an
educational
institution
established by the U.P. Police Shiksha Samiti, a
Society registered under the Act of 1860. The
Society runs the educational institution and it is
governed by the rules/bye-laws of the Society.
The institution is not receiving any aid from the
State and finances for its running are generated
by way of collections received from fee and
voluntary contributions made by the police
officials of the 12th Battalion, PAC, Fatehpur.
Association of police officers is managing the
affairs of the Society and the institution purely
9 All. Sri Rajesh Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
119
for private purposes inasmuch as exercise of
power by them flows from the provisions of the
bye-laws and not by any statute/law. The
institution is, therefore, a private person having
separate and distinct entity which is not shown
to be 'State' within the meaning of Article 12 of
the Constitution of India. (Para 13)

Notwithstanding the fact that such institution is not
a' State' within the meaning of Article 12, in view
of what has been held by the Larger Bench in
Roychan Abraham (infra) this writ petition would
be
maintainable
against
privately
managed
unaided educational institution. (Para 15)

B. Contractual and commercial obligations
are enforceable only by ordinary action
and not by judicial review. Even if a body
performing public duty is amenable to writ
jurisdiction, all its decisions are not
subject to judicial review. Only those
decisions which
have public element
therein can be judicially reviewed under
writ jurisdiction. (Para 18)

In the facts of the present case, it is admitted
that service conditions of petitioners are not
governed by any statutory service regulations.
The
employment
offered
to
petitioners,
therefore, would lie purely in the realm of
private contract of service. The petitioners are,
in essence, seeking enforcement of their private
contract by grant of necessary directions/writ.
The principle that contract of personal
service cannot be enforced is a well
recognized principle in law. This law,
however, is subjected to three exceptions as
have been noticed by the Apex Court in
Executive Committee of Vaish Degree College
(infra), which are extracted hereinafter:

(i) where a public servant is sought to be
removed from service in contravention of the
provisions of Article 311 of the Constitution of
India; (ii) where a worker is sought to be
reinstated on being

## Text

_Characters 0–39,886 of 41,819. This is a partial read: ask again with offset=39886 for what follows._

118 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh & Ors. Vs. State of U.P. & Ors. 2014 (4)
ADJ 356 and by a learned Single Judge in
Suresh Kumar & Ors. Vs. State of U.P. and
Another 2016 (10) ADJ 391.

41. When a vacancy is not a part of
backlog vacancy, then in a recruitment 100
per cent vacancies cannot be reserved since
it is well settled that in one selection more
that 50 per cent vacancies cannot be kept
reserved
except
the
cases
where
recruitment is in respect of backlog
vacancies. This is clearly provided in
Section 3 second proviso of U.P. Public
Services
(Reservation
For
Scheduled
Castes,
Scheduled
Tribes
and
Other
Backward Classes) Act, 1994 (hereinafter
referred to as "Act, 1994" ) which read as
under :

"Provided further that reservation
of vacancies for all categories of persons
shall not exceed in any year of recruitment
fifty per cent of the total vacancies of that
year as also fifty per cent of the cadre
strength of the service to which the
recruitment is to be made."

42. This is also settled law by a
Constitution Bench in Indra Sawhney Vs.
Union of India, 1992 Supp. (3) SCC 217.

43. In view of above, advertisement,
in my view, with regard to two vacancies of
Driver is patently illegal and liable to be
quashed.

44. In the result, writ petition is partly
allowed to the extent that advertisement
dated 06.06.2003 is quashed. In respect of
second advertisement, I find that nothing
has been proceeded further, therefore, it
would be appropriate for the respondents to
advertise vacancies afresh and fill in the
same in accordance with Rules.

45. With respect to other reliefs, since
petitioners are not entitled for the same,
writ petition is dismissed.
----------
(2020)09ILR A118
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.01.2020

BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 29911 of 2012

Sri Rajesh Kumar Srivastava & Ors.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Satya Prakash Pandey, Sri Vivek
Srivastava

Counsel for the Respondents:
C.S.C., Sri R.S. Prasad, Sri Vikram Bahadur
Singh, Sri Naresh Chandra Tripathi

A. Administrative Law - Termination -
Maintainability of writ petition - Private
Institutions
imparting
education
to
students from the age of six years
onwards,
including
higher
education,
perform public duty primarily a State
function,
therefore
are
amenable
to
judicial review of the High Court under
Article 226 of the Constitution of India.
(Para 7 as held in Roychan Abraham (infra), 15)

