Patna High Court
Bijay Kumar @ Vijay Kumar vs The State Of Bihar on 3 July, 2025
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9233 of 2020
======================================================
1. Bijay Kumar @ Vijay Kumar Son of Sri Shyam Nandan Sharma, Resident
of Village- Hanuman Nagar, Maranpur, Police Station-Vishnupad, District-
Gaya.
2. Jai Ram Singh Son of Sri Dikpal Singh Resident of Mohalla-Siddharth Puri
Colony, Road No.1, Manpur, Police Station-Muffassil, District-Gaya.
3. Awadhesh Poddar Son of Late Uchit Poddar, Resident of Mohalla-New
Taridih, Police Station-Bodhgaya, District-Gaya
4. Nirmal Yadav Son of Late Sukhdeo Yadav Resident of Village-Baiju Bigha,
Police Station-Bodhgaya, District-Gaya.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Higher Education
Department, Government of Bihar, Patna.
2. The Vice Chancellor, Magadh University at Bodh gaya, District-Gaya.
3. The Registrar, Magadh University at Bodh Gaya, District-Gaya.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Manish Kumar No.2, Advocate.
Mr. Ram Kumar, Advocate.
For the State : Mr. Madhaw Prasad Yadaw, GP-23.
For the University : Mr. Faiz Ahmad, Advocate.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 03-07-2025
Heard Mr. Manish Kumar No.2, learned counsel
along with Mr. Ram Kumar, learned counsel appearing on
behalf of the petitioners, Mr. Madhaw Prasad Yadaw, learned
GP-23 for the State and Mr. Faiz Ahmad, learned counsel for the
University.
2. The petitioners in paragraph no. 1 of the present
writ petition have sought, inter alia, following relief(s), which is
reproduced hereinafter:-
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"That the present writ application is being
filed for setting aside the office order contained in Memo
No. 42 GIB/12 dated 02.02.2012 issued by the Vice
Chancellor, Magadh University at Bodh Gaya, whereby and
whereunder a decision has been taken on 17.01.2012 in the
meeting and declared the high school situated at campus of
Magadh University and Shashi Niketan as self-financing
institution and further to direct the respondent authorities
to pay the arrears of salary as well as current salary to the
petitioner which has been stopped after issuance of order
dated 02.02.2012 till today and / or for any other relief or
reliefs to which the petitioner may be found entitled to in
course of hearing of this writ application."
3. Altogether four writ petitioners are aggrieved by
non-payment of their requisite salary till date which was
stopped after issuance of the order dated 02.02.2012 by the
Registrar of the Magadh University. The petitioners have filed
the present writ petition for payment of the current salary and
arrears of salary from the date he was not paid after issuance of
order dated 02.02.2012.
4. A counter affidavit has been filed on behalf of the
University stating therein that the denial of the salary to the
petitioners is on the same ground and the same is mentioned in
Para-6 and 7 of the counter affidavit. It has been informed in
Para-8 that the school was recognized by the State Government
vide Notification dated 31.08.1984 without financial liability. It
has again been reiterated in Para-9 of the counter affidavit that
the University became unable in making payment of salary from
the internal sources which has resulted into non-payment of
salary to the petitioners.
5. Earlier this Court in C.W.J.C. No. 1948 of 2001
Patna High Court CWJC No.9233 of 2020 dt.03-07-2025
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vide order dated 26.02.2001 had observed that the Management
of the University and the Government may take effective
measures so that the school can be taken over by the
Government and this Court in the said writ petition had also
directed the Vice Chancellor of the University to see necessary
fund be made available for payment of the petitioners forthwith
so that their salary can be paid.
6. The Respondent University admits that after the
order dated 31.01.2017 passed in M.J.C. No. 3953 of 2012, the
petitioners were paid salary for the period from March 2008 to
January 2012 since the liability accrued up to the said period.
