MR. R.S. MADIREDDY AND ANR. ETC. versus UNION OF INDIA & ORS. ETC.
[2024] 6 S.C.R. 934, Supreme Court of India, 2024
Outcome: Dismissed (Dismissed)
Segment: Facts
* Author
[2024] 6 S.C.R. 934 : 2024 INSC 425
Mr. R.S. Madireddy and Anr. etc. 
v. 
Union of India & Ors. etc.
(Civil Appeal No(s). 6473-6476 of 2024)
16 May 2024
[B.R. Gavai and Sandeep Mehta,* JJ.]
Issue for Consideration
(i) Whether respondent No.3(AIL) after having been taken over 
by a private corporate entity could have been subjected to writ 
jurisdiction of the High Court; (ii) Whether the appellants herein 
could have been non-suited on account of the fact that during 
pendency of their writ petitions, the nature of the employer 
changed from a Government entity to a private entity; (iii) Whether 
the delay in disposal of the writ petition could be treated a valid 
ground to sustain the claim of the appellants even against the 
private entity.
Headnotes
Constitution of India – Art.226 – Whether respondent No.3(AIL) 
after having been taken over by a private corporate entity could 
have been subjected to writ jurisdiction of the High Court:
Held: In the instant case, there is no dispute that the Government 
of India having transferred its 100% share to a private limited 
company-T, ceased to have any administrative control or deep 
pervasive control over the private entity and hence, the company 
after its disinvestment could not have been treated to be a State 
anymore after having taken over by the private company – Thus, 
unquestionably, the respondent No.3(AIL) after its disinvestment 
ceased to be a State or its instrumentality within the meaning 
of Article 12
of the Constitution of India – Once the respondent 
No.3(AIL) ceased to be covered by the definition of State within 
the meaning of Article 12 of the Constitution of India, it could not 
have been subjected to writ jurisdiction under Article 226 of the 
Constitution of India – The respondent No.3(AIL), the erstwhile 
Government run airline having been taken over by the private 
company-T, unquestionably, is not performing any public duty 
inasmuch as it has taken over the Government company Air 
India Limited for the purpose of commercial operations, plain and
[2024] 6 S.C.R. 
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Mr. R.S. Madireddy and Anr. etc. v. Union of India & Ors. etc.
simple, and thus no writ petition is maintainable against respondent 
No.3(AIL). [Paras 32, 33 and 37]
Constitution of India – Art.226 – Whether the appellants herein 
could have been non-suited on account of the fact that during 
pendency of their writ petitions, the nature of the employer 
changed from a Government entity to a private entity:
Held: The respondent No.3(AIL)-employer was a government entity 
on the date of filing of the writ petitions, which came to be decided 
after a significant delay by which time, the company had been 
disinvested and taken over by a private player – Since, respondent 
No.3 employer had been disinvested and had assumed the character 
of a private entity not performing any public function, the High 
Court could not have exercised the extra ordinary writ jurisdiction 
to issue a writ to such private entity – The Division Bench of the 
High Court has taken care to protect the rights of the appellants to 
seek remedy and thus, it cannot be said that the appellants have 
been non-suited in the case – It is only that the appellants would 
have to approach another forum for seeking their remedy – Thus, 
the question is decided against the appellants. [Para 38]
Constitution of India – Art.226 – Whether the delay in disposal 
of the writ petition could be treated a valid ground to sustain 
the claim of the appellants even against the private entity:
Held: The
delay in disposal of the writ petitions could not have 
been a ground to continue with and maintain the writ petitions – 
Because the forum that is the High Court where the writ petitions 
were instituted could not have issued a writ to the private respondent 
which had changed hands in the intervening period – Hence, the 
question is also decided against the appellants. [Para 39]
Case Law Cited
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology 
[2002] 3 SCR 100 : (2002) 5 SCC 111; Andi Mukta Sadguru 
Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak 
Trust and Ors. v. V.R. Rudani & Ors. [1989] 2 SCR 697 : (1989) 
2 SCC 691; Federal Bank Ltd. v. Sagar Thomas [2003] Supp. 4 
SCR 121 : (2003) 10 SCC 733 – relied on.
Kalpana Yogesh Dhagat through Legal Heirs v. Reliance Industries 
Ltd., 2016 SCC OnLine Guj 10186; Asulal Loya v. Union of 
India and Ors., ILR (2009) I Delhi 450; Tarun Kumar Banerjee v.