The Police Modern School, 12th Battalion, PAC,
Fatehpur,
is
an
educational
institution
established by the U.P. Police Shiksha Samiti, a
Society registered under the Act of 1860. The
Society runs the educational institution and it is
governed by the rules/bye-laws of the Society.
The institution is not receiving any aid from the
State and finances for its running are generated
by way of collections received from fee and
voluntary contributions made by the police
officials of the 12th Battalion, PAC, Fatehpur.
Association of police officers is managing the
affairs of the Society and the institution purely
9 All. Sri Rajesh Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
119
for private purposes inasmuch as exercise of
power by them flows from the provisions of the
bye-laws and not by any statute/law. The
institution is, therefore, a private person having
separate and distinct entity which is not shown
to be 'State' within the meaning of Article 12 of
the Constitution of India. (Para 13)

Notwithstanding the fact that such institution is not
a' State' within the meaning of Article 12, in view
of what has been held by the Larger Bench in
Roychan Abraham (infra) this writ petition would
be
maintainable
against
privately
managed
unaided educational institution. (Para 15)

B. Contractual and commercial obligations
are enforceable only by ordinary action
and not by judicial review. Even if a body
performing public duty is amenable to writ
jurisdiction, all its decisions are not
subject to judicial review. Only those
decisions which
have public element
therein can be judicially reviewed under
writ jurisdiction. (Para 18)

In the facts of the present case, it is admitted
that service conditions of petitioners are not
governed by any statutory service regulations.
The
employment
offered
to
petitioners,
therefore, would lie purely in the realm of
private contract of service. The petitioners are,
in essence, seeking enforcement of their private
contract by grant of necessary directions/writ.
The principle that contract of personal
service cannot be enforced is a well
recognized principle in law. This law,
however, is subjected to three exceptions as
have been noticed by the Apex Court in
Executive Committee of Vaish Degree College
(infra), which are extracted hereinafter:

(i) where a public servant is sought to be
removed from service in contravention of the
provisions of Article 311 of the Constitution of
India; (ii) where a worker is sought to be
reinstated on being dismissed under the
Industrial Law; and (iii) where a statutory body
acts in breach or violation of the mandatory
provisions of the statute. (Para 16)

The case in hand is not shown to be covered by
any of the three exceptions to the proposition
that contract of personal service cannot be
enforced. Neither the protection of Article 311 of
the Constitution of India would be available to
petitioners nor they are entitled to any
benefit/protection of the Industrial Disputes Act.
The petitioners would not fall in the third
category also inasmuch as the employer herein
is not a 'State' within the meaning of Article 12
nor
any
violation
of
statutory
rules
or
regulations is shown to exist in the facts of the
present case. (Para 17)

Petitioners in respect of their employment
offered by the privately managed unaided
educational institution are subject to contract of
personal service as per the common law rights
and are not covered by any of the three
exceptions noticed by the Apex Court in
Executive Committee of Vaish Degree College
(infra) which may justify a writ or direction by
this Court to allow the petitioners to continue in
the employment, in exercise of its writ
jurisdiction. (Para 20)

Writ Petition dismissed. (E-4)

Precedent followed:

1. Roychan Abraham Vs St. of U.P. & ors., 2019
(3) ADJ 391 (FB) (Para 7, 14)

2. Executive Committee of Vaish Degree
College, Vs Lakshmi Narain & ors., (1976) 2 SCC
58 (Para 12, 16)

3. K.K. Saksena Vs International Commission ON
Irrigation and Drainage and others, (2015) 4
SCC 670 (Para 11)

4. Ajai Hasia & ors. Vs Khalid Mujib Sehravardi &
ors., (1981) 1 SCC 722 (Para 18)

5. Shri Anadi Mukta Sadguru Shree Muktajee
Vandasjiswami
Suvarna
Jayanti
Mahotsav
Smarak Trust & ors. Vs V.R. Rudani & ors.,
(1989) 2 SCC 691 (Para 18)

6. Ramana Dayaram Shetty Vs International
Airport Authority of India, (1979) 3 SCC 489
(Para 18)

7. Pradeep Kumar Biswas & ors. Vs Indian
Institute of Chemical Biology & ors., (2002) 5
SCC 111 (Para 18)
120 INDIAN LAW REPORTS ALLAHABAD SERIES
8. M/s Zee Telefilms Limited & anr. Vs Union of
India & ors., (2005) 4 SCC 649 (Para 18)

9. Ramakrishna Mission & anr. Vs Kago Kunya &
ors., Civil Appeal No. 2394 of 2019 (Para 11)

Precedent cited:

1. Ramesh Ahluwalia Vs St. of Punjab & ors.,
(2012) 12 SCC 331 (Para 7)

2. M.K. Gandhi & ors. Vs Director of Education
(Secondary) U.P., & ors., 2006 (62) ALR 27
(Para 7)

3. Committee of Management LA Martiniere
College, Lucknow through its Principal & anr. Vs
Vatsal Gupta & ors., Order dated 26.07.2016,
passed by Apex Court in Civil Appeal No. 7030
of 2016 (Para 9)

Present petition challenges notice/orders
dated 27.03.2012 and 31.03.2012, passed
by Commandant, 12th Battalion P.A.C.
Fatehpur/Manager, Managing Committee,
Police Modern School, 12th Bn. P.A.C.,
Fatehpur.