7. No doubt, the school is not a government school
and it is run by a Management Committee. The University has
shown inability to take up the affairs of the school in any
manner and as such took decision that school can run by
generating internal finances from any source.
8. A counter affidavit filed on behalf of the
University don't give information, as to whether, who are the
members of the Managing Committee and the resolution of the
Syndicate which was held on 17.01.2012 has also not been
brought on record by way of counter affidavit.
9. In such circumstances, in absence of the vital
information regarding Managing Committee of the School,
which the University has now denied to take up its affairs by
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declaring it to be as a self financed institution, whether the Vice
Chancellor can be absolved from his duty in respect of the
payment of teaching and non-teaching staff, who were
appointed pursuant to the decision taken by the Syndicate of the
University to establish a school for the benefit of the employees
of the University in the University campus?
10. The matter relating to the payment of salary of
the petitioner and similarly situated teaching staff came before
this Court in C.W.J.C. No. 1948 of 2001. This Court has passed,
inter alia, following orders:
"There is no denial that these employees were
appointed in the school and paid salary up to June, 2000.
Whether the school will be taken over by the Government,
will depend upon different terms and conditions and that
too it is between the Management of the University and the
Government. But salary of the petitioners can not be
withheld on this ground.
1, therefore, dispose of the writ application
with a direction to the Vice Chancellor and Registrar of the
Magadh University to see that necessary fund be made
available for payment of the petitioners forthwith so that
their salary can be paid."
11. No counter affidavit has been filed in spite of
opportunity given to the State counsel that can only mean that
the State will certainly honour the decision of the Senate at the
time the order dated 26.02.2001 was passed in C.W.J.C. No.
1948 of 2001 when this Court gave liberty to the University and
the government to proceed for taking over of the Management
of the School by the Government.
12. In absence of development and inaction on the
Patna High Court CWJC No.9233 of 2020 dt.03-07-2025
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part of the Vice Chancellor of the University and State that the
private school imparts elementary education and secondary
education and whether the eligibility in respect of educational
qualification of the teacher is governed by the Right of Children
to Free and Compulsory Education Act, 2009 (hereinafter
referred to as "RTE Act, 2009") and NCTE Notification dated
23.08.2010
and 29.08.2011 which was subject matter before the
Apex Court in case of Society for Unaided Private Schools of
Rajasthan Vs. Union of India and Another reported in (2012)
6 SCC 102, wherein it held that Sections 12(1)(c) and Section
18(3) of the RTE Act, 2009 infringe the fundamental rights
guaranteed to aided and unaided minority schools under Article
30(1) of the Constitution and therefore Sections 12(1)(c) and
Section 18(3) of RTE Act, 2009 alone shall not apply to such
aided and unaided minority schools and as far as other
provisions of RTE Act, 2009 is concerned the same is upheld
even for aided/ and minority schools.
13. In the present case, the petitioner is aggrieved
by the non payment of salary, in so far as the action of the
Managing Committee is concerned and against such action,
whether this Court can exercise power under Article 226 of the
Constitution of India?
14. It is well settled that the power of judicial
Patna High Court CWJC No.9233 of 2020 dt.03-07-2025
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review can be exercised against arbitrary action which was
considered by the Apex Court in the case of St. Mary’s
Education Society (Supra), dealing with the said question
relying on its earlier judgments, the Apex Court, in paragraph
nos. 66, 67, 68, 69, 70 and 75 has held as follows:
“66. Merely because a writ petition can be
maintained against the private individuals
discharging the public duties and/or public
functions, the same should not be entertained if the
enforcement is sought to be secured under the realm
of a private law. It would not be safe to say that the
moment the private institution is amenable to writ
jurisdiction then every dispute concerning the said
private institution is amenable to writ jurisdiction. It
largely depends upon the nature of the dispute and
the enforcement of the right by an individual against
such institution. The right which purely originates
from a private law cannot be enforced taking aid of
the writ jurisdiction irrespective of the fact that such
institution is discharging the public duties and/or
public functions. The scope of the mandamus is
basically limited to an enforcement of the public
duty and, therefore, it is an ardent duty of the court
to find out whether the nature of the duty comes
within the peripheral of the public duty. There must
be a public law element in any action.
