Bombay High Court
V. Pichumani And Ors vs Air India Ltd And Anr on 25 August, 2025
2025:BHC-OS:14229-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1876 OF 2001
WITH
CHAMBER SUMMONS NO. 284 OF 2004
Mr. M. Yogeshwar Raj,
101,Satyam-II, K.Raheja Complex,
Malad (East), Mumbai-400097. ...Petitioner
Versus
Air India Limitd,
Air India Building,
Nariman Point,
Mumbai-400021. ...Respondent
WRIT PETITION NO. 809 OF 2002
Mrs. Shobha Girish Bagwe
401-A, Nirakar Building,
Kalyan (West), Mumbai-400061. ...Petitioner
Versus
1. Air India Limited,
Air India Building,
Nariman Point,
Mumbai-400021.
2. Mr. A.P. Tambe
Assistant Manager,
Properties & Facilites Department
Air India Ltd, Old Airport,
Santa Cruz (E), Mumbai-400029. ...Respondents
WITH
WRIT PETITION NO. 1333 OF 2002
1. V. Pichumani
Residing at c-5, Balaji Building
Opp. Canara Bank, Kalina.
Mumbai 400 098.
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2. T.V. Jacob
residing at E/1/18-B2, Sector
10, Nerul, Navi Mumbai 400 806.
3. R.B.S. Kunde
residing at B/102, Urvashi
Sunder Nagar, Kalina,
Mumbai-400098. ...Petitioners
Versus
1. Air India Limitd,
Air India Building,
Nariman Point,
Mumbai-400021.
2. Union of India
(through the Secretary to the
Government of India, Ministry of Civil
Aviation, Rajiv Gandhi Bhava,
Sadarjung Airport, New Delhi-100011. ...Respondents
__________
Mr. Ashok D. shetty with Ms. Rita Joshi (Through V.C) with Mr. Shashikant
Patil with Mr. Rahul P. Shetty and Bushra Moughal, for the Petitioner in WP
No. 1876 of 2001 and WP No. 809 of 2002.
Adv. Lancy D'souza i/by Deepika Agarwal i/by V.M. Parkar, for the
Respondents in WP No. 1876 of 2001.
Mr. Aditya Mehta with Mr. Rakesh Singh, with Ms. Heena Shaikh i/by M.V.
Kini and Co., for the Respondents (Air India) in WP No. 809 of 2002.
Mr. Rakesh Singh with Ms. Heena Shaikh i/b M.V. Kini and Co., for the
Respondents in WP No. 1333 of 2022.
__________
Coram : SHREE CHANDRASHEKHAR &
MANJUSHA A. DESHPANDE, JJ.
RESERVED ON : 30 JULY 2025
PRONOUNCED ON : 25 AUGUST 2025
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JUDGMENT ( Per MANJUSHA A. DESHPANDE, J.) :
1. In all the three writ petitions the employer of the petitioners is Air
India Limited, but the facts as well as reliefs claimed by them are distinct from
one another. Hence, considering that the employer is common and
maintainability of writ petition itself is under issue, the writ petitions are
being heard together. When the Writ Petition No. 1876 of 2001and Writ
Petition No. 809 of 2002 were listed before this Court on 21 June 2024, this
Court has observed that “the petitioners are the employees of the respondent-
Air India Limited (hereinafter referred to as ” AIL”). During the pendency of
writ petitions the status of respondent employer, has undergone a change, as
such the respondent-AIL is not amenable to the writ jurisdiction of this
Court. The learned counsel for the petitioner states that, even in the changed
circumstances the petition can still be prosecuted and seeks time to prepare
compilation of decisions and address this Court. The matter was thereafter
directed to be listed on 15 July 2024. Hence the matters are listed before this
Court and in view of the aforementioned order passed by this Court the writ
petitions are heard.
2. In the first Writ Petition No. 1876 of 2001, the prayer of the petitioner
is to declare that his dismissal order is passed without jurisdiction and is non-
est, by granting all the consequential benefits. In Writ Petition No. 809 of
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2002, the prayer is to stay the effect, operation and implementation of the
orders/decisions dated 06.08.2001 and 21.02.2002 issued by the respondent
no. 1. In Writ Petition No. 1333 of 2002, the prayer is for the extension of
the benefit of the pension scheme, which is made applicable to the employees
retiring after 01.04.1994, claiming that it should be also made applicable to
the employees, who retired prior to 01.04.1994. In all the writ petitions the
facts as well as the prayers made by the petitioners are totally distinct from
one another. However, the common thread in all the three writ petitions is the
employer of the petitioners i.e., Air India Limited, which was the company
owned by the Government, registered under the Companies Act, 1956.
3. While deciding the maintainability of the writ petitions the facts giving
rise to the respective petitions and prayers made by petitioners will have to be
taken into consideration. All the writ petitions have been filed by the
Employees of the Air India Limited (AIL) claiming various reliefs against the
respondent Employer. The facts in writ petition No. 1876 of 2001 shorn of
unnecessary details can be summarized as under :-
“WRIT PETITION NO. 1876 of 2001
Mr. M. Yogeshwar Raj. vs. M/s. Air India Ltd.”
4. The petitioner joined service of the Air India Limited in 1976 as Traffic
Assistant, on a post reserved for scheduled tribe. This services were confirmed
in 1977, after being promoted as an Assistant Flight Purser in 1977, he was
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further promoted to the post of Flight Purser in 1994, and continued to serve
as Flight Purser till his dismissal from service with effect from 14 June 2000
vide order dated 19.06.2000. According to the petitioner, he had received a
communication dated 18.12.1997, from H.R.D. Department Special Cell for
SC/ST, Santa Cruz, requiring him to submit his caste certificate in prescribed
format after a lapse of 21 years of his service, even though he had already
submitted a caste certificate available with him at the time of joining of
service. Due to his nature of work, he could not personally visit Hyderabad
for obtaining a fresh caste certificate, therefore he asked his wife who was then
present at Hyderabad to take necessary steps. He also addressed a
communication to the Mandal Revenue Officer, for issuance of caste
certificate in prescribed format on 26.12.1997. Since his wife was looking after
her ailing sister, she further authorized one Mr. Narayana Murthy to obtain
the caste certificate. They received the caste certificate through post from Shri.
Narayana Murthy, which was submitted to the respondent-employer.
5. All of a sudden, the petitioner received a chargesheet dated 29.12.1998,
issued by the respondent-employer. The allegations against him were that, his
previous caste certificate, which was submitted by him at the time of joining
service in the year 1976, was issued by the Tutor of Pathology Department of
Osmania Medical College, which did not bear the signature of the Tahsildar
and it was not in a prescribed format, issued by the competent authority. The
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fresh caste certificate dated 04.02.1998, in the prescribed format submitted by
the petitioner, on its verification it was found to be bogus and not genuine. In
view of the fact that the certificates submitted by the petitioner were not
genuine and not issued by the competent authority, the petitioner was
charged under the ‘Clause 19(2)(xi)’ of the Certified Standing Orders of
respondent, alleging “commission of an act which amounts to a criminal
offence involving moral turpitude”. Initially the petitioner filed a complaint
against Mr. Narayan Murthy, thereafter FIR No. 6/1999 was lodged against
the petitioner on 12.01.1999. He then replied to the chargesheet on
08.02.1998. However, ignoring his reply, the respondent-company without
taking into account his explanation, has constituted an Enquiry Committee
by the office order dated 05.02.1999. During the enquiry no witnesses were
examined of either side. His categorical defence was that, according to the
circular issued by the Employment and Social Welfare Department, of
Andhra Pradesh dated 17.10.1976, Gazetted Officers serving under the State
Government were competent to issue community certificates to members of
the Scheduled Castes, Scheduled Tribe and Backward Classes. Therefore the
certificate that was issued to him, which was submitted by him while joining
the service was a valid certificate. It was his stand that, the chargesheet as well
as the initiation of the disciplinary proceedings against him are by way of
victimization with the sole purpose of harassing him.
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6. According to the petitioner he submitted a verification certificate dated
11.03.1999 issued by the Collector, Hyderabad certifying that he belongs to
Scheduled Tribe “KOLAM”. The Collector Hyderabad who was the
competent authority has also certified that, the caste certificate issued in
favour of the petitioner in the year 1976 is genuine. He submitted his final
statement on 07.04.1999, after the conclusion of enquiry proceedings.
According to him the management is responsible for the delay caused in
getting his caste certificate verified. It is the contention of the petitioner that,
the respondent should have taken timely steps for getting the verification of
his caste certificate confirmed from the competent authority, hence the delay
occurred in taking the appropriate steps cannot be attributed to him.
7. The petitioner received the report of the Enquiry Committee dated
29.04.1999, the Enquiry Committee has recorded that, the petitioner was not
guilty of the charges levelled against him, with further recommendation that
the competent authority should review the career record of the petitioner and
take appropriate measures. In spite of receiving clean chit by the Enquiry
Committee, the competent authority of the respondent-company, did not
agree with the findings of the Enquiry Committee, and proposed to impose
punishment of dismissal from service, and accordingly issued Show Cause
Notice dated 30.08.1999. Upon receiving show cause notice dated
30.08.1999, calling upon him to show cause as to why the punishment of
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dismissal should not be imposed upon him, the petitioner filed Writ Petition
No. 2293 of 1999 in this Court. This Court granted stay to the show cause
notice dated 30 August 1999.