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. Petitioners, who are four in
number, have filed the present writ petition
challenging notice/orders dated 27.3.2012
and 31.3.2012, passed by respondent no.5,
which are contained in Annexure-11 & 13
to 16 to the writ petition. The order dated
31.3.2012 notices that the petitioners had
failed to appear in the screening test
organized by the institution to assess the
teaching ability and that they had failed to
participate in such test previously also. An
inference, therefore, has been drawn that
petitioners
have
failed
to
provide
qualitative teaching in the institution and
by giving them a month's salary their
services have been terminated. These
orders
have
been
passed
by
the
Commandant,
12th
Battalion,
PAC,
Fatehpur in his capacity as an office bearer
of the Society running the educational
institution in question.

2. The orders are assailed primarily
on the ground that principles of natural
justice have been breached inasmuch as no
notice or opportunity of any kind was given
to the petitioners before terminating their
services. It is also urged that the petitioners
were selected after undergoing a fair and
transparent
process,
long
back,
and
therefore, they cannot be compelled to
appear in the screening test for which no
provision otherwise exists in the rules of
the Society that governs the institution. It is
also urged that petitioners' act of not
participating in the screening test cannot be
construed as an act of misconduct, nor
would it justify the order of termination
against petitioners. The petitioners further
claim that they were provided pay scale of
Rs.1100-1550 vide letter dated 13.4.2000
and have been denied benefit of pay
revision consequent upon introduction of
Sixth Pay Commission Report.

3. The petition is opposed by the
institution on the ground that a writ would not
lie against it, which is purely a private body
and is neither receiving any aid nor is
regulated by any statutory provisions. It is
sought to be contended that the police
personnel for the welfare of their children
have formed a Society known as Uttar
Pradesh Police Shiksha Samiti, which is duly
registered under the Societies Registration
Act, 1860. The payment of salary to the
employees/teachers is released from the funds
generated by way of contribution made by
the police personnel whose children are
studying in the institution and/or from the fee
collected from students and that no budgetary
support or aid of any kind is provided by the
State.
9 All. Sri Rajesh Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
121

4. A supplementary counter affidavit
has been filed in which it is asserted that
merely because officials of the Police
Department of the State of Uttar Pradesh
are members of the Society, it would not
change the nature of the Society itself,
which is governed by its own bye-laws.
The rules of the Society as also its
registration
etc.
have
been
annexed
alongwith
the
supplementary
counter
affidavit. Clause 11 of the bye-laws of
Society provides that financial resources
for the institution would be arranged from
the fee received from the students or from
the contributions made by the members. A
sum of Rs.10 is contributed by each
officer/employee posted in the Battalion
and a separate fund in the name of PAC
Shiksha Nidhi, 12th Battalion, Fatehpur is
created. A member also contributes to the
funds by voluntary contributions/donations
etc. In para 2 of the supplementary counter
affidavit it is asserted that the institution is
purely a private unaided educational
institution which is not receiving any grantin-aid from the State and is not subject to
any statutory regulations or control. A letter
of the Central Board of Secondary
Education dated 10.7.2012 addressed to the
Principal, Police Modern School, 12th
Battalion, Fatehpur is also annexed, as per
which approval of middle class syllabus (IVIII) has been provisionally approved for a
period of three years i.e. 1.4.2012 to
31.3.2015. The letter of CBSE also
provides that the school shall appoint only
qualified and eligible staff as per the
qualifications laid down in the rules.

5. The petitioners, however, contend
that institution has been created for the
benefit of children of state employees and
the management vests exclusively in the
officials of the State, and therefore, a writ
would lie against the institution. According
to them, the orders of termination are liable
to be quashed for the reasons already
noticed above.

6. From the respective submissions
advanced
following
issues
arise
for
consideration in the facts of the present
case:-

(I)
Whether
the
privately
managed unaided educational institution is
a 'State' within the meaning of Article 12 of
the Constitution of India and a writ petition
would be maintainable against it?

(II) Whether any writ is liable to
be issued for quashing the order of
termination,
and
thereby
allow
the
petitioners to continue in the employment
of the institution, as is prayed for?