936
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Bharat Aluminium Co. Ltd. and Another, 2008 SCC OnLine Bom 
1899 – approved.
Pasupuleti Venkateswarlu v. Motor & General Traders [1975] 3 
SCR 958 : (1975) 1 SCC 770; Beg Raj Singh v. State of U.P. and 
Ors. [2002] Supp. 5 SCR 530 : (2003) 1 SCC 726; Rajesh D. 
Darbar and Others v. Narasingrao Krishnaji Kulkarni and Others 
[2003] Supp. 2 SCR 273 : (2003) 7 SCC 219; Kaushal Kishor 
v. State of Uttar Pradesh and Ors. [2023] 8 SCR 581 : (2023) 4 
SCC 1; Binny Ltd. and Anr. v. V. Sadasivan and Ors. [2005] Supp. 
2 SCR 421 : (2005) 6 SCC 657 – referred to.
Mahant Pal Singh v. Union of India and Others, 2009 SCC OnLine 
Bom 2554; Padmavathi Subramaniyan and Others v. Ministry of 
Civil Aviation Government of India rep by its Secretary and Others, 
2022 SCC OnLine Kar 1706; Ashok Kumar Gupta & Ors. v. Union 
of India & Ors. (2007) SCC OnLine Cal 264 – referred to.
Regina (Beer(trading as Hammer Trout Farm)) v. Hampshire 
Farmers’ Markets & Ltd. [2004] 1 WLR 233 – referred to.
List of Acts
Constitution of India.
List of Keywords
Public limited company taken over by Private limited company; 
Company after its disinvestment; Article 12 of the Constitution 
of India; Instrumentality within the meaning of Article 12 of the 
Constitution of India after disinvestment of public limited company; 
Writ jurisdiction under Article 226 of the Constitution of India; 
Extra ordinary writ jurisdiction to issue a writ; Non-suited; Delay 
in
disposal of writ petition. 
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 6473-6476 of 
2024
From the Judgment and Order dated 20.09.2022 of the High Court of 
Judicature at Bombay in WP No.1770 of 2011, WP No.1536 of 2013 
and WP Nos. 123 and 844 of 2014
With
Civil Appeal Nos. 6477 and 6478 of 2024
[2024] 6 S.C.R. 
937
Mr. R.S. Madireddy and Anr. etc. v. Union of India & Ors. etc.
Appearances for Parties
Sanjay Singhavi, Sr. Adv., Sandeep Sudhakar Deshmukh, Ms. Rohini 
Thyagarajan, Ms. Shanvi Punamiya, Nishant Sharma, Akshay Arora, 
Swapnil Anil Walde, Ms. Nupur Kumar, Karan Nagrath, Ambuj Tiwari, 
R. Gopalakrishnan, R Sudhinder, Dattatray Vyas, Shashank Dixit, 
Advs. for the Appellants.
Ms. Aishwarya Bhati, ASG, Dr. Abhishek Manu Singhvi, S. Niranjan 
Reddy, R Balasuramanian, Sr. Advs., Ms. B.L.N. Shivani, Ms. Manisha 
Chava, Shashwat Parihar, Amrish Kumar, Avishkar Singhvi, Aishwarya 
Singhvi, Ms. Rukmini Bobde, Amit Kumar Mishra, Azeem Samuel, 
Ms. Mitakshara Goyal, Kunal Chatterji, L Nidhiram Sharma, Kaustubh 
Seth, Akhil Kumar Kulshrestha, Ms. Akhila, Shivam Singhania, 
Ms. Yashika Nagpal, Vivek Kumar, Naved Ahmed, Amlan Kumar, 
Santosh Kumar Pandey, Santosh Kumar Vishwakarma, Debashish 
Mishra, Mohit Singh, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Mehta, J.
1.	
Leave granted.
2.	
The present appeals are filed challenging the common impugned 
judgment and order dated 20th September, 2022 passed by the 
Division Bench of the High Court of Bombay thereby dismissing 
four writ petitions instituted by the appellants being the former 
employees of respondent No.3 i.e. Air India Limited (hereinafter 
referred to as ‘AIL’) as members of its cabin crew force. Appellants 
came to be employed in AIL in the late 1980s and all of them retired
between 2016 and 2018.
3.	