8. Being aggrieved by the order of stay granted by this Court dated 18
September 1999, the respondent-company filed SLP No. 1477 of 2000,
before the Hon’ble Supreme Court. The Hon’ble Supreme Court has set aside
the order dated 18 September 1999, passed by this Court granting stay to the
operation of show cause notice issued against the petitioner. The respondent-
company thereafter directed the petitioner to submit his say to the show cause
notice, accordingly the petitioner gave his reply to the show cause notice on 6
June 2000. The respondent-company informed the petitioner vide
communication dated 14 June 2000, that the disciplinary authority has
imposed punishment of removing him from service with effect from 14 June
2000.
9. It is the contention of the petitioner that though the stay to the
operation of the show cause notice was vacated by the Hon’ble Supreme
Court. Significantly while passing order dated 2 May 2000, the Hon’ble
Supreme Court, had not set aside the part of the order dated 18 May 1999,
whereby this Court had issued ‘Rule’ in the petition and directed to continue
the petitioner in service. Hence, after issuance of the impugned order,
directing his removal from service, the petitioner brought to the notice of the
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respondent authorities that, High Court had in fact directed to continue him
in service. He therefore, addressed a communication to the respondent, to
continue him in service, further apprising respondent-employer that failure to
do so would amount to contempt of the order passed by this Court.
10. The petitioner thereafter filed the Chamber Summons No. 81 of 2000
for amendment of Writ Petition No. 2293 of 1999, meanwhile the petitioner
has filed present writ petition. The petitioner has carried out amendment to
the memo of writ petition bringing on record the details about his earlier writ
petition and subsequent withdrawal of writ petition along with certain other
pleadings and prayer clauses. In the present writ petition, the petitioner has
made following prayers
“A) to quash and set aside the order dated 9 June 2000 and letter dated
14 June 2000 passed by the Deputy Manager presently dismissing the
petitioner from service with effect from 14 June 2000.
B) Direction to the respondent to reinstate the petitioner in service
and allot him work and pay full back wages and consequential
benefits.”
11. By way of amendment-Rider C and D have been added in the prayer
clause, in both riders the incidental prayer clauses have been added. In sum
and substance, the relief claimed by the petitioner is that it should be declared
that the order of dismissal dated 09.06.2000 is without jurisdiction and non-
est and to declare that his caste certificate dated 30.05.1996 is valid and
withholding of his increment and other incidental benefits such as of time
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bound promotion etc. is illegal.
12. In the reply affidavit, the respondent contends that, the petitioner was
appointed as an Assistant Flight Pursuer against a vacancy reserved for
Scheduled Tribe candidates. The petitioner has produced caste certificate
issued by the Tutor of Pathology Department of Osmania Medical College,
Hyderabad. Since the Employer had a doubt regarding the caste certificate
produced by the petitioner and also considering the various complaints
regarding improper caste certificates submitted by the various employees, for
obtaining benefit of reservation, the Air India Limited by letter dated 8
August 1994, forwarded the caste certificate submitted by the petitioner for
verification, to the competent authority at Hyderabad, Andhra Pradesh for
verification of social status of the petitioner. On scrutiny of the caste
certificate, it transpired that it was neither in prescribed format nor issued by
the competent authority. Therefore, in order to expedite the caste certificate
verification process, the respondent authorities requested the petitioner to
submit caste certificate in the prescribed format. In response to which they
received the caste certificate dated 4 February 1990, issued by the Mandal
Officer, Pargi. The certificate did not bear the constitutional provision, against
which his community was recognized as Scheduled Tribe, as is done while
issuing the certificate in the prescribed format. The verification of the
certificate is necessary for employment in Government Department and
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undertakings. The revenue officer, Pargi, has given a clarification that the
certificate dated 04.02.1990 was not issued through his office; the seal on the
certificate does not tally with the seal of his office; and the residence shown in
the certificate is not existing within the Pargi Circle. Similarly, the signature of
the certificate issuing authority holding office in February 1998, does not tally
with the signature on the certificate. It is therefore the case of the respondent
that, the petitioner has with a dishonest intention to obtain wrongful gain, by
depriving an eligible Schedule Tribe candidate an opportunity of
employment, has submitted false declaration of belonging to the “KOLAM”
Scheduled Tribe.
13. Since the certificate submitted by the petitioner was found to be bogus,
chargesheet was issued and thereafter his services have been terminated. Since
his certificate was found to be bogus action is taken by the competent
authority by terminating his service which is valid and fully justified. It is
submitted that, the petitioner is not singled out, nor is the action actuated
with a malafides. The National Commission for Scheduled Caste and
Scheduled Tribe, time and again seeks information from the respondent-
company about the action taken against the candidates, who submit bogus
certificate. The employees appointed on reserved posts on the basis of caste
certificate have been called upon to submit validity certificates, which is
mandatory according to the presidential order. Hence this is not a case of
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targeting or causing harassment to the petitioner. The order of dismissal
therefore does not require any interference.
“WRIT PETITION NO. 1333 of 2002
V. Pichumani vs. M/s. Air India Ltd.”
14. In this writ petition the grievance of the petitioner is regarding the cut
off date prescribed for implementation of the pension scheme by the
respondent no. 1 only to the employees who retired after 01.04.1994. The
petitioners are the employees of Air India Limited (” AIL”) who retired from
service prior to 01.04.1994. According to the petitioner, there is no logic for
the cut off date of 01.04.1994, for implementation of the pension scheme and
thereby creating an artificial discrimination between two set of employees.
15. On 01.08.1953 the Parliament enacted the Air Corporations Act, 1953,
pursuant to which two corporations came into existence. All the employees of
the two airlines existing at the time of nationalization, were absorbed as the
employees of these two corporations. On 02.02.1997, a Memorandum of
Settlement was entered between the Air Corporation Employees Union and
management of Air India Corporation. In accordance with Section 2 of the
Industrial Disputes Act, 1947, the management of Air India Corporation
agreed in principle to introduce a pension scheme applicable to the employees
of Air India Corporation, with effect from 01.04.1978. The Government
approved Memorandum of Settlement except, the clause relating to pension
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scheme applicable to the employees of Air India Corporation. Feeling
aggrieved by the act of the Government, two employees i.e., Shri. M.S.
Kolwankar and Shri. M.S. Chavan filed a Writ Petition No. 3316 of 1988 in
this Court. Simultaneously the Air India Corporation Employees Guild,
challenged the settlement before the National Industrial Tribunal. The
National Industrial Tribunal, approved the Memorandum of Settlement
dated 02.02.1979, between the Air India Corporation Employees Union and
the management of Air India Corporation.
16. According to the petitioners, the intention of the respondent no. 1 to
create a pension scheme can be gathered from the fact that, it had earmarked a
sum of Rs. 5.12 Crores for that purpose as early as in the year 1979, which
continued up to 1997-98. After making an initial provision, it was not
supported by investing further amount. Had there been an investment of the
amount so earmarked, it would have fetched at least Rs. 20-25 crores
including interest thereon, when such scheme came to be introduced
subsequently.
17. In the year 1998-99 the fund which was separately kept aside was
transferred back to the profit and loss account. On 26.02.1994 the Air
Corporation Act, 1953 was repealed and the company viz. Air India Limited,
came into existence under the Companies Act, 1956. Some time around June
1996, pension scheme was introduced by respondent no. 1 with retrospective
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effect on 01.04.1994.
18. In the interregnum, during the pendency of the Writ Petition No. 3316
of 1988. The respondent management entered into an agreement in 1996,
with Air India Employees Guild, making contributory pension scheme
applicable to those employees who retired after 01.04.1994. According to the
petitioner, in view of the fact that Writ Petition No. 3316 of 1988, was still
pending before this Court, the Air India could not have entered into the
agreement with Air India Employees Guild. The respondents ought not to
have entered into an agreement relating to pension scheme with any union,
when one of the union had already filed a writ petition which was pending
consideration before this Court.
19. As a result of the agreement between the Air India Limited and the Air
India Employees Guild, artificial discrimination is created between the
individuals belonging to the same group. As a result of agreement entered by
the Air India Limited, the Writ Petition No. 3316 of 1988, was dismissed.
20. The petitioners who retired before 1st April 1994 are excluded from
the scheme, thus, by providing a cut off date without any logic has amounted
to creating an artificial discrimination between the employees who were
retired before 1st April 1994 and those who retired after 1st April 1994.
Considering the service rendered by them in the Air India Limited from the
days of its infancy, the pension scheme ought to have been made applicable to
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the petitioners as well. According to the petitioners, now it is well settled that,
giving pension is neither a bounty nor a matter of grace but its a matter of
right. There cannot be two methods of computing pension for retired
employees.