7. Learned counsel for the petitioner
has placed reliance upon a recent Full
Bench Judgment of this Court in Roychan
Abraham vs. State of U.P. and others, 2019
(3) ADJ 391 (FB). The reference to the
Larger Bench was occasioned in view of
the conflict of opinion on the issue,
particularly after the judgment of the Apex
Court in Ramesh Ahluwalia vs. State of
Punjab and others, (2012) 12 SCC 331. The
correctness of earlier Full Bench Judgment
in M. K. Gandhi and others vs. Director of
Education (Secondary) U.P. and others,
2006 (62) ALR 27 was doubted. The Full
Bench has examined the issue in detail and
following observations contained in paras
60 to 65 of the judgment in Roychan
Abraham
(supra)
are
reproduced
hereinafter:-

"60. The question as to whether a
private institution imparting education is
amenable to judicial review under Article
226 of the Constitution, though not a 'State'
within the meaning of Article 12 of the
122 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution, was not an issue in M.K.
Gandhi. The Full Bench decision is
confined to the facts arising in the case and
is not an authority on the question that we
are called upon to answer. The Full Bench
for the reasons stated in para 36 and 37
declined to entertain writ petition against
the private educational institution.

''36.
Is
a
writ
petition
maintainable for,

violation of the bye-laws that do
not have statutory force?

enforcement of a private contract
between the school and the teacher?

We are afraid; our answer has to
be in the negative. The Full Bench of our
Court in Aley Ahmad Abidi v. District
Inspector of Schools, AIR 1977 All 539,
(The Aley Abidi Case) has held that:

''The Committee of Management
of an Intermediate College is not a statutory
body. Nevertheless, a writ petition filed
against it is maintainable if such petition is
for enforcement of performance of any
legal obligations or duties imposed on such
committee by a statute.''

37.
The
committee
of
management of the D.P.S. School is
recognised by the Board but it is neither a
statutory body nor a State within the
meaning of Article 12. The legal obligation
or duty on the D.P.S. School is neither
imposed by any statute nor by any statutory
provision : it has been imposed by the
affiliation bye-laws and agreement which is
a contract between the parties and nonstatutory. In view of this the writ petition is
not maintainable against the D.P.S. School
for violation of the affiliation bye-laws.''

61. In Anjani Kumar Srivastava,
the
Division
Bench
though
noticing
Ramesh Ahluwalia declined to interfere for
the reason that private contract of service
between the master and servant was not
enforceable in writ jurisdiction. The case is
confined to the facts obtaining therein.

62. In Ms. Geeta Pushp v. Union
of India and others, 2018(3) ADJ 98, the
petitioner therein was a teacher in Army
Public School managed by the Army
Welfare Education Society, registered under
the Societies Registration Act, 1860. The
question for determination in the facts of
the case was whether a writ petition by an
employee or teacher for enforcement of
service
contract
against
the
private
institution was maintainable. It was held
that while retiring a teacher there was no
public law element in the action of the
private body. The Court, therefore, declined
to enforce the service contract in writ
jurisdiction. The cases herein above are not
reflective of the position of law that private
educational institution render public duty
and are amenable to judicial review under
Article 226 of the Constitution of India.
The Court in the given facts obtaining
therein declined the relief to the petitioner
as in the opinion of the Court there was no
public law element in the offending act
complained
against
the
educational
institution.

Conclusion:

63. We accordingly proceed to
answer the reference in the following
terms:

64.
Question
(i):
Private
Institutions imparting education to students
from the age of six years onwards,
including higher education, perform public
duty primarily a State function, therefore
are amenable to judicial review of the High
Court under Article 226 of the Constitution
of India.

65. Question (ii): The broad
principle of law which has been formulated
in the judgement of the Full Bench in M.K.
Gandhi and Division Bench in Anjani Kr.
Srivastava is confined to the facts obtaining
9 All. Sri Rajesh Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
123
therein and is not an authority on the
proposition of law that private educational
institutions do not render public function
and, therefore, are not amenable to judicial
review of the High Court. The judgements
do not require to be revisited."

8. It is contended on behalf of the
petitioners that the present writ petition
would
be
maintainable
against
the
respondent institution, even if it is a
privately managed unaided institution, in
view of the Full Bench Judgment in
Roychan Abraham (supra) and as the
impugned action is otherwise shown to be
arbitrary, the orders impugned are liable to
be quashed and the petitioners are entitled
to continue in service.

9. Per contra, Sri N. C. Tripathi,
learned
counsel
appearing
for
the
respondent institution has placed reliance
upon an order dated 26.7.2016, passed by
the Apex Court in Civil Appeal No.7030 of
2016 (Committee of Management LA
Martiniere College, Lucknow through its
Principal and another vs. Vatsal Gupta and
others), which reads as under:-

"Leave granted.

