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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    11499           OF 2014 (ARISING OUT OF SLP (C) NO. 30348 OF 2011)

K.K. SAKSENA .....APPELLANT(S)

VERSUS

INTERNATIONAL COMMISSION ON IRRIGATION AND DRAINAGE & ORS. .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

Leave granted.

2) By the impugned judgment dated April  25, 2011 passed by the High  

Court of Delhi in LPA No. 554 of 2006, the High Court has held that the  

writ petition against respondent No.1, namely, International Commission  

on Irrigation and Drainage (for short, 'ICID'), under Article 226 of the  

Constitution is not maintainable as it is not a 'State' under Article 12 of   

the Constitution.  It has also held that its actions or not amenable for  

judicial review under Article 226 of the Constitution, either.  It resulted in  

dismissal of the said intra-court appeal, which was filed challenging the  

judgment of the learned Single Judge rendered in the writ petition filed

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by the appellant taking the same view.  The appellant even filed review  

petition seeking review of the judgment dated April 25, 2011, which met  

the same fate as the said review petition was dismissed by the High  

Court by orders dated August 05, 2011.  

3) From the  aforesaid,  it  is  apparent  that  the  issue  agitated  before  us  

pertains to the maintainability of the writ petition under Article 226 of the  

Constitution of India against the respondents herein. This has arisen in  

the following circumstances:

4) The appellant herein was appointed to the post of Secretary, ICID, vide  

letter of appointment dated January 03, 1997.  Pursuant to that letter,  

he joined the services in ICID on January 20, 1997.  Thereafter,  his  

services  were  terminated  vide  letter  dated  August  15,  1999,  with  

immediate effect from August 16, 1999, on the ground that the same  

were  no  longer  required  by  the  ICID.   It  was  followed  by  a  

communication dated August 27, 1999 whereby the appellant was given  

two cheques in the sum of  ₹77,388/- and  ₹98,141.50/- towards three  

months' basic pay in lieu of notice and the dues towards contributory  

provident fund respectively.  It  would be pertinent to note that these  

dues were given pursuant to the request of the appellant contained in  

his letter dated August 19, 1999 claiming three months' salary as per  

the rules as also payments for provident fund.  After receiving these

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cheques,  the  appellant  requested  for  revocation  of  the  order  of  

termination,  which  was  followed  by  reminders  dated  September  02,  

1999 and October 16, 1999.  As he did not receive any response to the  

aforesaid requests, he approached the High Court by filing writ petition  

under  Article  226  of  the  Constitution  of  India  alleging  that  the  

termination of his services by the ICID was an act of arbitrariness and  

unreasonableness and, thus, violative of Article 14 of the Constitution.  

Plea of the appellant in this behalf was that the said order of termination  

was without holding the inquiry and no reason was given to dispense  

with the said inquiry as well  and, therefore,  was in  violation of  ICID  

Employees Conduct Rules, 1967, particularly Rule 33(b) thereof, which  

mandates reason to be given for dispensing with the inquiry.

5) In the writ petition, the appellant also specifically took the plea that ICID  

is a 'State' within the meaning of Article 12 of the Constitution of India  

and further it is involved in performing public duty.  It was averred that  

ICID is under the control of Government and the criteria and test set out  

for determining whether a corporation or society is a 'State' or 'other  

authority'  under  Article  12  of  the  Constitution  of  India  is  satisfied  

inasmuch as ICID was established by the Central Government by giving  

a  grant  of  ₹15,000/-  in  1950;  that  there  are  instances  when  the  

Government officers had come on deputation to the society; that the

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Central Government has been paying the subscription for administrative  

and other functions of ICID and, hence, the financial control rests with  

the Government; that the staffing pattern of the ICID is in accord with  

the line of the Government; that ICID has monopoly status since it is the  

only society established by the Government of India to bring together  

information on irrigation from India and outside; that the Government  

provides to it irrigation related information generated in the country and  

uses public cost and also uses information pulled by it for Government  

irrigation works; and that the President or Vice President in-charge of  

the central office of the society is a Government officer and the officer of  

the Central Government is ex-officio Secretary General, though he does  

not draw salary from ICID.  Additional plea was taken that in any case  

writ  petition  under  Article  226  of  the  Constitution  of  India  was  

maintainable even if  ICID does not qualify  to be a 'State'  within the  

purview of Article 12 of the Constitution inasmuch as the term 'other  

authority' appearing in Article 226 was of much wider connotation and it  

would  embrace  within  itself  those  authorities  which  discharge  public  

functions or public duty of great magnitude.  The appellant pleaded that  

going by the functions which ICID is  discharging,  it  is  apparent  that  

these are public functions and, therefore, writ petition under Article 226  

of the Constitution of India could be filed against it.

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6) ICID filed its counter affidavit controverting the aforesaid pleas taken by  

the appellant in his writ petition.  The stand taken by the appellant was  

refuted by contending that ICID is neither a State under Article 12 of the  

Constitution of India nor is it amenable to writ jurisdiction under Article  

226 of the Constitution.  It was put forth that the said society does not  

fulfill the requisite tests which would bring it within the purview of Article  

12 of the Constitution inasmuch as the management of the affairs of the  

society is vested in an International Executive Council (IEC) consisting  

of  office  bearers  and  one  duly  appointed  representative  from  each  

National  Committee;  that  the  office  bearers  of  ICID  consist  of  one  

President, 9 Vice Presidents and 1 Secretary General and all the office  

bearers, except the Secretary General, who is the full-time office bearer  

appointed by IEC, are elected by majority of votes of the members of  

the  said  Council;  that  the  representatives  of  the  World  Bank,  FAO,  

United  National  Educational,  Scientific  and  Cultural  Organization  

(UNESCO) and International Irrigation Management Institute amongst  

others, have a place in the International Executive Council of ICID as  

permanent observers; that the representatives of the World Bank, FAO,  

UNESCO and other related UN agencies also participate in the work  

and  various  activities  of  ICID;  that  ICID  comprises  about  30  staff  

members in all and works under the general supervision of the Council  

and under the immediate direction of the President; that Clause 7.3 of

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the Constitution of ICID empowers the Secretary General to frame such  

rules and procedure as he considers necessary for governing the staff  

and for the proper functioning of the central office in consultation with  

the staff committee; that the following of a staffing pattern by ICID in the  

line of the Central Government does not bring the society under the  

control of the State; that ICID is an independently funded organization  

whose functions are financed by subscriptions from several countries;  

and that deputation of some officers from the Government at certain  

times does not give it the character of a State.