21. The respondent no. 1 has filed affidavit opposing the petition.
According to the respondent, there is no discrimination whatsoever against
the employees who retired prior to 1994. According to the respondent, it is a
self-contributory pension scheme established, controlled and funded entirely
by the employees themselves and the said Trust is neither a “State” nor does it
fall within the definition of ‘any other authorities’, within the meaning of
Article 12 of the Constitution of India. It is categorically stated that the Air
India Limited neither funded any pension scheme, nor it has any control over
the internal management and affairs of the ‘Air India Employees contributory
Superannuation Pension Scheme’. It is a scheme completely guided and
controlled by provision of trust deed. At the most they have contributed
maximum of Rs. 100 per year for all the employees taken together. However,
it is admitted that, in the interest of the employees themselves, the power to
review and vary the scheme was reserved by the employer, i.e., Air India
Limited, upon recognition of the union. The respondent no. 1 as an employer
has participated in assisting its employees to establish the said pension
scheme, which was done in accordance with the Memorandum of
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Understanding with the recognized Union. Mere participation and settling of
the scheme, does not change the nature of scheme, nor does it make amenable
to the writ jurisdiction of this Court. The scheme was approved by the Central
Government in April 1994, followed by clearance from the Ministry of Civil
Aviation dated 30 March 1995, with a rider that the scheme was totally self-
contributory and Air India would not contribute anything in excess of Rs.
100 per annum for its all the employees. There is no contribution from the
Air India Limited, as the scheme is self-contributory, hence no discrimination
can be attributed to the respondent no. 1. On this background the respondent
has opposed the writ petition and prayed that the writ petition deserves to be
dismissed.
“WRIT PETITION NO. 809 of 2002
Mrs. Shobha Girish Bagwe vs. M/s. Air India Ltd.”
22. The third writ petition raises challenge to the promotion order issued in
favour of respondent no. 2. In this petition the petitioner is challenging the
legality and validity of the order dated 06.08.2001 and 21.02.2002 issued by
the respondent no. 1 promoting the respondent no. 2 retrospectively with
effect from 1983 and proposing to promote him as Manager with effect from
01.01.1999.
23. The promotion orders issued in favour of respondent no. 2 – Mr. A.P.
Tambe has been challenged by the petitioner on the ground that it is against
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the policy of the company. The respondent no. 2 who belongs to Scheduled
Tribe category joined service on 06.09.1979 and was promoted as a senior
clerk subject to his seniority on 01.01.1987. He was promoted to the post of
Office Assistant from 01.01.1990, in accordance with the time bound
promotion policy adopted by the department. While doing so, he was
adjusted against point no. 8 reserved for Scheduled Caste category, though,
there was backlog of one post for Scheduled Tribe. According to the rule of
reservation interchangeability of vacancies between Scheduled Castes and
Scheduled Tribes is allowed to be carried forward, provided, it can be effected
only if it is applied in the third year of such promotion. Though, the
respondent no. 2 was at Serial No. 9 in the seniority list and not within the
zone of consideration yet, he made representation to the respondent no. 2 for
promotion. The general Manager (HRD) of respondent no. 1 has
categorically expressed his opinion that, his request cannot be considered,
since it was contrary to the rules. In spite of clear opinion given by the
General Manager, respondent no. 2 continued to represent respondent no. 1.
As a result, the committee was appointed by the respondent no. 1 under
chairmanship of one Shri. Narayan Murthy, to look into the grievance of
respondent no. 2. The committee under the chairmanship of Shri. Narayan
Murthy submitted report dated 01.02.1999. In its report the committee
observed that it would not be possible to promote the respondent no. 2 to the
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post of Office Assistant from 01.10.1983, since the post of Office Assistant
was held by one Mr. Kardile. The respondent no. 2 in spite of the adverse
report of the committee, insisted the management to put up his case before
the Managing Director of respondent no. 1 for seeking approval to his request
by treating it as special case due to the continuous representation made by the
Scheduled Cate/Scheduled Tribe Association.
24. The Managing Director of the respondent no. 1, acting contrary to
their own rules and policies, granted his approval for promotion of
respondent no. 2. As a result of the retrospective promotion granted to
respondent no. 2, to the post of Office Assistant effective from 01.10.1983,
and even subsequent promotion orders based on retrospective promotion
were issued and the respondent no. 2 was promoted to the post of Deputy
Manager with effect from 01.01.1999, illegally superseding seven officers, by
order dated 06.08.2001.
25. It is the contention of the petitioner that, according to the rules of
reservation applicable to the respondent no. 1, the carry forward point can be
exchanged between Scheduled Caste and Scheduled Tribe, only in third
promotion year. As far as promotion in the category of Assistant Manager is
concerned one Mr. V.R. Shirke, a candidate from Scheduled Caste Category
was promoted at point no. 4, reserved for Scheduled Tribe category out of
turn and adjusted against the backlog of Scheduled Caste at point no. 1.
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Thus, Scheduled Tribe point was carried forward being a single vacancy. The
year 1990 was the first year of carry forward vacancy, one Mr. E. Coutinho
was promoted as roster point no. 5. In second year of carry forward, the
petitioner was promoted against point no. 6. Since the exchange is permitted
only in the third year of promotion, adjusting respondent no. 2 against point
no. 5 was illegal.
26. Being aggrieved by the promotion of respondent no. 2 against the
vacancy which was carried forward, to be filled by persons belonging to
Scheduled Tribe category, the petitioner and other officers made
representation, since it caused them grave prejudice. However, their
representations dated 31.10.2001, 18.01.2002 and 08.02.2002 did not receive
any response. Only with a view to favour the Scheduled Caste and Scheduled
Tribe Association as well as the petitioner, the Secretary and Director for
Corporate Affairs, recommended the promotion of respondent no. 2 with
effect from 01.10.1983 as Assistant Manager, as Deputy Manager from 1 st May
1996 and Manager with effect from 01.01.1999.
27. According to the petitioner, the respondent no.1, was determined to
promote respondent no. 2, contrary to the rules and policy of promotion. As a
result an office note dated 21.02.2002 is prepared to seek approval of the
Managing Director, to constitute a panel for promotion of respondent no. 2,
to the post of Manager (Administration) with effect from 1 st January 1999.
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The grievance of the petitioner is that it would result in superseding the
petitioner and other similarly placed officers. It would cause serious prejudice
and hardship as well as monetary loss to the petitioner as well as the other
officers. On aforementioned background, the petitioner has assailed the
orders passed by respondent no. 1.
28. The averments made in the writ petition have been controverted by
respondent no. 1, by filing a reply affidavit. It is the defence of the respondent
that, the writ petition is founded on disputed questions of fact and that the
allegations made therein are baseless, since no promotions have yet been
effected. Consequently, the writ petition being devoid of merits does not
deserve consideration. It is submitted that the proposed promotion contained
in the communication dated 6 August 2001, has not been given effect to, till
the date of filing of affidavit. The comparative promotional chart of petitioner
and respondent is produced on page no. 3 of the reply affidavit. According to
the respondent no. 1, though the respondent no. 2 joined in 1979, as
compared to petitioner who joined in the year 1980, his last promotion order
to the post of Assistant Manager was issued in the year 1999, whereas
petitioner was promoted to the post of Assistant Manager on 01.05.1991
itself. It is demonstrated that, the case of the respondent no. 2, could not be
considered for promotion on various occasions by adhering to the policy of
reservation. It is the defence of the respondent no. 1 that, respondent no. 2 in
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the corporate seniority list was at serial no. 4 in his category. However, he was
shown at serial no. 7, therefore he could not be considered for promotion on
the assumption that he did not fall within the zone of consideration. Hence,
in order to rectify the error, respondent no. 2 was promoted to the post of
Office Assistant with effect from 01.10.1983. Accordingly, subsequent
promotion orders were also issued, treating him as promoted to the post of
Office Assistant on 01.10.1983. His further career progression was thus
considered admissible from the date of his promotion. The Liason officer of
the Association of Scheduled Caste and Scheduled Tribe, strongly
recommended retrospective promotion of respondent no. 2, without any
monetary benefit for the previous period i.e., only grant of notional benefits,
which was accepted and matter was treated as closed.
29. The case of the respondent no. 2 was favourably considered since no
monetary benefits were to be extended to him except for the promotion from
01.01.1991 onwards, as a one time settlement with the Scheduled
caste/Scheduled Tribe Employees Association. The reliance is placed on the
decision of the Hon’ble Supreme Court in the Arati Ray Choudhury v. Union
of India & Ors1 in context with reservation of scheduled caste and scheduled
tribe. It is therefore prayed that there is no case made out for interference of
this Court under Article 226 of the Constitution of India.
1. 1974 AIR SC 532
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30. The respondent no. 2 – A.P. Tambe has also filed his affidavit on 17 th
June 2002. According to the respondent no. 2, the respondent no. 1 –
Company provided for two kinds of promotions, the first channel of
promotion is ‘Standard Force Vacancies’, based on selection of eligible
candidates from feeder cadre, on the basis of assessment on the actual
vacancies. While the second kind of promotions is known as ‘Supernumerary
or Time Bound Promotion’ which is not based on actual vacancy, existing in
higher cadre, but in the nature of up-gradation being effected upon
completion of minimum number of years in the feeder cadre. The petitioner
joined in the organization as stenographer on 23.06.1980, while the
respondent no. 2 joined on 06.07.1979 as typist clerk. Both the posts are
feeder cadre post for the post of Officer Assistant. In 1982 three posts of
Office Assistants were available, though three persons were eligible to be
promoted on completion of 9 years service, those promotions were delayed.
One post of Office Assistant became available on account of promotion of
one candidate to higher post in 1983. The vacancy known as standard force
vacancy, was available to be filled from feeder cadre. The respondent no. 2
was at serial no. 8 in the seniority. According to the respondent no. 2, if the
three persons belonging to the said cadre had been granted time-bound
promotions in the year 1982, itself he would have been in the zone of
consideration for the post of Office Assistant, which became available in the
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year 1983, and was reserved for Scheduled Tribe Category.