Writ Petition Nos. 123 of 20141 and 844 of 20142 were filed for 
alleged stagnation in pay and non-promotion of the employees. Writ 
Petition No. 844 of 2014 additionally raised issues of anomalies 
in the fixation of pay arising out of and for implementation of the 
1	
Filed on 30th August, 2013
2	
Filed on 09th October, 2014
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report of the Justice Dharmadhikari Committee3. Writ Petition Nos. 
1770 of 20114 and 1536 of 20135, pertained to the delay in payment 
of wage revision arrears and the withdrawal of eight out of the 
seventeen allowances already paid to the employees retrospectively. 
In each of the writ petitions, violation of Articles 14, 16, and 21 of 
the Constitution of India, 1950, was pleaded. The Division Bench 
of Bombay High Court, vide common judgment and order dated 
20th September, 2022 disposed of the above writ petitions denying 
relief as claimed therein on the ground of non-maintainability of 
the writ petitions owing to the intervening event of privatisation of 
respondent No. 3(AIL). Nevertheless, liberty was granted to the 
employee petitioners to seek their remedies in accordance with law. 
Brief Facts: -
4.	
Air India was a statutory body constituted under the Air Corporations Act, 
1953. With the repeal of the Act of 1953 by the Air Corporations(Transfer 
of Undertakings) Act, 1994, Air India merged with Indian Airlines 
and upon incorporation, respondent No. 3(AIL) became a wholly 
Government owned company and, thus, came under the category of 
‘other authorities’ within the meaning of Article 12 of the Constitution 
of India. This status of Air India continued to subsist on the date 
when the subject batch of writ petitions (supra) under Article 226 of 
the Constitution of India were filed before the High Court
invoking 
writ jurisdiction, against respondent No.3(AIL). 
5.	
However, on 08th October, 2021, the Government of India announced 
that it had accepted the bid of Talace India Pvt Ltd. to purchase its 
100% shares in respondent No. 3 (AIL). Subsequently, on 27th January, 
2022 pursuant to the share purchase agreement signed with Talace 
India Pvt. Ltd., 100% equity shares of the Government of India in 
respondent No. 3(AIL) were purchased by the said private company 
and respondent No. 3(AIL) was privatised and disinvested. Therefore, 
the writ petitions were maintainable on the date of institution but the 
question that arose before the High Court was whether they continued 
to be maintainable as on the date the same were finally heard.
3	
Constituted by the respondent No.1 i.e. Union of India(through its Ministry of Civil Aviation) to harmonize 
the differential service conditions of AIL and Indian Airlines Ltd, which came to be merged.
4	
Filed on 14th June, 2011
5	
Filed on 19th March, 2013
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Mr. R.S. Madireddy and Anr. etc. v. Union of India & Ors. etc.
6.	
Learned Judges of the Division Bench of the Bombay High Court, 
while placing reliance upon the decisions of Tarun Kumar Banerjee 
v. Bharat Aluminium Co. Ltd. and Another 6; Mahant Pal Singh 
v. Union of India and Others7; Padmavathi Subramaniyan and 
Others v. Ministry of Civil Aviation Government of India rep by 
its Secretary and Others8; and few more decisions of the Delhi High 
Court and Gujarat High Court concluded that with the privatisation 
of respondent No. 3(AIL), jurisdiction of the High Court under Article 
226 of the Constitution of India to issue a writ to respondent No. 
3(AIL), particularly in its role as an employer, did not subsist and 
disposed of the writ petitions vide common impugned judgment dated 
20th September 2022, which is assailed in the present appeals by 
special leave. 
Submissions and contentions on behalf of the appellants: -
7.	
Shri Sanjay Singhvi, learned senior counsel appearing on behalf 
of the appellants submitted that the right to seek remedy stands 
crystallised on the date of institution of proceedings and though 
subsequent events can be considered, it is a well settled tenet of 
law that such subsequent events can be looked at only to advance 
equity rather than to defeat it. Reliance in this regard was placed 
by learned senior counsel upon Pasupuleti Venkateswarlu v. 
Motor & General Traders9; Beg Raj Singh v. State of U.P. 
and Ors.10.