7) Plea of the appellant regarding availability of remedy under Article 226  

of  the  Constitution  was  opposed  on  the  ground  that  ICID  does  not  

perform  any  public  duty  which  would  make  it  amenable  to  writ  

jurisdiction since its objects stimulate and promote the development and  

the  application  of  the  arts,  sciences  and  techniques  of  engineering,  

agriculture, economics, ecology and social sciences in managing water  

and  land  resources  for  irrigation,  drainage,  flood  control  and  river  

training and for  research in a more comprehensive manner adopting  

upto  date  techniques  and  its  activities  cannot  be  stated  to  be  

intrinsically public in nature or closely related to those performable by  

the State in its sovereign capacity.

8) The order of termination was sought to be justified on merits as well,

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taking  up  the  contention  that  the  appellant  was  not  performing  the  

duties satisfactorily and, therefore, his services were dispensed with, as  

per  the Rules and,  hence, no inquiry was necessary.   Various other  

grounds were also pleaded to justify the order of termination.

9) After hearing the arguments on either side, the learned Single Judge of  

the High Court dismissed the writ petition at the threshold, without going  

into the question about the validity of the termination of the appellant's  

services as he held that ICID is neither a 'State' under Article 12 of the  

Constitution, nor is it discharging functions which will bring it within the  

ambit of public duty making it amenable to the jurisdiction of the High  

Court under Article 226 of the Constitution of India.  As a result, writ  

petition  was  dismissed  vide  judgment  dated  January  17,  2006.   As  

pointed  out  above,  this  view of  the  learned Single  Judge has  been  

upheld by the Division Bench of the High Court vide impugned judgment  

dated April 25, 2011.  In the process, the Division Bench has discussed  

the aspect of maintainability on the touchstone of Article 12 as well as  

Article 226 of the Constitution of India, in great details.

10) Mr. Dinesh Agnani, learned senior counsel appearing for the appellant,  

was candid in conceding that he was not joining issues insofar as the  

judgment of the High Court hold ICID not to be 'State' under Article 12 of  

the Constitution.  Thus, this part of the judgment has been accepted by

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the appellant.  However, the quintessence of the argument advanced by  

him, with great emphasis, was that ICID was performing public duty.  He  

referred  to  the  functions  which  ICID  is  discharging  and  made  a  

strenuous attempt to show that those functions would come within the  

ambit of public functions and the duties of ICID as public duty, which  

would  bring  it  within  the  ambit  of  the  expression  'other  authority'   

appearing in Article 226 of the Constitution and making ICID amenable  

to the writ jurisdiction.

11) Because of the concession of the learned senior counsel, though we  

are absolved from undertaking any exercise on the character of ICID on  

the issue as to whether it is a 'State' under Article 12 of the Constitution  

or  not,  nevertheless,  we deem it  appropriate to delve the manner in  

which this issue is dealt with by the High Court.  Reason for doing the  

same is that it will have some bearing on the other related issue which  

is the main brunt of the appellant's submissions.

12) The High Court has referred to the provisions of the Constitution of ICID  

while embarking on the aforesaid discussion and in this process it has  

noted as under:

“14...The  preamble  which  occurs  in  Article  1  of  the  Constitution of ICID reads as follows:

“1.1  The International Commission on Irrigation and  Drainage  is  established  as  a  Scientific,  Technical,

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Professional,  and  Voluntary  Not-for-Profit  Non- Governmental  International  Organization  (NGO- ONG),  dedicated,  inter  alia,  to  enhance  the  world- wide  supply  of  food  and  fibre  for  all  people  by  improving  water  and  land  management,  and  the  productivity of irrigated and drained lands through the  appropriate management of water, environment and  the  application  of  irrigation,  drainage  and  flood  control techniques.

1.2  In the text of this Constitution, the International  Commission on Irrigation and Drainage is referred to  as the Commission or as ICID (CIID in the French  version) and among international authorities, as CID  (CIID).”

15.   Article  3  deals  with  Membership.   The  basis  of  membership is as follows:

“3.1   ICID  consists  of  National  Committees  of  Participating Countries, on the basis of one National  Committee  for  each  such  country.   Where  no  National Committee exists, officers of government or  of an institution or institutions effectively representing  interests  within  the  scope  of  the  objects  of  the  Commission  may  participate  in  ICID  activities.   In  such  cases  one  officer  shall  be  designated  as  Representative.

3.2   Any  geographical  area  independently  administered by a sovereign government and having  interest in the activities of the Commission shall be  eligible  to  participate  in  the  activities  of  the  Commission.  Accordingly, in exceptional cases, the  Council  may,  having  regard  to  the  coexistence  of  separate sovereign geographical areas or countries,  accept the representation of the sovereign parts of a  country  by  separate  National  Committees.   In  the  case of a Federal System of government, or similar  set-up,  only  one  National  Committee  shall  be  recognized for membership in ICID.”

16.  Article 4 deals with the composition of the national  committees and its responsibility.

17.   Article  5  deals  with  the  International  Executive

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Council.  Clause 5.1 of Article 5 reads as follows:

“5.1  The International Executive Council, hereinafter  called the Council, the Executive Council or the IEC  is vested with the management of the affairs of the  International Commission on Irrigation and Drainage.

5.2  The Council shall consider all matters of policy  which may be initiated or sponsored by any member  National  Committee  or  Office-Bearer  or  by  the  Management  Board  and  may  itself  initiate  and  determine  or  otherwise  advise  and  lay  down  any  matter of policy.  The Central Office of ICID shall act  as an instrument for carrying into effect all decisions  taken  by  the  Council.   The  Council  shall  also  consider what action, if  any, need be taken on the  recommendations  or  conclusions  of  the  studies,  experiments  or  discussions  organized  by  the  Commission.  All  matters affecting the executive or  administrative  functions  and  financial  liabilities  of  ICID  must  come  up  before  the  Council  and  its  decisions shall be conclusive.”

18.  Article 6 provides for the office-bearers.  Clause 6.2  deals with the election of President and Vice-Presidents.  Clause 6.3.1  provides for  the appointment  of  Secretary  General.  It is profitable to reproduce clause 6.3.1:

“6.3.1  Nomination:  The Secretary-General shall be  nominated by the President, acting as Chairperson of  the Management Board, and appointed by Council.