We have heard learned counsel
for the parties.

Appellant No.1 is an unaided
minority private institution. We see no
reason how a writ petition against that
institution could be entertained. The High
Court was clearly in error in entertaining
the writ petition and passing subsequent
directions.

Under the circumstances, the
appeal is allowed and the impugned
judgment and order passed by the High
Court is set aside."

10. The aforesaid appeal before the
Apex Court was directed against a Division
Bench Judgment in Special Appeal No.530
of 2015, whereby the appellant was
allowed to pursue his educational career in
11th & 12th in the institution concerned,
subject to restrictions noticed therein,
notwithstanding the fact that the institution
was
a
privately
managed
unaided
institution.

11. Reliance is also placed upon
judgments
of
the
Apex
Court
in
Ramakrishna Mission and another vs. Kago
Kunya and others in Civil Appeal No.2394
of 2019 and K. K. Saksena vs. International
Commission on Irrigation and Drainage
and others, (2015) 4 SCC 670 to submit
that in essence the petitioners are seeking
mandatory
injunction
to
continue
in
employment of private employer which is
impermissible in view of the law settled
that contract of personal service cannot be
enforced. The judgments are also relied
upon for the proposition that the writ
petition itself would not be maintainable
against the privately managed unaided
institution in question.

12.

Learned
counsel
for
the
respondent institution also places reliance
upon the judgment of the Apex Court in
Executive Committee of Vaish Degree
College vs. Lakshmi Narain and others,
(1976) 2 SCC 58 to submit that contract of
personal service otherwise cannot be
enforced and since the three exceptions laid
down by the Apex Court, therein, are not
attracted in the facts of the present,
therefore, no writ or direction can be issued
to enforce the contract of personal service.

13. Perusal of the materials brought
on record would go to show that the Police
Modern School, 12th Battalion, PAC,
124 INDIAN LAW REPORTS ALLAHABAD SERIES
Fatehpur, is an educational institution
established by the Uttar Pradesh Police
Shiksha Samiti, a Society registered under
the Act of 1860. The Society and the
educational institution run by it is governed
by the rules/bye-laws of the Society. The
institution is not receiving any aid from the
State and finances for its running are
generated by way of collections received
from fee and voluntary contributions made
by the police officials of the 12th Battalion,
PAC, Fatehpur. The association of police
officers in managing the affairs of the
Society and the institution is purely for
private purposes inasmuch as exercise of
power by them flows from the provisions
of the bye-laws and not by any statute/law.
The institution is, therefore, a private
person having separate and distinct entity
which is not shown to be 'State' within the
meaning of Article 12 of the Constitution of
India.

14. Much emphasis is laid by the
petitioners to contend that this petition filed
under Article 226 of the Constitution of
India would be maintainable in view of the
Full Bench Judgment of this Court in
Roychan Abraham (supra).

15. The question as to whether a writ
petition would be maintainable against a
privately managed unaided educational
institution has already been considered by
the Full Bench of this Court in Roychan
Abraham (supra), notwithstanding the fact
that such institution is not a 'State' within
the
meaning
of Article
12
of
the
Constitution of India. In view of what has
been held by the Larger Bench in Roychan
Abraham (supra) this writ petition would
be maintainable. The first issue, therefore,
does not pose much difficulty. However,
what has to be seen is that even if a writ
petition is held to be maintainable against
privately managed unaided educational
institution, yet a writ or direction is liable
to be issued in favour of teachers
concerned?

16. In the facts of the present case, it
is admitted that service conditions of
petitioners are not governed by any
statutory
service
regulations.
The
employment
offered
to
petitioners,
therefore, would lie purely in the realm of
private contract of service. The petitioners
are, in essence, seeking enforcement of
their private contract by grant of necessary
directions/writ. The principle that contract
of personal service cannot be enforced is a
well recognized principle in law. This law,
however, is subjected to three exceptions as
have been noticed by the Apex Court in
para 18 & 19 of the judgment in Executive
Committee of Vaish Degree College
(supra), which are extracted hereinafter:-

"18. On a consideration of the
authorities
mentioned
above,
it
is,
therefore, clear that a contract of personal
service cannot ordinarily be specifically
enforced and a court normally would not
give a declaration that the contract subsists
and the employee, even after having been
removed from service can be deemed to be
in service against the will and consent of
the employer. This rule, however, is subject
to three well recognised exceptions -- (i)
where a public servant is sought to be
removed from service in contravention of
the provisions of Article 311 of the
Constitution of India; (ii) where a worker is
sought to be reinstated on being dismissed
under the Industrial Law; and (iii) where a
statutory body acts in breach or violation of
the mandatory provisions of the statute.