31. Though the respondent no. 2 belongs to Scheduled Caste category,
interchangeability was permissible, since no other candidates belonging to the
Scheduled Tribe category was available within the zone of consideration, the
respondent no. 2 could have been selected in the year 1983 itself. Due to the
failure of the respondent no. 1 to promote three persons who were due for
promotion in the year 1983 itself, the respondent no. 2 was continued to be
shown at serial no. 8, and was ousted from the zone of consideration. No
prejudice is caused to the petitioner, as a result of his promotion. As has been
demonstrated by the respondent no. 1 in his affidavit by relying on the
comparative chart of promotions of both the petitioner as well as respondent
no.2. It is therefore prayed that the writ petition deserves to be dismissed. The
petitioner has also filed rejoinder to the affidavit filed by the respondents
dated 26 June 2002.
32. All the three writ petitions as stated hereinabove are filed with different
prayers made by individuals holding different posts on the establishment of
the Respondent-Air India Limited “AIL”. Undoubtedly the prayers made by
the petitioners in all the writ petitions are distinct. However, the common
thread in all the three writ petitions is the employer i.e., the AIL. Although,
when the writ petitions were filed, the writ petitions were very much
maintainable before this Court. Since the respondent was a company duly
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registered under the provisions of the Companies Act, 1956 and fully owned
by the Government of India, hence it was “State” within the meaning of
Article 12 of the Constitution of India, as such amenable to the writ
jurisdiction of this Court. The writ petitions have been filed under Article
226, 14 and 16 of the Constitution of India, alleging discriminatory treatment
at the hands of the employer i.e., Air India Limited.
33. During the pendency of these writ petitions, the status of the employer-
AIL, has changed due to its privatization. On 27 January 2022 the AIL was
privatized and is disinvested, pursuant to share purchase agreement with
Talace India Private Limited. Resultantly it ceased to be a Government
company, due to transfer of 100% equity shares of Government of India in
Air India Limited, to Talace India Private Limited. When the matter came up
for hearing the question of maintainability of writ petition under Article 226
of the Constitution of India against the respondent no. 1 has been raised.
34. Incidentally this Court had an occasion to deal with the issue of
maintainability of writ petition under Article 226 of the Constitution of
India, due to privatization of the AIL. This Hon’ble Court in its judgment in
case of R.S. Kotyswara Rao Madireddy and another vs. Union of India and
others2 has taken a view that, the jurisdiction to issue a writ to the respondent
– company no longer exists due to changed circumstances in the intervening
2. 2023(1) Bom. C.R. 317
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period as a result of the privatization of the Air India Limited. The Division
Bench of this Court (Coram : Dipankar Datta (C.J) & M.S. Karnik,JJ,) has
elaborately dealt with issue of the maintainability of writ petitions against the
persons, bodies and authorities, including individuals who do not fall within
the definition of “State” under Article 12 of the Constitution of India. After
deliberating over the issue, this Court has taken a view that, with its
privatization the AIL has ceased to be an ‘Authority’ under Article 12 of the
Constitution of India, hence writ cannot be issued against an Authority, that
is not discharging the public functions.
35. This court has further observed that, during the pendency of the writ
petitions, due to change in status of AIL writ petition would not be
maintainable. However, the petitioner would be at liberty to explore the
alternate remedy in accordance with law.
36. Shri. Ashok Shetty, learned counsel for the petitioner advanced his
arguments on behalf of the petitioners. According to him though the decision
was rendered by this Court in R.S. Kotyswara Rao Madireddy (supra) vide
judgment dated 24th August 2022, which was further confirmed by the
Hon’ble Apex Court by upholding the decision of this Court, in the case titled
as R.S. Madireddy and another vs. Union of India and others 3 in the
interregnum the five judges Constitution Bench of the Hon’ble Supreme
3. 2024 SCC OnLine SC 965
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Court in its judgment in the case of Kaushal Kishor vs. State of Uttar Pradesh
and Others4 has formulated six questions of law. Amongst which one of the
questions was whether writ can be issued against the private individuals.
While answering the issue, the Hon’ble Supreme Court has held that a writ
petition would be maintainable even against private entity, if there is a
violation of fundamental rights. Our attention is drawn to question no. 2 with
its answer in the judgment of Kaushal Kishor (supra), which reads thus :-
Question No. 2
“51. The second question referred to us is as to whether a fundamental
right under Articles 19 or 21 can be claimed against anyone other than
the State or its instrumentalities. Actually, the question is not about
“claim” but about “enforceability”
Answer
83. Thus, the answer to Question 2 is partly found in the nine-Judge
Bench decision in K.S. Puttaswamy (Privacy-9 J.J20 itself. We have
seen from the line of judicial pronouncements listed above that after
A.K. Gopalan v. State of Madras101 lost its hold, this Court has
expanded the width of Article 2t in several areas such as health,
environment, transportation, education and prisoner’s life, etc. As
Vivian Bose, J., put it in a poetic language in S. Krishnan v. State of
Madras102: (S. Krishnan case102, SCC p. 524, para 63)”
“63. Brush aside for a moment the pettifogging of the law and forget
for the nonce all the learned disputations about this and that, and
“and” or “or”;, or “may” and “must”. Look past the mere verbiage of
the words and penetrate deep into the heart and spirit of the
Constitution.” (emphasis supplied)The original thinking of this Court that these rights can be enforced
only against the State, changed over a period of time. The
transformation was from “State” to “Authorities” to “instrumentalities
of State” to “agency of the Government” to “impregnation with
Governmental character” to “enjoyment of monopoly status conferred
4. (2023) 4 SCC
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27 943-WP-1876-2001.docby State” to “deep and pervasive control” l03 to the “nature of the
duties/functions performed”39. Therefore, we would answer Question
2 as follows:
“A fundamental right under Articles 19/21 can be enforced even
against persons other than the State or its instrumentalities.”
37. The question no. 3 and its answer as relied by the petitioner in the
judgment is also reproduced hereinbelow, which reads thus :-
“Question-3
84. “Whether the State is under a duty to affirmatively protect the
rights of a citizen under Article 21 of the Constitution of India even
against a threat to the liberty of a citizen by the acts or omissions of
another citizen or private agency?” is the third question referred to us.
Answer
113. Therefore, our answer to Question 3 would be that the State is
under a duty to affirmatively protect the rights of a person under
Article 21, whenever there is a threat to personal liberty, even by a non-
State actor.”
38. The above questions are framed and answered in the judgment
authored by Justice. V. Ramsubramian on behalf of Justice Abdul Nazeer,
Justice. B.R. Gavai, A.S. Bopanna, JJ, while Justice B.V. Nagarathna has given
a partly concurring and partly dissenting judgment. It is held by Justice. B.V.
Nagarathna that, she agrees with reasoning and the conclusion arrived at by
His Lordship Justice V. Ramasubramanian, but preferred to provide a
different perspective on certain issues by way of separate opinion. Justice. B.V.
Nagarathna has relied on the table which is prepared in three columns First
column is the questions framed by the majority, second column is the view
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taken by the majority, third column is the view taken by the Justice B.V.
Nagarathna. Particularly, while answering question no. 2, the majority view
was that the fundamental rights under Article 19 and 21of the Constitution of
India can be enforced even against persons other than the “State” or its
instrumentalities. While expressing her views on the question no. 2, it is held
by Justice. B.V. Nagarathna that, fundamental rights under Article 19 and 21
of the Constitution of India cannot be enforced against private persons i.e.,
those who are not the “State” or its instrumentalities under Article 12 of the
Constitution of India. However, a remedy in the form of writ of Habeas
Corpus against private individuals would be maintainable, before a
Constitutional Court i.e., by way of writ petition under Article 226 of the
Constitution of India, before the High Court or under Article 32 read with
Article 142 of the Constitution of India before the Hon’ble Supreme Court,
only when such relief is claimed on the basis of a violation of Article 21 of the
Constitution of India. With regard to non-State entities those do not fall
within the scope of Article 12 of the Constitution of India, it is held that a
writ petition for enforcement of fundamental rights would not be
maintainable against them. It is further observed that, such cases may involve
disputed questions of fact, which may impact the maintainability of writ
petitions.
39. In the same table, question no. 3 formulated is whether the “State” is
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under a duty to affirmatively protect the rights of a citizen under Article 21 of
the Constitution of India, even against threat to the liberty posed by actions
or initiatives of another citizen or private agency. The majority view on this
question is that the “State” does indeed has a duty to affirmatively protect a
person’s rights under Article 21, whenever there is a threat to personal liberty,
even if such a threat arises from a private actor. According to the views
expressed by Justice Nagarathna, failure by the State to carry out its
constitutional and statutory duties to protect the rights of a citizen could
result in the deprivation of that citizen’s right to life and personal liberty.
When a citizen is so deprived of his right to life or personal liberty, the “State”
would have breached the negative duty cast upon it under Article 21 of the
Constitution of India. Hence the State has an affirmative duty to carry out
obligations cast upon it under the constitutional and statutory law. Such
obligations require the State to intervene, when acts committed by private
parties may threaten the life or liberty of another individual.