19.  Article 7 deals with Management.  Clause 7.1 deals  with Management Board.  It is as follows:

“7.1   The  Council  shall  be  assisted  in  the  management of the affairs of the Commission by a  Management  Board  composed  of  the  President  of  ICID, who shall be the Chairperson, immediate past  President  of  ICID (one year  only),  Chairpersons of  the  Permanent  Technical  Activities  Committee,  Permanent  Finance  Committee  and  Permanent  Committee on Strategy Planning and Organizational  Affairs and the Secretary-General.”

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Clause 7.2 of  Article 7 provides that  the Central  Officer shall be located in New Delhi, India and shall be  maintained under the general provision of the Council and  under the immediate direction of the President.  Clause  7.3.1 deals with financial management.

20. Article  10  provides  for  dues,  subscriptions  and  funds.  It is apposite to reproduce clauses 10.1, 10.2 and  10.3, which read as follows:

“Annual Subscriptions

10.1  In order to defray the cost of the activities of the  Commission  or  for  special  purposes,  the  National  Committees  or  representative  organizations  of  participating countries shall regularly pay to the order  of the Secretary-General annual subscriptions (in as  near the beginning of each calendar year as may be  possible) on the basis pre-determined by the Council  and taking into consideration, inter alia, the interest  and the capacity to pay of the participating country.  National Committees or representative organizations  of  participating countries  shall  also pay such other  special subscriptions as may be determined by the  Council.

10.2   For  each  Congress,  regional  conference,  technical  session,  international  workshop  or  such  other  international  activity,  the  Council  may,  in  consultation with the National Committee of the host  country,  fix  individual  registration  fees,  or  fees  for  participating organizations.  In addition, the portion of  the proceeds that should accrue to the budget of the  Central Office of the Commission from such events  shall also be determined by the Council.

Funds 10.3   The  Central  Office  shall  be  authorized  to  receive and to handle as funds of the Commission,  any subscription, subvention or gift that may be made  in  the  general  interests  of  the  objects  of  the  Commission,  or  for  specific  research,  special  investigation  or  experimental  work;  and  it  may  arrange,  under  general  authority  given  by  the  Council,  cooperative  research,  investigations  or  experimental  work  with  other  international

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organizations,  properly  qualified  institutions,  governmental or private, or with technical societies or  associations.”

 21.   Article  12  deals  with  dissolution  and  liquidation.  Clause 12.1 deals with dissolution which reads as follows:

“12.1   ICID  may  be  declared  dissolved  only  by  a  decision  to  be  reached  at  a  regular  or  a  special  meeting of the Council and provided that at least two- thirds of the total number of participating countries,  whether  represented  at  such  a  meeting  of  the  Council or not, vote for dissolution.”

 Clause 12.2 deals with liquidation and its procedure.”

13) ICID has also framed its bye-laws which provide for election of office  

bearers,  working  bodies  of  ICID,  permanent  committees,  role  and  

membership, temporary working bodies, International Executive Council  

and various other aspects.  After taking note of the aforesaid provisions,  

the High Court while coming to the conclusion that respondent No.1 is  

not  a  'State'  under  Article  12  of  the  Constitution,  summed  up  the  

position in the following manner:

“23.  On a comprehensive survey of the Constitution of  ICID and the bye-laws, we do not perceive that there is  either  any  control  of  the  government  either  financially,  functionally or administratively or it  is dominated by any  action of the government.  We do not even remotely see  that there is any kind of pervasive control.  Some officers  may be coming on deputation regard being had to  the  character of the ICID or there may be initially a grant of  Rs.15,000/- in 1950 or some aid at times but that does not  clothe it with the character and status of 'other authority'  as understood under Article 12 of the Constitution of India.  Hence,  we  conclude  and  hold  that  ICID  is  not  an  instrumentality of state or other authority under Article 12  of the Constitution of India.”

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14) We may also like to point out that the aforesaid examination of the issue  

undertaken by the High Court is keeping in view the principles laid down  

by this  Court  in  catena of  judgments and the tests  which are  to be  

applied to arrive at the decision as to whether a particular authority can  

be termed as 'State' or 'other authority' within the meaning of Article 12.  

It took note of the Constitution Bench decision in Ajay Hasia & Ors. v.  

Khalid Mujib Sehravardi & Ors.1, wherein the following six tests were  

culled out from its earlier judgment in the case of  Ramana Dayaram  

Shetty v. International Airport Authority of India & Ors2:

“(1)  One thing is clear that if the entire share capital of  the corporation is held by Government it would go a long  way  towards  indicating  that  the  corporation  is  an  instrumentality  or  agency  of  Government.  (SCC  p.507,  para 14)

(2)   Where  the  financial  assistance  of  the  State  is  so  much  as  to  meet  almost  entire  expenditure  of  the  corporation,  it  would  afford  some  indication  of  the  corporation  being  impregnated  with  governmental  character. (SCC p.508, para 15)

(3)   It  may  also  be  a  relevant  factor...whether  the  corporation  enjoys  monopoly  status  which  is  State  conferred or State protected.  (SCC p.508, para 15)

(4)  Existence of deep and pervasive State control may  afford an indication that the corporation is a State agency  or instrumentality.  (SCC p.508, para 15)

(5)  If the functions of the corporation of public importance  and closely related to governmental functions, it would be  

1 (1981) 1 SCC 722 2 (1979) 3 SCC 489

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a  relevant  factor  in  classifying  the  corporation  as  an  instrumentality or  agency of  Government.   (SCC p.509,  para 16)

(6)   “Specifically,  if  a  department  of  Government  is  transferred to a corporation, it  would be a strong factor  supportive of this inference' of the corporation being an  instrumentality or  agency of  Government.   (SCC p.510,  para 18).”

15) The Court  also took into  consideration and referred  to  the  following  

passage  from  the  judgment  in  Pradeep  Kumar  Biswas  &  Ors.  v.  

Indian Institute of Chemical Biology & Ors.3:

“40.  The picture that ultimately emerges is that the tests  formulated in  Ajay Hasia are not a rigid set of principles  so that if a body falls within any one of them it must, ex  hypothesi, be considered to be a State within the meaning  of  Article  12.   The  question  in  each  case  would  be  –  whether in the light of the cumulative facts as established,  the  body  is  financially,  functionally  and  administratively  dominated  by  or  under  the  control  of  the  Government.  Such control must be particular to the body in question  and must be pervasive.  If this is found then the body is a  State  within  Article  12.   On  the  other  hand,  when  the  control  is  merely  regulatory  whether  under  statute  or  otherwise, it would not serve to make the body a State.”