67. Our present judgment would remain
incomplete if we fail to refer to the decision of this
Court in Ramakrishna Mission v. Kago Kunya
[Ramakrishna Mission v. Kago Kunya, (2019) 16
SCC 303] . In the said case this Court considered
all its earlier judgments on the issue. The writ
petition was not found maintainable against the
Mission merely for the reason that it was found
running a hospital, thus discharging public
functions/public duty. This Court considered the
issue in reference to the element of public function
which should be akin to the work performed by the
State in its sovereign capacity. This Court took the
view that every public function/public duty would
not make a writ petition to be maintainable against
an “authority” or a “person” referred under Article
226 of the Constitution of India unless the functions
are such which are akin to the functions of the State
or are sovereign in nature.
68. Few relevant paragraphs of the said
judgment are quoted as under for ready reference :
Patna High Court CWJC No.9233 of 2020 dt.03-07-2025
7/14(Ramakrishna Mission case [Ramakrishna Mission
v. Kago Kunya, (2019) 16 SCC 303] , SCC pp. 309-
11 & 313, paras 17-22 & 25-26)
“17. The basic issue before this Court is
whether the functions performed by the hospital are
public functions, on the basis of which a writ of
mandamus can lie under Article 226 of the
Constitution.
18. The hospital is a branch of the
Ramakrishna Mission and is subject to its control.
The Mission was established by Swami Vivekanand,
the foremost disciple of Shri Ramakrishna
Paramhansa. Service to humanity is for the
organisation co-equal with service to God as is
reflected in the motto “Atmano Mokshartham Jagad
Hitaya Cha”. The main object of the Ramakrishna
Mission is to impart knowledge in and promote the
study of Vedanta and its principles propounded by
Shri Ramakrishna Paramahansa and practically
illustrated by his own life and of comparative
theology in its widest form. Its objects include, inter
alia to establish, maintain, carry on and assist
schools, colleges, universities, research institutions,
libraries, hospitals and take up development and
general welfare activities for the benefit of the
underprivileged/backward/tribal people of society
without any discrimination. These activities are
voluntary, charitable and non-profit making in
nature. The activities undertaken by the Mission, a
non-profit entity are not closely related to those
performed by the State in its sovereign capacity nor
do they partake of the nature of a public duty.
19. The Governing Body of the Mission is
constituted by members of the Board of Trustees of
Ramakrishna Math and is vested with the power and
authority to manage the organisation. The
properties and funds of the Mission and its
management vest in the Governing Body. Any
person can become a member of the Mission if
elected by the Governing Body. Members on roll
form the quorum of the annual general meetings.
The Managing Committee comprises of members
appointed by the Governing Body for managing the
affairs of the Mission. Under the Memorandum of
Association and Rules and Regulations of the
Mission, there is no governmental control in the
functioning, administration and day-to-day
management of the Mission. The conditions of
service of the employees of the hospital are
governed by service rules which are framed by the
Mission without the intervention of any
governmental body. (emphasis supplied)
20. In coming to the conclusion that the
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appellants fell within the description of an authority
under Article 226, the High Court placed a
considerable degree of reliance on the judgment of a
two-Judge Bench of this Court in Andi Mukta [Andi
Mukta Sadguru Shree Muktajee Vandas Swami
Suvarna Jayanti Mahotsav Smarak Trust v. V.R.
Rudani, (1989) 2 SCC 691 : AIR 1989 SC 1607] .
Andi Mukta [Andi Mukta Sadguru Shree Muktajee
Vandas Swami Suvarna Jayanti Mahotsav Smarak
Trust v. V.R. Rudani, (1989) 2 SCC 691 : AIR 1989
SC 1607] was a case where a public trust was
running a college which was affiliated to Gujarat
University, a body governed by the State legislation.