He urged that different view is permissible only in 
exceptional circumstances and in no event can a party be divested 
of its substantive rights on account of such subsequent event 
as laid down in Rajesh D. Darbar and Others v. Narasingrao 
Krishnaji Kulkarni and Others11. The relevant extract of Rajesh 
D. Darbar (supra) as relied upon by the learned senior counsel 
for the appellants is extracted hereinbelow: -
“4. The impact of subsequent happenings may now be 
spelt out. First, its bearing on the right of action, second, 
on the nature of the relief and third, on its importance to 
6	
2008 SCC OnLine Bom 1899
7	
2009 SCC OnLine Bom 2554
8	
2022 SCC OnLine Kar 1706
9	
[1975] 3 SCR 958 : (1975) 1 SCC 770
10	
[2002] Supp. 5 SCR 530 : (2003) 1 SCC 726
11	
[2003] Supp. 2 SCR 273 : (2003) 7 SCC 219
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create or destroy substantive rights. Where the nature of 
the relief, as originally sought, has become obsolete or 
unserviceable or a new form of relief will be more efficacious 
on account of developments subsequent to the suit or 
even during the appellate stage, it is but fair that the relief 
is moulded, varied or reshaped in the light of updated 
facts. Patterson v. State of Alabama [294 US 600 : 79 L 
Ed 1082 (1934)] (US at p. 607) illustrates this position. It 
is important that the party claiming the relief or change of 
relief must have the same right from which either the first 
or the modified remedy may flow. Subsequent events in 
the course of the case cannot be constitutive of substantive 
rights enforceable in that very litigation except in a narrow 
category (later spelt out) but may influence the equitable 
jurisdiction to mould reliefs. Conversely, where rights have 
already vested in a party, they cannot be nullified or negated 
by subsequent events save where there is a change in the 
law and it is made applicable at any stage. Lachmeshwar 
Prasad Shukul v. Keshwar Lal Chaudhuri [1940 FCR 84 : 
AIR 1941 FC 5] falls in this category. Courts of justice 
may, when the compelling equities of a case oblige them, 
shape reliefs — cannot deny rights — to make them justly 
relevant in the updated circumstances. Where the relief is 
discretionary, courts may exercise this jurisdiction to avoid 
injustice.
Likewise, where the right to the remedy depends, 
under the statute itself, on the presence or absence of 
certain basic facts at the time the relief is to be ultimately 
granted, the court, even in appeal, can take note of such 
supervening facts with fundamental impact. This Court’s 
judgment in Pasupuleti Venkateswarlu v. Motor & General 
Traders [(1975) 1 SCC 770 : AIR 1975 SC 1409] read in 
its statutory setting, falls in this category. Where a cause 
of action is deficient but later events have made up the 
deficiency, the court may, in order to avoid multiplicity of 
litigation, permit amendment and continue the proceeding, 
provided no prejudice is caused to the other side. All these 
are done only in exceptional situations and just cannot 
be done if the statute, on which the legal proceeding is 
based, inhibits, by its scheme or otherwise, such change 
in the cause of action or relief. The primary concern of the
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Mr. R.S. Madireddy and Anr. etc. v. Union of India & Ors. etc.
court is to implement the justice of the legislation. Rights 
vested by virtue of a statute cannot be divested by this 
equitable doctrine (see V.P.R.V. Chockalingam Chetty v. 
Seethai Ache [AIR 1927 PC 252 : 26 All LJ 371] ).” 
8.	
Reliance was also placed by the learned senior counsel on the 
judgment of Ashok Kumar Gupta & Ors. v. Union of India & Ors.12, 
wherein the Division Bench of Calcutta High Court, after adverting to 
the extant principles concerning the maintainability of writ proceedings 
as on the date of the institution, held that an employer which had 
been privatised during the pendency of a writ appeal filed against 
the order rejecting the writ petition would continue to be amenable 
to writ jurisdiction under Article 226 of the Constitution of India. 
The relevant portion of Ashok Kumar Gupta (supra) relied upon is 
extracted hereinbelow: -
“32. It is nobody’s case that the writ petition was not 
maintainable when it was filed. The cause of action for 
filing the writ petition crystallized at a point of time when 
the respondent authority was, admittedly, subject to the writ 
jurisdiction. The said cause of action confers a vested right 
to the writ petitioners to have their grievances adjudicated 
in a writ proceeding. No one can contend that the writ 
petitioners have brought the present situation by their 
conduct. The change of circumstances is not attributable 
to
the petitioners.
33. For the aforesaid reasons, we are of the opinion that 
the instant appeal is very much maintainable, and the 
preliminary objection raised on behalf of the respondent 
company cannot be sustained in the eye of law. Therefore, 
the said preliminary objection regarding maintainability 
of this appeal as raised by the respondent company is 
rejected.”
9.	