16) The aforesaid judgment was relied upon by another Constitution Bench  

in  M/s. Zee Telefilms Ltd. & Anr.  v.  Union of India & Ors.4 In that  

case, the Court was concerned with the issue as to whether Board of  

Control  for  Cricket  in India (BCCI)  is a 'State'  within the meaning of  

Article  12  of  the  Constitution.   After  detailed  discussion  on  the  

functioning of the BCCI, the Constitution Bench concluded that it was  3 (2002) 5 SCC 111 4 (2005) 4 SCC 649

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not a 'State' under Article 12 and made the following observations in this  

behalf:

“30.  However, it is true that the Union of India has been  exercising certain control over the activities of the Board  in regard to organising cricket matches and travel of the  Indian  team  abroad  as  also  granting  of  permission  to  allow the foreign teams to come to India.  But this control  over the activities of the Board cannot be construed as an  administrative control.  At best this is purely regulatory in  nature and the same according to this Court in  Pradeep  Kumar Biswas case is not a factor indicating a pervasive  State control of the Board.”

17) Before arriving at the aforesaid conclusion, the Court had summarized  

the legal position, on the basis of earlier judgments, in para 22, which  

reads as under:

“22.  Above is the  ratio decidendi  laid down by a seven- Judge Bench of this Court which is binding on this Bench.  The facts of the case in hand will have to be tested on the  touchstone  of  the  parameters  laid  down  in  Pradeep  Kumar  Biswas  case.   Before  doing  so  it  would  be  worthwhile  once  again  to  recapitulate  what  are  the  guidelines laid down in Pradeep Kumar Biswas case for a  body to be a State under Article 12.  They are:-

“(1)  Principles laid down in Ajay Hasia are not a rigid  set of principles so that if a body falls within any one  of them it must ex hypothesi, be considered to be a  State within the meaning of Article 12.

(2)   The  question  in  each  case  will  have  to  be  considered  on  the  basis  of  facts  available  as  to  whether  in  the  light  of  the  cumulative  facts  as  established,  the  body  is  financially,  functionally,  administratively dominated, by or under the control of  the Government.

(3)  Such control must be particular to the body in  question and must be pervasive.

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(4)  Mere regulatory control whether under statute or  otherwise would not serve to make a body a State."

18) It is in the context of the aforesaid legal position and the Constitution of  

ICID, its bye-laws were examined by the High Court  and conclusion  

arrived at (as already extracted above) that ICID does not qualify to be  

a 'State' under Article 12 of the Constitution.

19) It would be necessary to keep in mind the aforesaid legal position qua  

Article 12, which has been accepted by the learned senior counsel for  

the appellant, while dealing with the issue as to whether ICID performs  

public functions or discharges public duty which makes it amenable to  

writ jurisdiction under Article 226 of the Constitution of India.  Thus, we  

have to proceed on the premise that there is no pervasive governmental  

control  over  the  functioning  of  ICID  and  merely  because  some  

government officers come on deputation, it has no consequence.

20) Keeping in view the aforesaid matrix, we proceed to the issue which  

was canvassed before us.

21) Before we take note of the submissions of Mr. Agnani, it would be apt to  

scan through the judgment of the High Court to find as to how this issue  

is dealt with by it.

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22) After  taking  note  of  certain  judgments  of  this  Court  wherein  the  

principles are laid down as to how the term 'authority' used in Article 226  

is to be read in contradistinction to the same term used in Article 12 of  

the Constitution and what would constitute public function/public duties,  

the Court took note of Clause 2.1 and 2.2, which read as follows:

“Mission

2.1   The  Mission  of  the  International  Commission  on  Irrigation and Drainage is to stimulate and promote the  development  of  the  arts,  sciences  and  techniques  of  engineering,  agriculture,  economics,  ecology  and social  science  in  managing  water  and  land  resources  for  irrigation,  drainage,  flood  control  and  river  training  applications,  including  research  and  development  and  capacity  building,  adopting  comprehensive  approaches  and up-to-date techniques for  sustainable  agriculture in  the world.

Scope

2.2   The  Commission  in  achieving  its  mission  may  consider the following objectives:

“(a)   Planning,  financing,  socio-economic  and  environmental  aspects  of  irrigation,  drainage,  flood  control  and  undertakings  for  the  reclamation  and  improvement  of  lands  as  well  as  the  design,  construction  and  operation  of  appurtenant  engineering  works  including  dams,  reservoirs,  canals,  drains  and  other  related  infrastructure  for  storage,  conveyance,  distribution,  collection  and  disposal of water.

(b)   Planning,  financing,  socio-economic  and  environmental aspects of schemes for river training  and behaviour,  flood control  and protection against  sea water  intrusion of  agricultural  lands as well  as  the  design,  construction  and  operation  of  appurtenant works, except such matters as relate to

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the  design  and  construction  of  large  dams,  navigation works and basic hydrology.

(c)   Research  and  development,  training  and  capacity  building  in  areas  related  to  basic  and  applied  science,  technology,  management,  design,  operation  and  maintenance  of  irrigation,  drainage,  flood  control,  river  training  improvement  and  land  reclamation.

(d)  Facilitation of international inputs required by the  developing  countries,  particularly  the  low  income  countries lagging in the development of irrigation and  drainage.

(e)  Promotion  of  the  development  and  systematic  management  of  sustained  irrigation  and  drainage  systems.

(f)  Pooling of international knowledge on the topics  related to irrigation, drainage and flood control and  making it available worldwide.

(f)   Addressing  of  international  problems  and  challenges  posed  by  irrigation,  drainage  and  flood  control  works  and  promoting  evolution  of  suitable  remedial measures.

(h) Promoting savings in use of water for agriculture.

(i)  Promoting equity including gender equity between  users  and  beneficiaries  of  irrigation,  drainage  and  flood control systems.

(j) Promotion of preservation and improvement of soil  and water quality of irrigated lands.”

23) From the aforesaid it  transpires that ICID has been established as a  

scientific,  technical,  professional  and  voluntary  non-governmental  

international organization dedicated to enhance the worldwide supply of  

food and fibre for all people by improving water and land management

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of the productivity of irrigated and drained lands so that the appropriate  

management  of  water,  environment  and  the  application  of  irrigation,  

drainage and flood control techniques.  In the opinion of the High Court,  

these functions are not similar to or closely related to those performed  

by the State in  its  sovereign capacity.   The activities  undertaken by  

ICID,  a  non-governmental  organization,  do  not  actually  partake  the  

nature of public duty or State action and there was absence of public  

element.  The High Court also held that duties discharged do not have a  

positive  application  of  public  nature  as  ICID  carries  on  voluntary  

activities, which many a non-governmental organizations perform.