19. In view of our finding that the
Executive Committee of the college in the
instant case was not a statutory body, the
9 All. Sri Rajesh Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
125
present case does not fall within any of the
excepted categories mentioned above, and
hence prima facie, the plaintiff/respondent
is not entitled to any declaration or
injunction. The learned Counsel for the
respondent, however, placed great reliance
on the decision of this Court in Sirsi
Municipality case in order to contend that
this decision had included within the fold
of its exceptions a fourth category, namely,
an institution which even though was a
non-statutory body, but was a local or a
public authority. Reliance was placed
particularly on the following observations
of Ray, J., as he then was, in that case :
[SCC p. 413 : SCC (L&S) p. 210, paras 17,
18]

"The third category of cases of
master and servant arises in regard to the
servant in the employment of the State or
of other public or local authorities or
bodies created under statute.

In the case of servant of the State
or of local authorities or statutory bodies,
courts have declared in appropriate cases
the dismissal to be invalid if the dismissal
is contrary to rules of natural justice or if
the dismissal is in violation of the
provisions of the statute."

17. The case in hand is not shown to
be covered by any of the three exceptions
to the proposition that contract of personal
service cannot be enforced. Neither the
protection of Article 311 of the Constitution
of India would be available to petitioners
nor
they
are
entitled
to
any
benefit/protection of the Industrial Disputes
Act. The petitioners would not fall in the
third category also inasmuch as the
employer herein is not a 'State' within the
meaning of Article 12 of the Constitution of
India nor any violation of statutory rules or
regulations is shown to exist in the facts of
the present case.

18. In K. K. Saksena (supra) the
Supreme Court had the occasion to
extensively
examine
the
issue
of
maintainability of the writ petition as also
the question of issuance of a writ to
specifically enforce contract of personal
service of an employee of a private Society
which allegedly was performing public
function. The Court in K. K. Saksena
(supra)
after
examining
the
earlier
judgments of the Apex Court in Ajay Hasia
and others vs. Khalid Mujib Sehravardi and
others, (1981) 1 SCC 722, Shri Anadi
Mukta
Sadguru
Shree
Muktajee
Vandasjiswami Suvarna Jayanti Mahotsav
Smarak Trust and others vs. V. R. Rudani
and others, (1989) 2 SCC 691, Ramana
Dayaram Shetty vs. International Airport
Authority of India, (1979) 3 SCC 489,
Pradeep Kumar Biswas and others vs.
Indian Institute of Chemical Biology and
others, (2002) 5 SCC 111 and M/s Zee
Telefilms Limited and another vs. Union of
India and others, (2005) 4 SCC 649, on the
issue, proceeded to observe as under in
para 43 to 53:-

"43. What follows from a minute
and careful reading of the aforesaid
judgments of this Court is that if a person
or authority is "State" within the meaning
of Article 12 of the Constitution, admittedly
a writ petition under Article 226 would lie
against such a person or body. However, we
may add that even in such cases writ would
not lie to enforce private law rights. There
are a catena of judgments on this aspect
and it is not necessary to refer to those
judgments as that is the basic principle of
judicial review of an action under the
administrative law. The reason is obvious.
A private law is that part of a legal system
which is a part of common law that
involves relationships between individuals,
such as law of contract or torts. Therefore,
126 INDIAN LAW REPORTS ALLAHABAD SERIES
even if writ petition would be maintainable
against an authority, which is "State" under
Article 12 of the Constitution, before
issuing any writ, particularly writ of
mandamus, the Court has to satisfy that
action of such an authority, which is
challenged, is in the domain of public law
as distinguished from private law.

44. Within a couple of years of
the framing of the Constitution, this Court
remarked in Election Commission of India
v. Saka Venkata Rao [Election Commission
of India v. Saka Venkata Rao, AIR 1953 SC
210] that administrative law in India has
been shaped in the English mould. Power
to issue writ or any order of direction for
"any other purpose" has been held to be
included in Article 226 of the Constitution
with a view apparently to place all the High
Courts in this country in somewhat the
same position as the Court of the King's
Bench in England. It is for this reason
ordinary "private law remedies" are not
enforceable through extraordinary writ
jurisdiction, even though brought against
public authorities (see Administrative Law,
8th Edn., H.W.R. Wade and C.F. Forsyth, p.
656). In a number of decisions, this Court
has held that contractual and commercial
obligations
are
enforceable
only
by
ordinary action and not by judicial review.