The teachers of the University and all its affiliated
colleges were governed, insofar as their pay scales
were concerned, by the recommendations of the
University Grants Commission. A dispute over pay
scales raised by the association representing the
teachers of the University had been the subject-
matter of an award of the Chancellor, which was
accepted by the Government as well as by the
University. The management of the college, in
question, decided to close it down without prior
approval. A writ petition was instituted before the
High Court for the enforcement of the right of the
teachers to receive their salaries and terminal
benefits in accordance with the governing
provisions. In that context, this Court dealt with the
issue as to whether the management of the college
was amenable to the writ jurisdiction. A number of
circumstances weighed in the ultimate decision of
this Court, including the following:
20.1. The trust was managing an affiliated
college.
20.2. The college was in receipt of
government aid.
20.3. The aid of the Government played a
major role in the control, management and work of
the educational institution.
20.4. Aided institutions, in a similar manner
as government institutions, discharge a public
function of imparting education to students.
20.5. All aided institutions are governed by
the rules and regulations of the affiliating
University.
20.6. Their activities are closely supervised
by the University.
20.7. Employment in such institutions is
hence, not devoid of a public character and is
governed by the decisions taken by the University
which are binding on the management.
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21. It was in the above circumstances that
this Court came to the conclusion that the service
conditions of the academic staff do not partake of a
private character, but are governed by a right-duty
relationship between the staff and the management.
A breach of the duty, it was held, would be amenable
to the remedy of a writ of mandamus. While the
Court recognised that “the fast expanding maze of
bodies affecting rights of people cannot be put into
watertight compartments”, it laid down two
exceptions where the remedy of mandamus would
not be available : (SCC p. 698, para 15)
’15. If the rights are purely of a private
character no mandamus can issue. If the
management of the college is purely a private body
with no public duty mandamus will not lie. These
are two exceptions to mandamus.’
22. Following the decision in Andi Mukta
[Andi Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak Trust v.
V.R. Rudani, (1989) 2 SCC 691 : AIR 1989 SC
1607] , this Court has had the occasion to re-visit
the underlying principles in successive decisions.
This has led to the evolution of principles to
determine what constitutes a “public duty” and
“public function” and whether the writ of
mandamus would be available to an individual who
seeks to enforce her right.
25. A similar view was taken in Ramesh
Ahluwalia v. State of Punjab [Ramesh Ahluwalia v.
State of Punjab, (2012) 12 SCC 331 : (2013) 3 SCC
(L&S) 456 : 4 SCEC 715] , where a two-Judge
Bench of this Court held that a private body can be
held to be amenable to the jurisdiction of the High
Court under Article 226 when it performs public
functions which are normally expected to be
performed by the State or its authorities.
26. In Federal Bank Ltd. v. Sagar Thomas
[Federal Bank Ltd. v. Sagar Thomas, (2003) 10 SCC
733] , this Court analysed the earlier judgments of
this Court and provided a classification of entities
against whom a writ petition may be maintainable :
(SCC p. 748, para 18)
’18. From the decisions referred to above,
the position that emerges is that a writ petition
under Article 226 of the Constitution of India may
be maintainable against (i) the State (Government);
(ii) an authority; (iii) a statutory body; (iv) an
instrumentality or agency of the State; (v) a
company which is financed and owned by the State;
(vi) a private body run substantially on State
funding; (vii) a private body discharging public duty
Patna High Court CWJC No.9233 of 2020 dt.03-07-2025
10/14or positive obligation of public nature; and (viii) a
person or a body under liability to discharge any
function under any statute, to compel it to perform
such a statutory function.’ ” (emphasis in original)
69. The aforesaid decision of this Court in
Ramakrishna Mission [Ramakrishna Mission v.