40. Shri. Ashok Shetty, learned counsel for the petitioner submits that after
the judgment in R.S. Kotyswara Rao Madireddy (supra) was delivered by the
Bombay High Court on 24.08.2022. The judgment of Kaushal Kishor
(supra) has been delivered on 3 January 2023. The judgment of Kaushal
Kishor (supra) which is five judge Constitution Bench decision, was cited
before the Hon’ble Supreme Court in the SLP filed by R.S. Madireddy
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(supra). The Hon’ble Supreme Court though referred to the said judgment
has not discussed it in extenso. Upon perusal of the said judgment in R.S.
Madireddy (supra) before the Hon’ble Supreme Court even the counsel for
Air India appears to have made a reference to the said judgment with a view
to emphasize that Air India is private entity which does not discharge public
functions and running an air line is not a public function, hence writ petition
would not be maintainable. It is therefore submitted that though the
petitioner as well as respondent have cited the judgment of Kaushal Kishor
(supra) before the Hon’ble Supreme Court, the Hon’ble Supreme Court did
not deal with the said judgment. Though the judgment of Kaushal Kishor
(supra) is referred no finding is recorded based on it, hence the judgment of
R.S. Madireddy (supra) cannot be construed as a ratio decidendi or lays down
any law on the point of maintainability. The petitioner therefore is urging this
Court, to follow the decision in Kaushal Kishore (supra) and hold that, the
writ petition is maintainable.
41. In order to lay support to this argument that, no ratio is laid down by
the Hon’ble Supreme Court in the case of R.S. Madireddy (supra), hence it
will have to be classed as obiter dicta and not an authoritative
pronouncement, the learned counsel for the petitioner relies on the judgment
of Municipal Corporation of Delhi vs. Guram Kaur 5. Particularly Paragraph
5. (1989) 1 SCC 101
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11 of the said judgment relied upon by the petitioner is reproduced
hereinbelow:-
“11. Pronouncements of law, which are not part of the ratio decidendi
are classed as obiter dicta and are not authoritative. With all respect to
the learned Judge who passed the order in Jamna Das case and to the
learned Judge who agreed with him, we cannot concede that this Court
is bound to follow it. It was delivered without argument, without
reference to the relevant provisions of the Act conferring express power
on the Municipal Corporation to direct removal of encroachments from
any public place like pavements or public streets, and without any
citation of authority. Accordingly, we do not propose to uphold the
decision of the High Court because, it seems to us that it is wrong in
principle and cannot be justified by the terms of the relevant provisions.
A decision should be treated as given per incuriam when it is given in
ignorance of the terms of a statute or of a rule having the force of a
statute. So far as the order shows, no argument was addressed to the
court on the question whether or not any direction could properly be
made compelling the Municipal Corporation to construct a stall at the
pitching site of a pavement squatter. Professor P. J. Fitzgerald, editor of
the Salmond on Jurisprudence, 12th edn. explains the concept of sub
silentio at p. 153 in these words :
A decision passes sub silentio, in the technical sense that has come to be
attached to that phrase, when the particular point of law involved in the
decision is not perceived by the court or present to its mind. The court
may consciously decide in favour of one party because of point A,
which it considers and pronounces upon. It may be shown, however,
that logically the court should not have decided in favour of the
particular party unless it also decided point B in his favour; but point
was not argued or considered by the court. In such circumstances,
although point B was logically involved in the facts and although the
case had a specific outcome, the decision is not an authority on point B.
Point B is said to pass sub silentio”
42. The learned counsel for the petitioner has further relied upon
observations made by the Hon’ble Supreme Court in the case of State of U.P.
and another vs. Synthetics and Chemicals Ltd and another 6 to lay emphasis
on the doctrine of Precedent paragraph 40 and 41 of the judgment, relied by
6. (1991) 4 SCC 139
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the petitioner is reproduced hereinbelow :-
40. ‘Incuria’ literally means ‘carelessness’. In practice per incuriam
appears to mean per ignoratium. English courts have developed this
principle in relaxation of the rule of stare decisis. The ‘quotable in law’
is avoided and ignored if it is rendered, ‘in ignoratium of a statute or
other binding authority’, (Young v. Bristol Aeroplane Co. Ltd.”). Same
has been accepted, approved and adopted by this Court while
interpreting Article 141 of the Constitution which embodies the
doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan
Dubey’2 this Court while pointing out the procedure to be followed
when conflicting decisions are placed before a bench extracted a passage
from Halsbury’s Laws of England incorporating one of the exceptions
when the decision of an appellate court is not binding.
41. Does this principle extend and apply to a conclusion of law, which
was neither raised nor preceded by any consideration. In other words
can such conclusions be considered as declaration of law? Here again
the English courts and jurists have carved out an exception to the rule
of precedents. It has been explained as rule of sub-silentio. “A decision
passes sub-silentio, in the technical sense that has come to be attached
to that phrase, when the particular point of law involved in the decision
is not perceived by the court or present to its mind.” (Salmond on
Jurisprudence 12th Edn., p. 153). In Lancaster Motor Company
(London) Ltd. v. Bremith Ltd.“‘ the Court did not feel bound by earlier
decision as it was rendered without any argument, without reference to
the crucial words of the rule and without any citation of the authority. It
was approved by this Court in Municipal Corporation of Delhi v.
Gurnam Kaur. The bench held that, ‘precedents sub-silentio and
without argument are of no moment’. The courts thus have taken
recourse to this principle for relieving from injustice perpetrated by
unjust precedents. A decision which is not express and is not founded
on reasons nor it proceeds on consideration of issue cannot be deemed
to be a law declared to have a binding effect as is contemplated by
Article 141. Uniformity and consistency are core of judicial discipline.
But that which escapes in the judgment without any occasion is not
ratio decidendi. In B. Shama Rao v. Union Territory of Pondicherry‘s it
was observed, ‘it is trite to say that a decision is binding not because of
its conclusions but in regard to its ratio and the principles, laid down
therein’. Any declaration or conclusion arrived without application of
mind or preceded without any reason cannot be deemed to be
declaration of law or authority of a general nature binding as a
precedent. Restraint in dissenting or overruling is for sake of stability
and uniformity but rigidity beyond reasonable limits is inimical to the
growth of law.
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43. Mr. Ashok Shetty, learned counsel further submits that though the
judgment in the case of Kaushal Kishor (supra) has been cited and referred by
the Hon’ble Supreme Court yet no findings are recorded by the Hon’ble
Supreme Court with reference to the said judgment. Since the judgment of
Kaushal Kishor (supra) is a Constitution Bench judgment, which had laid
down a ratio, is binding on all the courts. Thus, the present writ petition
would be maintainable in view of the judicial pronouncement of the
Constitution Bench decision, holding that writ petition is maintainable even
against a ‘Person’.
44. It is submitted that considering the law laid down by the Constitution
Bench in Kaushal Kishor (supra) a writ petition even against a ‘person’ can be
entertained, hence it is not necessary that the change in management and
control of Air India Limited, would automatically result in dismissal of the
writ petition on the ground of maintainability. The learned counsel for the
petitioner referred to paragraph nos. 9, 17 and 22 of the judgment of R.S.
Madireddy (supra), which are reproduced hereinbelow which reads thus :-
“9. Learned senior counsel further contended that the scope of issuing a
writ, order, or direction under Article 226 of the Constitution of India
is much broader than the high prerogative writs issued by the British
Courts and this position has been recognised by this Court in the case
of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti
Mahotsav Smarak Trust and ors. vs. V. R. Rudani and ors., (1989) 2
SCC 691, and following the said decision, Courts in India have
consistently issued writs even to private persons performing public
duties and this position has further been reiterated by the recent
judgment of this Court in the case of Kaushal Kishor vs. State of U. P.Mayur
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34 943-WP-1876-2001.docand ors., 2023 MhLJ Online (S.C.) 91 = (2023) 4 SCC 1. The relevant
portions of Andi Mukta (supra) as relied upon by the learned senior
counsel are extracted hereinbelow :–
“16. The law relating to mandamus has made the most
spectacular advance. It may be recalled that the remedy by
prerogative writs in England started with very limited scope and
suffered from many procedural disadvantages. To overcome the
difficulties, Lord Gardiner (the Lord Chancellor) in pursuance
of section 3(1)(e) of the Law Commission Act, 1965, requested
the Law Commission “to review the existing remedies for the
judicial control of administrative acts and omissions with a view
to evolving a simpler and more effective procedure”. The Law
Commission made their report in March, 1976 (Law
Commission Report No. 73). It was implemented by Rules of
Court (Order 53) in 1977 and given statutory force in 1981 by
section 31 of the Supreme Court Act, 1981. It combined all the
former remedies into one proceeding called Judicial Review.
Lord Denning explains the scope of this “judicial review” :
“At one stroke the Courts could grant whatever relief was
appropriate. Not only certiorari and mandamus, but also
declaration and injunction. Even damages. The procedure was
much more simple and expeditious. Just a summons instead of a
writ. No formal pleadings. The evidence was given by affidavit.