45. On the other hand, even if a
person or authority does not come within
the sweep of Article 12 of the Constitution,
but is performing public duty, writ petition
can lie and writ of mandamus or
appropriate writ can be issued. However, as
noted in Federal Bank Ltd. [Federal Bank
Ltd. v. Sagar Thomas, (2003) 10 SCC 733]
, such a private body should either run
substantially on State funding or discharge
public duty/positive obligation of public
nature or is under liability to discharge any
function under any statute, to compel it to
perform such a statutory function.

46. In the present case, since
ICID is not funded by the Government nor
is it discharging any function under any
statute, the only question is as to whether it
is discharging public duty or positive
obligation of public nature.

47. It is clear from the reading of
the impugned judgment that the High Court
was fully conscious of the principles laid
down
in
the
aforesaid
judgments,
cognizance whereof is duly taken by the
High Court. Applying the test in the case at
hand, namely, that of ICID, the High Court
opined that it was not discharging any
public function or public duty, which would
make it amenable to the writ jurisdiction of
the High Court under Article 226. The
discussion of the High Court is contained in
paras 34 to 36 and we reproduce the same
for the purpose of our appreciation: (K.K.
Saksena
case
[K.K.
Saksena
v.
International Commission on Irrigation
and Drainage, 2011 SCC OnLine Del 1894
: (2011) 180 DLT 204] , SCC OnLine Del)

"34. On a perusal of the preamble
and the objects, it is clear as crystal that the
respondent has been established as a
scientific,
technical,
professional
and
voluntary non-governmental international
organisation, dedicated to enhance the
worldwide supply of food and fibre for all
people by improving water and land
management and the productivity of
irrigated and drained lands so that there is
appropriate
management
of
water,
environment
and
the
application
of
irrigation, drainage and flood control
techniques. It is required to consider certain
kind of objects which are basically a
facilitation process. It cannot be said that
the functions that are carried out by ICID
are anyway similar to or closely related to
those performable by the State in its
sovereign capacity. It is fundamentally in
the realm of collection of data, research,
9 All. Sri Rajesh Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
127
holding of seminars and organising studies,
promotion
of
the
development
and
systematic
management
of
sustained
irrigation and drainage systems, publication
of newsletter, pamphlets and bulletins and
its role extends beyond the territorial
boundaries of India. The memberships
extend to participating countries and
sometimes, as bye-law would reveal, ICID
encourages the participation of interested
national and non-member countries on
certain conditions.

35. As has been held in Federal
Bank Ltd. [Federal Bank Ltd. v. Sagar
Thomas, (2003) 10 SCC 733] solely
because a private company carries on
banking business, it cannot be said that it
would be amenable to the writ jurisdiction.
The Apex Court has opined that the
provisions of the Banking Regulation Act
and other statutes have the regulatory
measure to play. The activities undertaken
by
the
respondent
Society,
a
nongovernmental organisation, do not actually
partake the nature of public duty or State
actions. There is absence of public element
as has been stated in V.R. Rudani [Andi
Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak
Trust v. V.R. Rudani, (1989) 2 SCC 691]
and Sri Venkateswara Hindu College of
Engg. [K. Krishnamacharyulu v. Sri
Venkateswara Hindu College of Engg.,
(1997) 3 SCC 571 : 1997 SCC (L&S) 841]
It also does not discharge duties having a
positive application of public nature. It
carries on voluntary activities which many
a non-governmental organisations perform.
The said activities cannot be stated to be
remotely connected with the activities of
the State. On a scrutiny of the Constitution
and bye-laws, it is difficult to hold that the
respondent Society has obligation to
discharge certain activities which are
statutory or of public character. The
concept of public duty cannot be construed
in a vacuum. A private society, in certain
cases, may be amenable to the writ
jurisdiction if the writ court is satisfied that
it is necessary to compel such society or
association
to
enforce
any
statutory
obligation or such obligations of public
nature casting positive public obligation
upon it.

36. As we perceive, the only
object of ICID is for promoting the
development and application of certain
aspects, which have been voluntarily
undertaken but the said activities cannot be
said that ICID carries on public duties to
make
itself
amenable
to
the
writ
jurisdiction under Article 226 of the
Constitution."

48. We are in agreement with the
aforesaid analysis by the High Court and it
answers all the arguments raised by the
learned Senior Counsel appearing for the
appellant. The learned counsel argued that
once the society is registered in India it
cannot be treated as international body.
This argument is hardly of any relevance in
determining the character of ICID. The
focus has to be on the function discharged
by ICID, namely, whether it is discharging
any public duties. Though much mileage
was sought to be drawn from the function
incorporated in the MoA of ICID, namely,
to
encourage
progress
in
design,
construction, maintenance and operation of
large and small irrigation works and canals,
etc. that by itself would not make it a
public duty cast on ICID. We cannot lose
sight of the fact that ICID is a private body
which has no State funding. Further, no
liability under any statute is cast upon ICID
to discharge the aforesaid function. The
High Court is right in its observation that
even when object of ICID is to promote the
development and application of certain
aspects,
the
same
are
voluntarily
128 INDIAN LAW REPORTS ALLAHABAD SERIES
undertaken and there is no obligation to
discharge certain activities which are
statutory or of public character.