Kago Kunya, (2019) 16 SCC 303] came to be
considered exhaustively by a Full Bench of the High
Court of Allahabad in Uttam Chand Rawat v. State
of U.P. [Uttam Chand Rawat v. State of U.P., 2021
SCC OnLine All 724 : (2021) 6 All LJ 393] ,
wherein the Full Bench was called upon to answer
the following question : (Uttam Chand Rawat case
[Uttam Chand Rawat v. State of U.P., 2021 SCC
OnLine All 724 : (2021) 6 All LJ 393] , SCC OnLine
All para 1)
“1. …'(i) Whether the element of public
function and public duty inherent in the enterprise
that an educational institution undertakes,
conditions of service of teachers, whose functions
are a sine qua non to the discharge of that public
function or duty, can be regarded as governed by the
private law of contract and with no remedy
available under Article 226 of the Constitution?”
70. The Full Bench proceeded to answer the
aforesaid question as under : (Uttam Chand Rawat
case [Uttam Chand Rawat v. State of U.P., 2021
SCC OnLine All 724 : (2021) 6 All LJ 393] , SCC
OnLine All paras 16-20)
“16. The substance of the discussion made
above is that a writ petition would be maintainable
against the authority or the person which may be a
private body, if it discharges public function/public
duty, which is otherwise primary function of the
State referred in the judgment of the Supreme Court
in Ramakrishna Mission [Ramakrishna Mission v.
Kago Kunya, (2019) 16 SCC 303] and the issue
under public law is involved. The aforesaid twin test
has to be satisfied for entertaining writ petition
under Article 226 of the Constitution of India.
17. From the discussion aforesaid and in the
light of the judgments referred above, a writ petition
under Article 226 of the Constitution would be
maintainable against (i) the Government; (ii) an
authority; (iii) a statutory body; (iv) an
instrumentality or agency of the State; (v) a
company which is financed and owned by the State;
(vi) a private body run substantially on State
funding; (vii) a 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
Patna High Court CWJC No.9233 of 2020 dt.03-07-2025
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18. There is thin line between “public
functions” and “private functions” discharged by a
person or a private body/authority. The writ petition
would be maintainable only after determining the
nature of the duty to be enforced by the body or
authority rather than identifying the authority
against whom it is sought.
19. It is also that even if a person or
authority is discharging public function or public
duty, the writ petition would be maintainable under
Article 226 of the Constitution, if Court is satisfied
that action under challenge falls in the domain of
public law, as distinguished from private law. The
twin tests for maintainability of writ are as follows:
1. The person or authority is discharging
public duty/public functions.
2. Their action under challenge falls in
domain of public law and not under common law.
20. The writ petition would not be
maintainable against an authority or a person
merely for the reason that it has been created under
the statute or is to be governed by regulatory
provisions. It would not even in a case where aid is
received unless it is substantial in nature. The
control of the State is another issue to hold a writ
petition to be maintainable against an authority or a
person.” (emphasis supplied)
75. We may sum up our final conclusions as
under:
75.1. An application under Article 226 of the
Constitution is maintainable against a person or a
body discharging public duties or public functions.
The public duty cast may be either statutory or
otherwise and where it is otherwise, the body or the
person must be shown to owe that duty or obligation
to the public involving the public law element.
Similarly, for ascertaining the discharge of public
function, it must be established that the body or the
person was seeking to achieve the same for the
collective benefit of the public or a section of it and
the authority to do so must be accepted by the
public.
75.2. Even if it be assumed that an
educational institution is imparting public duty, the
act complained of must have a direct nexus with the
discharge of public duty. It is indisputably a public
law action which confers a right upon the aggrieved
to invoke the extraordinary writ jurisdiction under
Article 226 for a prerogative writ. Individual wrongs
or breach of mutual contracts without having any
Patna High Court CWJC No.9233 of 2020 dt.03-07-2025
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public element as its integral part cannot be
rectified through a writ petition under Article 226.