24) It was argued by Mr. Agnani, learned senior counsel appearing for the  

appellant,  that  the  High  Court  grossly  erred  in  holding  a  society  

registered in India as international body when the settled law was that  

once incorporated in an Act of country, the body was amenable to law of  

the said country even if its (i) activities were spread abroad (or beyond  

territorial  boundary of the country) or subscribers of Memorandum of  

Association (MOA) and office bearers, etc. including the foreigners; (ii)  

ICID was not granted any international status by Government of India  

under UN Privileges and Immunities Act; and (iii) ICID was not listed as  

an international body in the Government of India, Ministry of External  

Affairs list of international organizations in India.

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25) Referring  to  the  judgment  in  M/s.  Zee  Telefilms  Ltd.  (supra),  Mr.  

Agnani's submission was that in that case the Constitution Bench had  

held that if the function of the body were akin to State functions, the  

aggrieved party could always seek remedy by way of writ petition under  

Article  226  of  the  Constitution  even  if  the  body  was  not  the  State.  

According  to  him,  the  High  Court  omitted  to  refer  to  its  following  

functions  laid  down  by  the  Government  of  India  in  1948  and  

incorporated  in  the  MOA of  ICID  as  the  objects  and  the  means  of  

accomplishing these objects:

“To  encourage  progress  in  design,  construction,  maintenance and operation of  large and small  irrigation  works and canals (including navigation canals); to bring  together information thereon; and to study all  questions  relating thereto.”

He  argued  that  the  design,  construction,  maintenance  and  

operation  of  irrigation  works  are  functions  of  State  Irrigation  

Departments, duly supported by the Ministry of Irrigation.  The Ministry  

does not directly execute these works but only facilitates their execution  

and its facilitating activities do not take it away from the ambit of State  

functions.  ICID also works as Secretariat and its above functions were  

akin to State functions.  Para 31 of the Constitution Bench decision in  

M/s. Zee Telefilms Ltd. (supra), while referring to the decision in Shri  

Anadi  Mukta  Sadguru  Shree  Muktajee  Vandasjiswami  Suvarna  

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Jayanti Mahotsav Smarak Trust & Ors. v.  V.R. Rudani & Ors.5, has  

further said that form of body concerned is not very much relevant and  

what  is  relevant  is  the nature  of  duty  imposed on  the body.   Thus,  

according to him, the writ against ICID was admissible on account of its  

above defined nature of duty.   

He  further  argued  that,  in  fact,  the  learned  Single  Judge  had  

admitted that functions of ICID were of relevance and value to public  

and Government which itself shows public nature of its functions, but  

writ was denied saying they were not intrinsically public in nature when  

no verdict of this Court ever classified a public function into intrinsic and  

non-intrinsic.

26) His next submission was that the High Court also did not discuss the  

MOA of  ICID,  though it  was necessary  to  deal  with the same while  

deciding  an  issue  of  this  nature.   His  other  related  argument  was  

predicated  on  the  judgment  of  this  Court  in  Anadi  Mukta  Sadguru  

(supra).   He  particularly  referred  to  para  14  of  the  said  judgment  

wherein this Court ruled that mandamus cannot be refused to aggrieved  

party  if  service  conditions  were  not  purely  of  private  nature.   His  

submission was that the High Court, in analyzing admissibility of writ  

under  Article  226  of  the  Constitution,  has  neglected  the  service  

conditions  of  ICID,  which  from  outset  include  the  pay  as  paid  in  5 (1989) 2 SCC 691

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Government  of  India,  fundamental  and  supplementary  rules  of  

Government  of  India,  permanency,  lien,  deputation  of  Government  

servants etc. as in Government sponsored societies.

He concluded his submissions by insisting that this Court should  

accept that ICID, being a body incorporated in India, discharged public  

function and was amenable to writ jurisdiction under Article 226 of the  

Constitution  of  India.   When  the  Government  had  laid  down  its  

functions, ICID could not be a private body and the appellant, according  

to the note on his selection as new Secretary of ICID, was appointed to  

a  public  office  and  ICID,  by  its  own  admission,  was  a  Government  

sponsored society.

27) Learned counsel for respondent No.1, on the other hand, placed heavy  

reliance upon the reasons given by the High Court in its judgment and  

submitted  that  every  aspect  of  the  matter  has  been  lucidly  and  

convincingly dealt with in the impugned judgment, which was rendered  

keeping in view the principles laid down by this Court and, therefore, it  

would not warrant any interference.

28) We have given our thoughtful consideration to the arguments of learned  

counsel for the parties.

29) If the authority/body can be treated as a 'State' within the meaning of

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Article  12 of  the Constitution of  India,  indubitably  writ  petition  under  

Article 226 would be maintainable against such an authority/body for  

enforcement of fundamental and other rights. Article 12 appears in Part  

III  of  the  Constitution,  which  pertains  to  'Fundamental  Rights'.  

Therefore,  the definition contained in Article 12 is for the purpose of  

application of  the provisions contained in Part III.   Article 226 of the  

Constitution, which deals with powers of High Courts to issue certain  

writs, inter alia, stipulates that every High Court has the power to issue  

directions,  orders  or  writs  to  any  person  or  authority,  including,  in  

appropriate cases, any Government, for the enforcement of any of the  

rights conferred by Part III and for any other purpose.

30) In this context, when we scan through the provisions of Article 12 of the  

Constitution, as per the definition contained therein, the 'State' includes  

the  Government  and  Parliament  of  India  and  the  Government  and  

Legislature of each State as well as “all local or other authorities within  

the territory of India or under the control of the Government of India”.  It  

is in this context the question as to which body would qualify as 'other  

authority' has come up for consideration before this Court ever since,  

and the test/principles which are to be applied for ascertaining as to  

whether a particular body can be treated as 'other authority' or not have  

already  been  noted  above.   If  such  an  authority  violates  the

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fundamental right or other legal rights of any person or citizen (as the  

case  may  be),  writ  petition  can  be  filed  under  Article  226  of  the  

Constitution invoking the extraordinary jurisdiction of the High Court and  

seeking appropriate direction, order or writ.  However, under Article 226  

of the Constitution, the power of the High Court is not limited to the  

Government or authority which qualifies to be a 'State' under Article 12.  

Power is extended to issue directions, orders or writs “to any person or  

authority”.  Again, this power of issuing directions, orders or writs is not  

limited to enforcement of fundamental rights conferred by Part III, but  

also 'for any other purpose'.  Thus, power of the High Court takes within  

its sweep more “authorities” than stipulated in Article 12 and the subject  

matter which can be dealt with under this Article is also wider in scope.