As a rule no cross-examination, no discovery, and so forth. But
there were important safeguards. In particular, in order to
qualify, the applicant had to get the leave of a judge. The statute
is phrased in flexible terms. It gives scope for development. It
uses the words “having regard to”. Those words are very
indefinite. The result is that the Courts are not bound hand and
foot by the previous law. They are to “have regard to” it. So the
previous law as to who are — and who are not — public
authorities, is not absolutely binding. Nor is the previous law as
to the matters in respect of which relief may be granted. This
means that the judges can develop the public law as they think
best. That they have done and are doing.” (See the Closing
Chapter by Rt. Hon. Lord Denning, p. 122]
17. There, however, the prerogative writ of mandamus is
confined only to public authorities to compel performance of
public duty. The “public authority” for them means everybody
which is created by statute — and whose powers and duties are
defined by statute. So government departments, local
authorities, police authorities, and statutory undertakings and
corporations, are all “public authorities”. But there is no such
limitation for our High Courts to issue the writ “in the nature of
mandamus”. Article 226 confers wide 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,
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35 943-WP-1876-2001.doc“for the enforcement of any of the fundamental rights and for
any other purpose.”
17. Learned senior counsel further submitted that this Court in the case of
Kaushal Kishor (supra) has held that a writ cannot be issued against non-
state entities that are not performing any ‘Public Function’. He further
pointed out that it is the conceded case of the appellants that post
privatisation, respondent no. 3(AIL) does not perform any ‘Public
Function’ and in any case running a private airline with purely a
commercial motive can never be equated to performing a ‘Public Duty'”
45. The Hon’ble Supreme Court in the judgment of R.S. Madireddy
(supra) has framed question for adjudication of issue of maintainability of
writ against private entity, which is reproduced hereinbelow :-
“22. The questions of law presented for adjudication of this Court are
:
(I) Whether respondent no. 3(AIL) after having been taken over by a
private corporate entity could have been subjected to writ jurisdiction
of the High Court?
(ії) Whether the appellants herein could have been non-suited on
account of the fact that during pendency of their writ petitions, the
nature of the employer changed from a Government entity to a
private entity?
(iii) Whether the delay in disposal of the writ petition could be
treated a valid ground to sustain the claim of the appellants even
against the private entity?”
46. While answering the question no. 1, the Hon’ble Supreme Court has
made observations in paragraph nos. 32 and 33, which read thus:-
“32. There is no dispute that the Government of India having
transferred its 100% share to the company Talace India Pvt. Ltd.,
ceased to have any administrative control or deep pervasive control
over the private entity and hence, the company after its disinvestment
could not have been treated to be a State anymore after having taken
over by the private company. Thus, unquestionably, the respondent
No. 3(AIL) after its disinvestment ceased to be a State or its
instrumentality within the meaning of Article 12 of the Constitution of
India.
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33. Once the respondent No. 3(AIL) ceased to be covered by the
definition of State within the meaning of Article 12 of the Constitution
of India, it could not have been subjected to writ jurisdiction under
Article 226 of the Constitution of India.”
47. Reliance is also placed on paragraph 57 and 61 in the case of R.S.
Kotyswara Rao Madireddy and another vs. Union of India and others, which
reads thus :-
“57. That a writ could be issued to an ‘authority’ within
the meaning of “the State” as in Article 12 of the
Constitution as well as an ‘authority’ within the meaning
of Article 226 has never been in dispute. By judicial
pronouncements, law has developed over a period of
time that a writ or order or direction under Article 226
can also lie against a ‘person’, even though it is not a
statutory body, it if performs a public function or
discharges a public duty or owes a statutory duty to the
party aggrieved. These are unquestionable principles and
the parties are ad idem in respect thereof. However, they
have joined issue because of the intervening event of
privatization of AIL.
61. We have noted on perusal of the decisions in
Rajamundry Electric Supply Corporation Ltd. (supra)
and P. Venkateswarlu (supra), relied on by Mr. Singhvi,
that the proceedings dealt with by the Court did not
arise out of any writ petition. The reasons for the
inapplicability of the ratio of the former decision,
proferred by Mr. Khambatta, are acceptable to us and
hence we refrain from restating the reasons. We,
however, wish to add that a sentence in a decision of the
Supreme Court does not constitute the ratio of its
decision, and that a statement of law enunciated by the
Supreme Court must be read in the light of the principle
which it seeks to effectuate and it should not be
construed as if it were a section of an enactment. In the
latter decision, the Supreme Court dealt with the
adjectival activism relating to post-institution
circumstances and laid down the proposition that “it is
basic to our processual jurisprudence that the right to
relief must be judged to exist as on the date a suitor
institutes the legal proceeding”. This is an emphatic
statement that the right of a party is determined by the
facts as they exist on the date the action is instituted.
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37 943-WP-1876-2001.docGranting the presence of such facts, then he is entitled to
its enforcement. Later developments cannot defeat his
right because had the Court found his facts to be true
the day he sued, he would have got his decree. The
Court’s procedural delays cannot deprive him of legal
justice or right crystallized in the initial cause of action.”
48. It is submitted that the delay in deciding the writ petition cannot be
attributed to the petitioner. The changed circumstances cannot deprive the
petitioners of their rightful claim which existed at the time of institution the
writ petition. The rights of the petitioners were crystallized, at the time of
filing the writ petition. The changed circumstances cannot deprive the
petitioners of their rightful claim. It is therefore submitted that grave
prejudice would be caused to the petitioner if after a period of almost 20
years, the writ petitions are dismissed on account of maintainability. Hence
the objection to the maintainability raised by the respondent deserves to be
ignored by entertaining the writ petition, on its own merits.
49. Per contra the learned counsel Mr. Aditya Mehta appearing for the
respondent-Air India Limited has raised a strong objection to the
maintainability of the writ petition. It is contended that the Air India Limited
was privatized and dis-invested pursuant to a share purchase agreement
entered with Talace India Private Limited, whereby 100% equity shares of the
Government of India in Air India Limited were purchased by the private
limited company. Relying to the observations made by this Court in the
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judgment of R.S. Madireddy (supra), it is submitted that though the writ
petitions were very much maintainable, when they were filed, yet due to the
developments that have occurred in the interregnum, the writ petitions ceased
to be maintainable by reason of privatization of Air India Limited. The view
taken by this Court is confirmed by the Hon’ble Supreme Court thus there is
no question of entertaining the present writ petition.
50. The respective counsels for the respondent further submit that though
the writ petitions have been dismissed as not maintainable, however, this
Hon’ble Court while dismissing the writ petition has held that, the petitioners
should seek an alternate remedy by instituting fresh proceedings. While
entertaining such proceedings the time exhausted during pendency of the writ
petition would be excluded for the purpose of computation of period of
limitation. Hence the doors of the petitioner are not closed for redressal of
their grievance. It is submitted that the stand of the petitioner that decision
R.S. Madireddy (supra) is per incuriam is legally untenable, in view of the fact
that constitution Bench judgment of Kaushal Kishor (supra) has been
considered by the Hon’ble Supreme Court in paragraph nos. 9 and 17 of its
judgment. While trying to distinguish between the case of Kaushal Kishor
(supra) and case of R.S. Madireddy (supra). The learned counsel for the
respondent submits that the subject matter in R.S. Madireddy (supra)
involved issues such as anomalies in pay fixation, denial of promotion, and
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pay revision etc., i.e., issue relating to service benefits. In contrast, the Kaushal
Kishor (supra) deals with issues concerning enforceability of fundamental
rights under Articles 19 and 21 of the Constitution of India. Hence while
answering the questions that were framed, the Hon’ble Supreme Court has
held that, the fundamental rights under Article 19 and 21 of the Constitution
of India can be enforced even against the ‘Persons’ other than the State or its
instrumentalities. The present writ petition does not concern with the
enforcement or violation of the fundamental rights under Article 19 and 21 of
the Constitution of India. Thus ratio in case of Kaushal Kishor (supra) is not
applicable to the facts of the present case. The Hon’ble Supreme Court has
considered all previous judgments including that of Kaushal Kishor (supra).
Hence the case of R.S. Madireddy (supra) cannot be considered as per
incuriam. The issue before this Court is squarely covered by the decision in
R.S. Madireddy and another (supra). Hence the writ petition filed by the
petitioners deserves to be dismissed solely on the ground of maintainability.
51. The insistence of the petitioners is on the application of the findings
recorded by the Hon’ble Supreme Court, in case of Kaushal Kishor (supra)
declaring that, a writ petition would be maintainable for enforcement of
fundamental rights under Article 19 and 21 of the constitution of India, even
against a ‘person’. The whole thrust of arguments is that, a Constitution
Bench judgment, which has laid down a ratio, would be binding on all the
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subordinate courts, including High Court.
52. There is no doubt whatsoever about the applicability of the law of
Precedent and doctrine of ‘Stare decisis’, which binds all the courts in India. It
is the fundamental legal principle, followed by Indian legal system, its
applicability ensures consistency, stability and avoids divergence of opinion
on similar issue, dealt with by the different courts. Article 141 of the
Constitution of India also, makes a decision or a ratio laid down by the
Hon’ble Supreme Court, binding on all the courts within the territory of
India. The hierarchy of courts in India with the Supreme Court at its apex,
requires the law laid down by it, binding on all the courts subordinate to it.
53. Though Law of ‘Precedent’ is settled, however some times its
applicability to certain cases is debated and disputed. There are catena of
decisions of the Hon’ble Supreme Court, explaining the law of ‘Precedent’
and ‘Stare Decisis’ with its applicability. It would be apposite to refer to the
observations of the Hon’ble Supreme Court, enunciating the importance of
doctrine of binding Precedent in the case of Union of India and Another vs.