Wherever Courts have intervened in their exercise of
jurisdiction under Article 226, either the service
conditions were regulated by the statutory
provisions or the employer had the status of “State”
within the expansive definition under Article 12 or it
was found that the action complained of has public
law element.
75.3. It must be consequently held that
while a body may be discharging a public function
or performing a public duty and thus its actions
becoming amenable to judicial review by a
constitutional court, its employees would not have
the right to invoke the powers of the High Court
conferred by Article 226 in respect of matter
relating to service where they are not governed or
controlled by the statutory provisions. An
educational institution may perform myriad
functions touching various facets of public life and
in the societal sphere. While such of those
functions as would fall within the domain of a
“public function” or “public duty” be undisputedly
open to challenge and scrutiny under Article 226
of the Constitution, the actions or decisions taken
solely within the confines of an ordinary contract
of service, having no statutory force or backing,
cannot be recognised as being amenable to
challenge under Article 226 of the Constitution. In
the absence of the service conditions being
controlled or governed by statutory provisions, the
matter would remain in the realm of an ordinary
contract of service. (emphasis supplied)
75.4. Even if it be perceived that imparting
education by private unaided school is a public duty
within the expanded expression of the term, an
employee of a non-teaching staff engaged by the
school for the purpose of its administration or
internal management is only an agency created by
it. It is immaterial whether “A” or “B” is employed
by school to discharge that duty. In any case, the
terms of employment of contract between a school
and non-teaching staff cannot and should not be
construed to be an inseparable part of the
obligation to impart education. This is particularly
in respect to the disciplinary proceedings that may
be initiated against a particular employee. It is only
where the removal of an employee of non-teaching
staff is regulated by some statutory provisions, its
violation by the employer in contravention of law
may be interfered with by the Court. But such
interference will be on the ground of breach of law
and not on the basis of interference in discharge of
Patna High Court CWJC No.9233 of 2020 dt.03-07-2025
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public duty.
75.5. From the pleadings in the original writ
petition, it is apparent that no element of any public
law is agitated or otherwise made out. In other
words, the action challenged has no public element
and writ of mandamus cannot be issued as the
action was essentially of a private character.”
15. The Officers of the University still hold the
liability to make payment of the salary to the teaching and non-
teaching staff in general, particularly, the petitioners, who are
before this Court, in light of the order passed in C.W.J.C. No.
1948 of 2001.
16. At this stage, learned counsel for the University
informs that the order of this Court dated 26.02.2001 has been
modified in MJC No. 503 of 2011. I am surprised by the
statement which has been made before the Court. The mandate
of Article 215 and the Contempt of Courts Act, 1971 are self
contained. The order cannot be modified in contempt
jurisdiction, in any manner, rather it is required to be executed
in the manner the directions have been issued.
17. This Court can only observe that in view of the
changed circumstance after the order passed in MJC No. 503 of
2011 and the order passed in CWJC No. 1948 of 2001, the
petitioner has made out a case for interference.
18. Be that as it may be, the direction has to be
complied with by the University. In case there is no Managing
Committee of the School, the University owes the responsibility
Patna High Court CWJC No.9233 of 2020 dt.03-07-2025
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to proceed to act in accordance with the direction issued by this
Court vide order dated 26.02.2001.
19. The State must also see that, as to whether, the
School which was established in the year 1981 and running
since then has all the infrastructure and trained and qualified
teachers as per the requirement of RTE Act, 2009 and NCTE
Notifications dated 23.08.2010 and 29.08.2011 and governing
Rules relating to the appointment of teachers and may proceed
to take it over in accordance with law to protect the right of the
children / students as per the mandate of Article 21A of the
Constitution of India.
20. It is expected from the State Government and the
Vice Chancellor of the University that they will do the needful
well within a period of three months in respect of payment of
due salary to the petitioners.
21. The writ petition stands disposed of.
(Purnendu Singh, J)
mantreshwar/-
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