31) In this context, the first question which arises is as to what meaning is to  

be assigned to the expression 'any person or authority'.  By catena of  

judgments rendered by this Court, it now stands well grounded that the  

term 'authority' used in Article 226 has to receive wider meaning than  

the same very term used in Article 12 of the Constitution.  This was so  

held in Shri Anadi Mukta Sadguru (supra).  In that case, dispute arose  

between the Trust which was managing and running science college  

and teachers of the said college.  It  pertained to payment of  certain  

employment related benefits like basic pay etc.  Matter was referred to

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the  Chancellor  of  the  Gujarat  University  for  his  decision.   The  

Chancellor passed an award, which was accepted by the University as  

well as the State Government and a direction was issued to all affiliated  

colleges to pay their teachers in terms of the said award.  However, the  

aforesaid  Trust  running  the  science  college  did  not  implement  the  

award.  Teachers filed the writ petition seeking mandamus and direction  

to the trust to pay them their dues of salary, allowances, provident fund  

and gratuity in accordance therewith.  It is in this context an issue arose  

as to whether  writ  petition under  Article  226 of  the Constitution was  

maintainable against the said Trust which was admittedly not a statutory  

body or authority under Article 12 of the Constitution as it was a private  

trust running an educational institution.  The High Court held that the  

writ petition was maintainable and said view was upheld by this Court in  

the  aforesaid  judgment.   The  discussion  which  is  relevant  for  our  

purposes is contained in paras 14 to 19.  However, we would like to  

reproduce paras 14, 16 and 19, which read as under:

“14.   If  the  rights  are  purely  of  a  private  character  no  mandamus can issue.  If the management of the college  is purely a private body with no public duty mandamus will  not  lie.   These are two exceptions to Mandamus.   But  once these are absent and when the party has no other  equally convenient remedy, mandamus cannot be denied.  It  has  to  be  appreciated  that  the  appellants-trust  was  managing the affiliated college to which public money is  paid  as  Government  aid.   Public  money  paid  as  Government  aid  plays  a  major  role  in  the  control,  maintenance and working of educational institutions.  The  aided institutions like  Government  institutions discharge

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public function by way of imparting education to students.  They  are  subject  to  the  rules  and  regulations  of  the  affiliating  University.   Their  activities  are  closely  supervised by the University authorities.  Employment in  such institutions,  therefore,  is  not  devoid  of  any  public  character.  (See – The Evolving Indian Administrative Law  by M.P. Jain (1983) p.266).  So are the service conditions  of  the  academic  staff.   When  the  University  takes  a  decision regarding their pay scales, it will be binding on  the management.  The service conditions of the academic  staff are, therefore, not purely of a private character.  It  has  super-added  protection  by  University  decisions  creating a legal right-duty relationship between the staff  and the management.   When there is existence of  this  relationship,  mandamus  cannot  be  refused  to  the  aggrieved party.

xx xx xx

16.   There,  however,  the  prerogative  writ  of  mandamusmus (sic) confined only to public authorities to  compel performance of public duty.  The 'public authority'  for them means every body 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  Court  to  issue  writs  in  the  nature  of  prerogative  writs.  This is a striking departure from the English law.  Under  Article  226,  writs  can  be  issued  to  'any  person  or  authority'.  It can be issued “for the enforcement of any of  the fundamental rights and for any other purpose”.

xx xx xx

19.   The  term  “authority”  used  in  Article  226,  in  the  context, must receive a liberal meaning like the term in  Article 12.  Article 12 is relevant only for the purpose of  enforcement of fundamental rights under Art.32.  Article  226 confers power on the High Courts to issue writs for  enforcement  of  the  fundamental  rights  as  well  as  non- fundamental rights.  The words “Any person or authority”  used in Article 226 are, therefore, not to be confined only  to statutory authorities and instrumentalities of the State.

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They  may  cover  any  other  person  or  body  performing  public duty.  The form of the body concerned is not very  much relevant.  What is relevant is the nature of the duty  imposed on the body.  The duty must be judged in the  light of positive obligation owed by the person or authority  to the affected party.  No matter by what means the duty  is  imposed.   If  a  positive  obligation  exists  mandamus  cannot be denied.”

32) In  para  14,  the  Court  spelled  out  two  exceptions  to  the  writ  of  

mandamus,  viz.  (i)  if  the rights are purely  of  a private character,  no  

mandamus can issue; and (ii) if the management of the college is purely  

a private body “with no public duty”, mandamus will not lie.  The Court  

clarified that since the Trust in the said case was an aiding institution,  

because of this reason, it discharges public function, like Government  

institution, by way of imparting education to students, more particularly  

when rules and regulations of the affiliating University are applicable to  

such an institution, being an aided institution.  In such a situation, held  

the Court, the service conditions of academic staff were not purely  

of a private character as the staff had super-aided protection by  

University's decision creating a legal right and duty relationship  

between the staff and the management.  Further, the Court explained  

in para 19 that the term 'authority' used in Article 226, in the context,  

would receive a liberal meaning unlike the term in Article 12, inasmuch  

as  Article  12  was  relevant  only  for  the  purpose  of  enforcement  of  

fundamental rights under Article 31, whereas Article 226 confers power

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on  the  High  Courts  to  issue  writs  not  only  for  enforcement  of  

fundamental rights but also non-fundamental rights.  What is relevant is  

the dicta of the Court that the term 'authority' appearing in Article 226 of  

the Constitution would cover any other person or body performing public  

duty.  The guiding factor, therefore, is the nature of duty imposed on  

such a body, namely, public duty to make it exigible to Article 226.

33) In K. Krishnamacharyulu & Ors. v. Sri Venkateswara Hindu College  

of Engineering & Anr.6, this Court again emphasized that where there  

is  an  interest  created  by  the  Government  in  an  institution  to  impart  

education, which is a fundamental right of the citizens, the teachers who  

impart  education get  an element of  public interest  in performance of  

their  duties.   In  such a situation,  remedy provided under  Article 226  

would be available to the teachers. The aforesaid two cases pertain to  

educational  institutions  and  the  function  of  imparting  education  was  

treated as the performance of  public  duty,  that  too by those bodies  

where the aided institutions were discharging the said  functions like  

Government  institutions  and  the  interest  was  created  by  the  

Government in such institutions to impart education.

34) In G. Bassi Reddy v. International Crops Research Institute & Anr.7,  

the Court was concerned with the nature of function performed by a  

6 (1997) 3 SCC 571 7 (2003) 4 SCC 225

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research institute.  The Court was to examine if the function performed  

by  such  research  institute  would  be  public  function  or  public  duty.  