V. Raghubir Singh7. The issue about the applicability of Section 30 of the
Land Acquisition Act, after its amendment was referred to the Bench of 5
Judges, when the two judges Bench of the Supreme Court, found doubt in
applicability of the view taken by a Bench of three Judges. When objection
7. AIR 1985 Delhi 228
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was raised to the reference made to the larger Bench, the Supreme Court has
thought it necessary to lay down law on the point. The relevant extracts of the
judgment are reproduced hereunder which read thus :-
“8. Taking note of the hierarchical character of the judicial system in
India it is of paramount importance that the law declared by this Court
should be certain, clear and consistent. It is commonly known that most
decisions of the Courts are of significance not merely because they
constitute an adjudication on the rights of the parties and resolve the
dispute between them, but also because in doing so they embody a
declaration of law operating as a binding principle in future cases. In this
latter aspect lies their particular value in developing the jurisprudence of
the law.”
9. The doctrine of binding precedent has the merit of promoting a
certainty and consistency in judicial decisions, and enables an organic
development of the law, besides providing
assurance to the individual as to’ the consequence of transactions
forming part of his daily affairs. And, therefore, the need for a clear and
consistent enunciation of legal principle in the decisions of a
Court……………….
………………………
………………………
………27. There was some debate on the question whether a Division
Bench of Judges is obliged to follow the law laid down by a Division
Bench of a larger number of Judges. Doubt has arisen on the point
because of certain observations made by O. Chinnappa Reddy, J. in
Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, AIR 1985
SC 23 1. Earlier, a Division Bench of two Judges, of whom he was one,
had expressed the view in T. V. Vatheeswaran v. State of Tamil Nadu,
AIR1983 SC 361(2) that delay exceeding two years in the execution of a
sentence of death should be considered sufficient to entitle a person
under sentence of death to invoke Article 21 of the Constitution and
demand the quashing of the sentence of death. This would be so, he
observed, even if the delay in the execution was occasioned by the time
necessary for filing an appeal or for considering the reprieve of the
accused or some other cause for which the accused himself may be
responsible. This view was found unacceptable by a Bench of three
Judges in Sher Singh v. State of Punjab, AIR
1983 SC 46-5, where the learned Judges observed that no hard and fast
rule could be laid down in the matter. In direct disagreement with the
view in T. V. Vatheeswaran (‘supra), the learned Judges said that account
had to be taken of the time occupied by proceedings in the High Court
and in the Supreme Court and before the executive authorities, and it
was relevant to consider whether the delay was attributable to the
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conduct of the accused. As a member of another Bench of two Judges, in
Javed Ahmed Abdul Hamid Pawala (supra) O. Chinnappa Reddy, J.
questioned’ the validity of the observations made in Sher Singh (supra)
and went on to note, without expressing any concluded opinion on the
point, that it was a serious question “whether a Division Bench of three
Judges could purport to overrule judgment of a Division Bench of two
Judges merely because three is larger than two. The court sits in
Divisions of two and three Judges for the sake of convenience and it
may be inappropriate for a Division Bench of three Judges to purport to
overrule the decision of a Division Bench of two Judges. Vide Young v.
Bristol Aeroplane Co. Ltd., (1944) 2 All ER 293. It may be otherwise
where a Full Bench or a Constitution Bench does so.” It is pertinent to
record here that because of the doubt cast on the validity of the opinion
of Sher Singh (supra), the question of the effect of delay on the
execution of a death sentence was referred to a Division Bench of five
Judges, and in Triveniben v. State of Gujarat, AIR 1989 SC 142 the
Constitution Bench overruled T. V
28. What then should be the position in regard to the effect of the law
pronounced by a Division Bench in relation to a case raising the same
point subsequently before a Division Bench of a smaller number of
Judges? There is no constitutional or statutory prescription in the
matter, and the point is governed entirely by the practice in India of the
Courts sanctified by repeated affirmation over a century of time. It
cannot be doubted that in order to promote consistency and certainty in
the law laid down by a superior Court, the ideal condition would be that
the entire court should sit in all cases to decide questions of law, and for
that reason the Supreme Court of the United States does so.
But having regard to the volume of work demanding the attention of the
Court, it has been found necessary in India as a general rule of practice
and convenience that the Court should sit in Divisions, each Division
being constituted of Judges whose number may be determined by the
exigencies of judicial need, by the nature of the case including any
statutory mandate relative thereto, and by such other considerations
which the Chief Justice, in whom such authority devolves by
convention,may find most appropriate. It is in order to’ guard against
the possibility of inconsistent decisions on points of law by different
Division Benches that the rule has been evolved, in order to promote
consistency and certainty in the development of the law and its
contemporary status, that the statement of the law by a Division Bench
is considered binding on a Division Bench of the same or lesser number
of Judges. This principle has been followed in India by several
generations of Judges. We may refer to a few of the recent cases on the
point.
In John Martin v. State of West Bengal, (1975)
3 SCR 211 (AIR 1975 SC 775) a Division Bench of three Judges found
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it right to follow the law declared in Haradhan Saha v. State of West
Bengal, (19751) 1 S CR778: (AIR 1974 SC 2154) decided by a Division
Bench of five Judges, in preference to Bhut Nath Mate v. ‘State of West
Bengal, AIR 1974 SC 806 decided by a Division Bench of two Judges.
Again in Smt. Indira Nehru Gandhi v. Raj Narain, (1976) 2 SCR 347 :
(AIR 1975 SC 2299) Beg, J. held that the Constitution Bench of five
Judges was bound by the Constitution Bench of thirteen Judges in His
Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala‘ 1973
Suppl SCR I : (‘ AIR 1973 SC 1461). In Ganapati Sitaram Belvalkar v.
Waman Shripad Mage (Since Dead) Through Lrs. (1981) 4 SCC 143:
AIR 1981 SC 1956), this Court expressly stated that the view taken on a
point of law by a Division Bench of four Judges of this Court was
binding on a Division Bench of three Judges of the Court. And in
Mattulal v. Radhe Lal, (1975) 1 SCR 127 : (AIR 1974 SC 1596) this
Court specifically observed that where the view expressed by two
different Division Benches of this Court could . not be reconciled, the
pronouncement of a Division Bench of a larger number of Judges had to
be preferred over the decision of a Division Bench of a smaller number
of Judges. This Court also laid down in Acharaya Maharajshri
Narandraprasadji Anandprasadji Maharaj v. State of Gujarat (1975) 2
SCR 317 : (AIR 1974 SC 2098), that even where the strength of two
differing Division Benches consisted of the same number of Judges, it
was not open to one Division Bench to decide the correctness or
otherwise of the views of the other. The principle was re-affirmed in
Union of India v. Godfrey Philips. India Ltd (1985) 4 SCC 369: (AIR
1986 SC 806) which noted that a Division Bench of two Judges of this
Court in Jit Ram v. State of Haryana, (1980) 3 SCR 689 : (AIR 1980 SC
1285) had differed from the view taken by an earlier Division Bench of
two Judges in Motilal Padampat Sugar Mills v. State of U. P., (1979) 2
SCR 641 : (AIR 1079 SC 621), on the point whether the doctrine of
promissory estoppel could be defeated by invoking the defence of
executive necessity, and holding that to do so was wholly unacceptable
reference was made to the well accepted and desirable practice of the
later Bench referring the case to a larger Bench when the learned Judges
found that the situation called for such reference.
29. We are of opinion that a pronouncement of law by a Division Bench
of this Court is binding on a Division Bench of the same or a smaller
number of Judges, and in order that such decision be binding, it is not
necessary that it should be a decision rendered by the Full Court or a
Constitution Bench of the Court. We would, however, like to think that
for the purpose of imparting certainty and endowing due authority
decisions of this Court in the future should be rendered by Division
Benches of at least three Judges unless, for compelling reasons, that is
not conveniently possible.
30.Upon the aforesaid considerations, and in view of the nature and
potential of the questions raised in these cases we are of the view that
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there was sufficient justification for the order dated 23 September, 1985
made by the Bench of two learned Judges referring these cases to a larger
Bench for reconsideration of the question decided in K.
Kamalajammaniavaru (dead) by Lrs. (AIR 1985 SC 576 (supra) and
Bhag Singh (AIR 1985 SC 1576) (supra). The preliminary objection
raised by learned counsel for the respondents to the validity of the
reference is overruled.”
54. In a recent decision in the case of Career Institute Educational Society
vs. Om Shree Thakurji Educational Society 8, the Hon’ble Supreme Court has
thrown further light on what constitutes a ‘Precedent’. The Hon’ble Supreme
Court has held that not everything said by a Judge while delivering the
judgment, constitutes a precedent, only thing in a judges decision that can be
construed as precedent is the principle upon which the case is decided. The
relevant paragraph of the judgment is reproduced hereunder :-
“7. In Jayant Verma, this Court has referred to an earlier
decision of this Court in Dalbir Singh v. State of Punjab
to state that it is not the findings of material facts, direct
and inferential, but the statements of the principles of
law applicable to the legal problems disclosed by the
facts, which is the vital element in the decision and
operates as a precedent. Even the conclusion does not
operate as a precedent, albeit operates as res judicata.
Thus, it is not everything said by a Judge when giving
judgment that constitutes a precedent. The only thing
in a Judge’s decision binding as a legal precedent is the
principle upon which the case is decided and, for this
reason, it is important to analyse a decision and isolate
from it the obiter dicta.”