49. There is yet another very
significant aspect which needs to be
highlighted at this juncture. Even if a body
performing public duty is amenable to writ
jurisdiction, all its decisions are not subject
to judicial review, as already pointed out
above. Only those decisions which have
public element therein can be judicially
reviewed under writ jurisdiction. In Praga
Tools Corpn. v. C.A. Imanual [(1969) 1
SCC 585] , as already discussed above, this
Court held that the action challenged did
not have public element and writ of
mandamus could not be issued as the action
was essentially of a private character. That
was a case where the employee concerned
was seeking reinstatement to an office.

50. We have also pointed out
above that in Saka Venkata Rao [Election
Commission of India v. Saka Venkata Rao,
AIR 1953 SC 210] this Court had observed
that administrative law in India has been
shaped on the lines of English law. There
are a catena of judgments in English courts
taking same view, namely, contractual and
commercial obligations are enforceable
only by ordinary action and not by judicial
review. In R. (Hopley) v. Liverpool Health
Authority [2002 EWHC 1723 (Admin) :
2002
Lloyd's
Med
Rep
494]
(unreported)(30-7-2002), Justice Pitchford
helpfully set out three things that had to be
identified when considering whether a
public body with statutory powers was
exercising a public function amenable to
judicial review or a private function. They
are: (i) whether the defendant was a public
body exercising statutory powers; (ii)
whether the function being performed in
the exercise of those powers was a public
or a private one; and (iii) whether the
defendant was performing a public duty
owed to the claimant in the particular
circumstances under consideration.

51. Even in Andi Mukta Sadguru
[Andi Mukta Sadguru Shree Muktajee
Vandas Swami Suvarna Jayanti Mahotsav
Smarak Trust v. V.R. Rudani, (1989) 2 SCC
691] , which took a revolutionary turn and
departure from the earlier views, this Court
held that "any other authority" mentioned
in Article 226 is not confined to statutory
authorities or instrumentalities of the State
defined
under
Article
12
of
the
Constitution, it also emphasised that if the
rights are purely of a private character, no
mandamus could issue.

52. It is trite that contract of
personal service cannot be enforced. There
are three exceptions to this rule, namely:

(i) when the employee is a public
servant working under the Union of India
or State;

(ii) when such an employee is
employed by an authority/body which is a
State within the meaning of Article 12 of
the Constitution of India; and

(iii) when such an employee is
"workmen" within the meaning of Section
2(s) of the Industrial Disputes Act, 1947
and
raises
a
dispute
regarding
his
termination by invoking the machinery
under the said Act.

In the first two cases, the
employment ceases to have private law
character
and
"status"
to
such
an
employment is attached. In the third
category of cases, it is the Industrial
Disputes Act which confers jurisdiction on
the Labour Court/Industrial Tribunal to
grant reinstatement in case termination is
found to be illegal."

19. The judgment of the Apex Court
in K. K. Saksena (supra) has recently been
followed
by
the
Apex
Court
in
Ramakrishna Mission (supra), where their
9 All. Prem Prakash Singh Vs. State of U.P. & Ors.
129
Lordships proceeded to observe as under in
para 36 to 39:-

"36. For the reasons that we have
adduced above, we hold that neither the
Ramakrishna Mission, nor the hospital
would constitute an authority within the
meaning of Article 226 of the Constitution.

37. Before concluding, it would
be necessary to also advert to the fact that
while the learned Single Judge had come to
the conclusion that the appellants are ''State'
within the meaning of Article 12, the
Division Bench has not accepted that
finding. The Division Bench ruled, as we
have noticed earlier, that the appellants do
not fall within the description of ''State'
under Article 12. This finding has not been
challenged before this Court by the State of
Arunachal Pradesh.

38. Even otherwise, we are
clearly of the view that the tests which have
been propounded in the line of authority of
this Court in Ajay Hasia v Khalid Mujib
Sehravardi9, Pradeep Kumar Biswas v
Indian Institute of Chemical Biology 10
and Jatya Pal Singh v Union of India11
support the conclusion of the High Court
that the appellants are not ''State' within the
meaning of Article 12 of the Constitution of
India.

39.