Answering the question in the negative in the said case, the Court made  

the following pertinent observations:

“28...Although,  it  is  not  easy  to  define  what  a  public  function or public duty is, it can reasonably be said that  such functions are similar to or closely related to those  performable by the State in its sovereign capacity.  The  primary  activity  of  ICRISAT is  to  conduct  research and  training programmes in the sphere of agriculture purely on  a voluntary basis.  A service voluntarily undertaken cannot  be said to be a public duty.  Besides ICRISAT has a role  which extends beyond the territorial  boundaries of India  and its activities are designed to benefit people from all  over  the  world.   While  the  Indian  public  may  be  the  beneficiary  of  the  activities  of  the  institute,  it  certainly  cannot be said that the ICRISAT owes a duty to the Indian  public to provide research and training facilities.”

Merely because the activity of the said research institute enures to  

the  benefit  of  the  Indian  public,  it  cannot  be  a  guiding  factor  to  

determine the character of the Institute and bring the same within the  

sweep of 'public function or public duty'.  The Court pointed out:

“28...In  Praga  Tools  Corporation  v.  C.V.  Imanual,  AIR  1960 (sic -1969) SC 1306, the Court construed Art. 226 to  hold that the High Court could issue a writ of mandamus”  to secure the performance of the duty or statutory duty” in  the performance of which the one who applies for it has a  sufficient legal interest”.  The Court also held that:

“...an  application  for  mandamus  will  not  lie  for  an  order  of  reinstatement  to  an  office  which  is  essentially  of  a  private  character  nor  can  such an  application be maintained to secure performance of  obligations owed by a company towards its workmen  or to resolve any private dispute. (See Sohan Lal v.

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Union of India, 1957 SCR 738).”

35) Somewhat more pointed and lucid discussion can be found in the case  

of  Federal Bank Ltd.  v.  Sagar Thomas & Ors.8, inasmuch as in that  

case the Court culled out the categories of body/ persons who would be  

amenable to writ jurisdiction of the High Court.  This can be found in  

para 18 of the said judgment, specifying eight categories, as follows:

“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 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.”

36) In Binny Ltd. & Anr.  v.  V. Sadasivan & Ors.9, the Court clarified that  

though writ can be issued against any private body or person, the scope  

of mandamus is limited to enforcement of public duty.  It is the nature of  

duty performed by such person/body which is the determinative factor  

as the Court is to enforce the said duty and the identity of authority  

against whom the right is sought is not relevant.  Such duty, the Court  

clarified, can either be statutory or even otherwise, but, there has to be  

public law element in the action of that body.

8 (2003) 10 SCC 733 9 (2005) 6 SCC 657

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37) Reading of the categorization given in Federal Bank Ltd. (supra), one  

can find that three types of private bodies can still be amenable to writ  

jurisdiction under Article 226 of the Constitution, which are mentioned at  

serial numbers (vi) to (viii) in para 18 of the judgment extracted above.

38) What  follows  from  a  minute  and  careful  reading  of  the  aforesaid  

judgments of this Court is that if a person or authority is a 'State' within  

the meaning of Article 12 of the Constitution, admittedly a writ petition  

under Article 226 would lie against such a person or body.  However, we  

may add that even in such cases writ would not lie to enforce private  

law rights.  There are catena of judgments on this aspect and it is not  

necessary to refer to those judgments as that is the basic principle of  

judicial  review of  an action under  the administrative law.   Reason is  

obvious.  Private law is that part of a legal system which is a part of  

Common Law that involves relationships between individuals, such as  

law  of  contract  or  torts.   Therefore,  even  if  writ  petition  would  be  

maintainable against an authority, which is 'State' under Article 12 of the  

Constitution, before issuing any writ, particularly writ of mandamus, the  

Court has to satisfy that action of such an authority, which is challenged,  

is in the domain of public law as distinguished from private law.

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39) Within a couple of years of the framing of the Constitution, this Court  

remarked in  Election Commission of India  v.  Saka Venkata Subba  

Rao10 that administrative law in India has been shaped in the English  

mould.   Power  to  issue writ  or  any order  of  direction for  'any other  

purpose' has been held to be included in Article 226 of the Constitution  

'with a view apparently to place all the High Courts in this country in  

somewhat  the  same  position  as  the  Court  of  the  King's  Bench  in  

England.  It  is for this reason ordinary 'private law remedies' are not  

enforceable through extraordinary writ jurisdiction, even though brought  

against public authorities (See – Administrative Law; 8th Edition; H.W.R.  

Wade & C.F. Forsyth, page 656).  In a number of decisions, this Court  

ha  held  that  contractual  and  commercial  obligations are  enforceable  

only by ordinary action and not by judicial review.

40) On the other hand, even if a person or authority does not come within  

the sweep of Article 12 of the Constitution, but is performing public duty,  

writ petition can lie and writ of mandamus or appropriate writ can be  

issued.   However,  as  noted  in  Federal  Bank  Ltd.  (supra),  such  a  

private  body  should  either  run  substantially  on  State  funding  or  

discharge public  duty/positive  obligation of  public  nature  or  is  under  

liability  to  discharge  any  function  under  any  statute,  to  compel  it  to  

perform such a statutory function. 10 AIR 1953 SC 210

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41) In the present case, since ICID is not funded by the Government nor it  

is discharging any function under any statute, the only question is as to  

whether  it  is  discharging  public  duty  or  positive  obligation  of  public  

nature.  It is clear from the reading of the impugned judgment, the High  

Court was fully conscious of the principles laid down in the aforesaid  

judgments,  cognizance  whereof  is  duly  taken  by  the  High  Court.  

Applying the test in the case at hand, namely that of ICID, the High  

Court opined that it was not discharging any public function or public  

duty, which would make it amenable to the writ jurisdiction of the High  

Court under Article 226.  The discussion of the High Court is contained  

in paras 33 to 35 and we reproduce the same for the purpose of our  

appreciation:

“33.  On a perusal of the preamble and the objects, it is  clear as crystal that the respondent has been established  as  a  Scientific,  Technical,  Professional  and  Voluntary  Non-Governmental  International  Organization,  dedicated  to enhance the world-wide supply of food and fibre for all  people by improving water and land management and the  productivity  of  irrigated  and  drained  lands  so  that  the  appropriate management of water,  environment and the  application  of  irrigation,  drainage  and  flood  control  techniques.   It  is  required  to  consider  certain  kind  of  objects  which  are  basically  a  facilitation  process.   It  cannot be said that the functions that are carried out by  ICID  are  anyway  similar  to  or  closely  related  to  those  performable by the State in its sovereign capacity.  It is  fundamentally in the realm of collection of data, research,  holding of seminars and organizing studies, promotion of  the  development  and  systematic  management  of  sustained irrigation and drainage systems, publication of  newsletter, pamphlets and bulletins and its role extends

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beyond  the  territorial  boundaries  of  India.   The  memberships  extend  to  participating  countries  and  sometimes, as by-law would reveal, ICID encourages the  participation  of  interested  national  and  non0member  countries on certain conditions.