55. The above preposition of law on the law of ‘Precedent’, declared by the
Hon’ble Supreme Court, leaves no doubt whatsoever, about the hierarchy of
the Courts and the binding character of the law declared by the higher courts
8. (2023) 16 SCC 458
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on the lower courts, as well as the decision of Bench of larger strength, over
the decision of lesser strength. Though the law declared by the Supreme
Court, in the form of ratio, is the law of the land, it is equally important, that
the law so declared should have its application to the given facts of the case. In
the reported decision in the case of Krishena Kumar vs. Union of India 9 the
Hon’ble Supreme Court once again (a Bench of 5 Judges) has explained the
importance of sparing application of Doctrine of ‘State Decisis’, which reads
as under :-
“33. Stare decisis et non quieta movere. To adhere to precedent and not
to unsettle things which are settled. But it applies to litigated facts and
necessarily decided questions. Apart from Article 14 of the
Constitution of India, the policy of courts is to stand by precedent and
not to disturb settled point. When court has once laid down a principle
of law as applicable to certain state of facts, it will adhere to that
principle, and apply it to all future cases where facts are substantially
the same. A deliberate and solemn decision of court made after
argument on question of law fairly arising in the case, and necessary to
its determination, is an authority, or binding precedent in the same
court, or in other courts of equal or lower rank in subsequent cases
where the very point is again in controversy unless there are occasions
when departure is rendered necessary to vindicate plain, obvious
principles of law and remedy continued injustice. It should be
invariably applied and should not ordinarily be departed from where
decision is of long standing and rights have been acquired under it,
unless considerations of public policy demand it. But in Nakara’ it was
never required to be decided that all the retirees formed a class and no
further classification was permissible.”
56. It is quite natural and reasonable that the persons who are likely to be
affected by the decisions of the Court, would think that the previous
decisions of the Court rendered on identical facts shall be adhered to. The
9 (1990) 4 SCC 207
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binding nature of a decision of the Court is an issue that also pertains to
judicial discipline and propriety and requires that the decision of a co-ordinate
Bench is followed by the other Courts of co-equal strength and are not lightly
to be disregarded. The Supreme Court has reiterated time and again that
judicial indiscipline is invaluable and inviolable rule to be followed by the
Judges. The Hon’ble Supreme Court in the case of “Mary Pushpam v. Telvi
Curusumary & Ors.“10 has taken a view that a Bench of co-equal strength
must respect a decision of the co-ordinate Bench of the same High Court and
that decision shall have binding effect. In “Krishena Kumar” (supra), the
Hon’ble Supreme Court held that a principle of law laid down by the Court
should be adhered to and applied to all future cases where facts are
substantially the same. We may also refer to “Hari Singh v. State of Haryana“11
wherein the Hon’ble Supreme Court observed that in a judicial system the
Courts of co-ordinate jurisdiction must have consistent opinions on identical
set of facts or on a question of law.” The decision of this Court in “R.S.
Kotyswara Rao” (supra) which stands affirmed by the Hon’ble Supreme Court
is binding on us and we do not find any reason to record our disagreement
with the said judgment.
57. In a recent decision of the Hon’ble Supreme Court in the case of S.
10. 2024 INSC 8A
11. (1993) 3 SCC 114
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Shobha vs. Muthoot Finance Ltd 12., the supreme Court had an occasion to
deal with the similar situation as like in the present case, wherein the petitions
were filed against a company named ‘Muthoot Finance Company’, which is
registered under the Companies Act, 1956. The respondent raised an
objection to the maintainability of writ petition against the company on the
ground that the respondent could not be said, to be discharging any Public
function or could not be said to be in the Public realm. Since the company
was not discharging any public function, which has the trappings of public
duty. Being a private company registered under the Companies Act, 1956, it
was not “State” within the meaning of Article 12 of the Constitution of India.
After dwelling on this issue, the Hon’ble Supreme Court laid down certain
principles to ascertain whether a body is ‘public’ or ‘private’ and should it be
categorized as amenable to writ jurisdiction. The relevant paragraphs of the
judgment are reproduced hereunder, which read thus :-
7. Applying the above test, the respondent herein cannot be called a
public body. It has no duty towards the public. It’s duty is towards its
account holders, which may include the borrowers having availed of the
loan facility. It has no power to take any action, or pass any order
affecting the rights of the members of the public. The binding nature of
its orders and actions is confined to its account holders and borrowers
and to its employees. Its functions are also not akin to Governmental
functions.
8. A body, public or private, should not be categorized as
“amenable” or “not amenable” to writ jurisdiction. The most important
and vital consideration should be the “function” test as regards the
maintainability of a writ application. If a public duty or public function
is involved, any body, public or private, concerned or connection with
12. 2025 SCC OnLine SC 177
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that duty or function, and limited to that, would be subject to judicial
scrutiny under the extraordinary writ jurisdiction of Article 226 of the
Constitution of India.
9. We may sum up thus:
(1) For issuing writ against a legal entity, it would have to be an
instrumentality or agency of a State or should have been entrusted with
such functions as are Governmental or closely associated therewith by
being of public importance or being fundamental to the life of the
people and hence Governmental.
(2) A writ petition under Article 226 of the Constitution of India may
be maintainable against (i) the State Government; (ii) 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.
(3) Although a non-banking finance company like the Muthoot
Finance Ltd, with which we are concerned is duty bound to follow and
abide by the guidelines provided by the Reserve Bank of India for
smooth conduct of its affairs in carrying on its business, yet those are of
regulatory measures to keep a check and provide guideline and not a
participatory dominance or control over the affairs of the company.
(4) A private company carrying on banking business as a Scheduled
bank cannot be termed as a company carrying on any public function or
public duty.
(5) Normally, mandamus is issued to a public body or authority to
compel it to perform some public duty cast upon it by some statute or
statutorv rule. In exceptional cases a writ of mandamus or a writ in the
nature of mandamus may issue to a private body, but only where a
public duty is cast upon such private body by a statute or statutory rule
and only to compel such body to perform its public duty.
(6) Merely because a statue or a rule having the force of a statute
requires a company or some other body to do a particular thing, it does
not possess the attribute of a statutory body.
(7) If a private body is discharging a public function and the denial of
any rights is in connection with the public duty imposed on such body,
the public law remedy can be enforced. The duty cast on the public
body may be either statutory or otherwise and the source of such power
is immaterial but, nevertheless, there must be the public law element in
such action.
(8) According to Halsbury’s Laws of England, 3rd Ed. Vol.30, p.682,
“a public authority is a body not necessarily a county council, municipal
corporation or other local authority which has public statutory duties to
perform, and which perform the duties and carries out its transactions
for the benefit of the public and not for private profit”. There cannot be
any general definition of public authority or public action. The facts ofMayur
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49 943-WP-1876-2001.doceach case decide the point.
58. On perusal of the findings recorded by the Hon’ble Supreme Court,
applying the functionality test, we do not find that the respondent -AIL, is
discharging any public function. Its status is that of a private company,
established with sole commercial object of making profit. The Hon’ble
Supreme Court in the case of R.S. Maddireddy (supra) has taken a view that,
due to change in the status of AIL, after its privatization it is a private entity,
and not performing any public functions, therefore it would not be amenable
to writ jurisdiction, and no writ can be issued against it. The judgment in the
case of Kaushal Kishore (supra) was pointed out by both the parties before the
Hon’ble Supreme Court and the expression “for any other purpose” has been
dealt with in paragraph no. 21, as under:-
“21. After aforesaid two decisions, Parliament sought to amend the
Constitution through the Constitution (First Amendment) Bill, 1951.
In the Statement of Objects and Reasons to the First Amendment, it
was indicated that the citizen’s right to freedom of speech and
expression guaranteed by Article 19(1)(a) has been held by some Courts
to be so comprehensive as not to render a person culpable, even if he
advocates murder and other crimes of violence.
Incidentally, the First Amendment also dealt with other issues, about
which we are not concerned in this discussion. Clause (2) of Article 19
was substituted by a new clause under the Constitution (First
Amendment) Act, 1951.”
59. Even if there is no detailed discussion of Kaushal Kishor (supra), it is
not within our domain to record our observations for non consideration of
the judgment of Kaushal Kishore (supra) while deciding the case of R.S.
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Madireddy (supra). As on today the issue in the present case stands squarely
covered by the decision of the Hon’ble Supreme Court in the case of R.S.
Madireddy (supra), and we are bound by the said decision. We do not find
any reason to take a different view from the one taken by this Court and
affirmed by the Hon’ble Supreme Court.
60. Hence following the same view, we hold that all the three writ
petitions, although maintainable on the dates on which they were instituted,
have ceased to be maintainable, due to privatization of AIL, which is not
discharging any public duty. For the reasons recorded hereinabove, the writ
petitions along with pending Interim Applications, if any, stand disposed of
with liberty to the petitioner to avail remedy in accordance with law. If the
petitioners take recourse to such remedy, the time consumed in pursuing the
present writ petition, shall be excluded for the purpose of limitation, if any
question of limitation arises.
61. The Writ Petition No. 1876 of 2001, Writ Petition No. 809 of 2002,
Writ Petition No. 1333 of 2002 are dismissed. The Chamber Summons No.
284 of 2004 is discharge. No order as to costs.
[MANJUSHA A. DESHPANDE, J.] [SHREE CHANDRASHEKHAR, J.]
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