34.  As has been held in the case of  Federal Bank Ltd.   (supra),  solely  because  a  private  company  carries  on  banking  business,  it  cannot  be  said  that  it  would  be  amenable to  the writ  jurisdiction.   The Apex  Court  has  opined that the provisions of Banking Regulation Act and  other statutes have the regulatory measure to play.  The  activities  undertaken  by  the  respondent-society,  a  non- governmental  organization,  do  not  actually  partake  the  nature of public duty or state actions.   There is absence  of public element as has been stated in V.R. Rudani and  others (supra) and Sri Venkateswara Hindu College of   Engineering  and  another  (supra).   It  also  does  not  discharge duties  having  a  positive  application  of  public  nature.   It  carries  on voluntary  activities  which many a  non-governmental  organizations  perform.   The  said  activities cannot be stated to be remotely connected with  the activities of the State.  On a scrutiny of the constitution  and  by-laws,  it  is  difficult  to  hold  that  the  respondent- society has obligation to discharge certain activities which  are statutory or of public character.  The concept of public  duty cannot be construed in a vacuum.  A private society,  in certain cases, may be amenable to the writ jurisdiction  if the writ court is satisfied that it is necessary to compel  such  society  or  association  to  enforce  any  statutory  obligation  or  such  obligations  of  public  nature  casting  positive public obligation upon it.

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

42) We are in agreement with the aforesaid analysis by the High Court and  

it  answers  all  the  arguments  raised  by  the  learned  senior  counsel  

appearing for the appellant.  The learned counsel argued that once the

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society is registered in India it cannot be treated as international body.  

This argument is hardly of any relevance in determining the character of  

ICID.  The focus has to be on the function discharged by ICID, namely,  

whether it is discharging any public duties.  Though much mileage was  

sought to be drawn from the function incorporated in the MOA of ICID,  

namely,  to  encourage progress  in  design,  construction,  maintenance  

and operation of large and small irrigation works and canals etc., that by  

itself would not make it a public duty cast on ICID.  We cannot lose sight  

of  the  fact  that  ICID is  a  private  body  which  has  no  State  funding.  

Further, no liability under any statute is cast upon ICID to discharge the  

aforesaid function.  The High Court is right in its observation that even  

when object of ICID is to promote the development and application of  

certain aspects, the same are voluntarily undertaken and there is no  

obligation to discharge certain activities which are statutory or of public  

character.

43) There  is  yet  another  very  significant  aspect  which  needs  to  be  

highlighted at this juncture.  Even if a body performing public duty is  

amenable to writ jurisdiction, all its decisions are not subject to judicial  

review, as already pointed out above.  Only those decisions which have  

public element therein can be judicially reviewed under writ jurisdiction.  

In  The Praga Tools Corporation  v.  Shri C.A. Imanual & Ors.11,  as  11 (1969) 1 SCC 585

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already discussed above, this Court held that the action challenged did  

not have public element and writ of mandamus could not be issued as  

the  action was essentially  of  a  private  character.   That  was  a  case  

where the concerned employee was seeking reinstatement to an office.

44) We have also pointed out  above that  in  Sata Venkata Subba Rao  

(supra)  this  Court  had observed that  administrative  law in  India  has  

been  shaped  on  the  lines  of  English  law.   There  are  catena  of  

judgments in English courts taking same view, namely, contractual and  

commercial obligations are enforceable only by ordinary action and not  

by  judicial  review.   In  Queen  (on  the  application  of  Hopley)  v  .  

Liverpool Health Authority & Ors. (unreported) (30 July 2002), Justice  

Pithford helpfully  set  out  three things that  had to be identified when  

considering whether a public body with statutory powers was exercising  

a public function amenable to judicial review or a private function.  They  

are: (i) whether the defendant was a public body exercising statutory  

powers;  (ii)  whether  the function being performed in  the exercise of  

those  powers  was  a  public  or  a  private  one;  and  (iii)  whether  the  

defendant  was performing a public  duty owed to the claimant in the  

particular circumstances under consideration.

45) Even in Anadi Mukta Sadguru (supra), which took a revolutionary turn  

and departure from the earlier  views, this Court  held that  'any other

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authority' mentioned in Article 226 is not confined to statutory authorities  

or  instrumentalities  of  the  State  defined  under  Article  12  of  the  

Constitution, it also emphasized that if the rights are purely of a private  

character, no mandamus could issue.

46) It is trite that contract of personal service cannot be enforced. There are  

three exceptions to this rule, namely: (i) when the employee is a public  

servant working under the Union of India or State; (ii)  when such an  

employee is employed by an authority/ body which is a State within the  

meaning of Article 12 of the Constitution of India; and (ii) when such an  

employee  is  'workmen'  within  the  meaning  of  Section  2(s)  of  the  

Industrial  Disputes  Act,  1947  and  raises  a  dispute  regarding  his  

termination by invoking the machinery under the said Act.  In the first  

two cases, the employment ceases to have private law character and  

'status'  to such an employment is attached.  In the third category of  

cases, it is the Industrial Disputes Act which confers jurisdiction on the  

labour court/industrial tribunal to grant reinstatement in case termination  

is found to be illegal.

47) In the present case, though we have held that ICID is not discharging  

any public  duty,  even otherwise,  it  is  clear  that  the impugned action  

does  not  involve  public  law element  and  no 'public  law rights'  have  

accrued in  favour  of  the appellant  which are infringed.  The service

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conditions of the appellant are not governed in the same manner as  

was the position in Anadi Mukta Sadguru (supra).

48) We, thus, do not find any infirmity in a well considered judgment of the  

High Court.  The appeal,  being devoid of any merits,  is, accordingly,  

dismissed leaving the parties to bear their own costs.

.............................................J. (J. CHELAMESWAR)

.............................................J. (A.K. SIKRI)

NEW DELHI; DECEMBER 18, 2014.