Learned senior counsel further contended that the scope of issuing a 
writ, order, or direction under Article 226 of the Constitution of India 
is much broader than the high prerogative writs issued by the British 
Courts and this position has been recognised by this Court in the case 
of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna 
12	
(2007) SCC OnLine Cal 264
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Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani & Ors.13, 
and following the said decision, Courts in India have consistently 
issued writs even to private persons performing public duties and this 
position has further been reiterated by the recent judgment of this 
Court in the case of Kaushal Kishor vs. State of Uttar Pradesh 
and Ors.14. The relevant portions of Andi Mukta (supra) as relied 
upon by the learned senior counsel are extracted hereinbelow: -
“16. The law relating to mandamus has made the most 
spectacular advance. It may be recalled that the remedy 
by prerogative writs in England started with very limited 
scope and suffered from many procedural disadvantages. 
To overcome the difficulties, Lord Gardiner (the Lord 
Chancellor) in pursuance of Section 3(1)(e) of the Law 
Commission Act, 1965, requested the Law Commission 
“to review the existing remedies for the judicial control 
of administrative acts and omissions with a view to 
evolving a simpler and more effective procedure”. The 
Law Commission made their report in March 1976 (Law 
Commission Report No. 73). It was implemented by Rules 
of Court (Order 53) in 1977 and given statutory force in 
1981 by Section 31 of the Supreme Court Act, 1981. It 
combined all the former remedies into one proceeding 
called Judicial Review. Lord Denning explains the scope 
of this “judicial review”:
“At one stroke the courts could grant whatever relief was
appropriate. Not only certiorari and mandamus, but also 
declaration and injunction. Even damages. The procedure 
was much more simple and expeditious. Just a summons 
instead of a writ. No formal pleadings. The evidence 
was given by affidavit. As a rule no cross-examination, 
no discovery, and so forth. But there were important 
safeguards. In particular, in order to qualify, the applicant 
had to get the leave of a judge.
The statute is phrased in flexible terms. It gives scope 
for development. It uses the words “having regard to”. 
13	
[1989] 2 SCR 697 : (1989) 2 SCC 691
14	
[2023] 8 SCR 581 : (2023) 4 SCC 1
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Mr. R.S. Madireddy and Anr. etc. v. Union of India & Ors. etc.
Those words are very indefinite. The result is that the 
courts are not bound hand and foot by the previous law. 
They are to “have regard to” it. So the previous law as 
to who are — and who are not — public authorities, is 
not absolutely binding. Nor is the previous law as to the 
matters in respect of which relief may be granted. This 
means that the judges can develop the public law as they 
think best. That they have done and are doing.” [See The 
Closing Chapter by Rt. Hon. Lord Denning, p. 122]
17. There, however, the prerogative writ of mandamus is 
confined only to public authorities to compel performance 
of public duty. The “public authority” for them means 
everybody which is created by statute — and whose 
powers and duties are defined by statute. So government 
departments, local authorities, police authorities, and 
statutory undertakings and corporations, are all “public 
authorities”. But there is no such limitation for our High 
Courts to issue the writ “in the nature of mandamus”. 
Article 226 confers wide powers on the High Courts to 
issue writs in the nature of prerogative writs. This is a 
striking departure from the English law. Under Article 226, 
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.”
10.	 He further submitted that equity should prevail over injustice and
since 
the appellants have diligently pursued their case in the High Court for 
more than a decade, subsequent events can be accounted for only 
to support and not undermine equity. It was further contended that a 
private body that promises the sovereign to fulfill its obligations and 
liabilities as a public employer towards its employees under Articles 
14 & 16, then performs a public duty to the extent of discharging 
such liabilities. It is not the form, but the nature of the duty imposed 
that is relevant for adjudging whether a writ petition would lie against 
a private body. Reliance in support of this contention was placed 
upon the following extracts from the decision of this Court in Binny 
Ltd. and Anr. v. V. Sadasivan and Ors.15:-
15	
[2005] Supp. 2 SCR 421 : (2005) 6 SCC 657
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“23. The counsel for the respondent in Civil Appeal No. 
1976 of 1998 and for the appellant in the civil appeal arising 
out of SLP (Civil) No. 6016 of 2002 strongly contended 
that irrespective of the nature of the body, the writ petition 
under Article 226 is maintainable provided such body is 
discharging a public function or statutory function and that 
the decision itself has the flavour of public law element and 
they relied on the decision of this Court in Shri Anadi Mukta 
Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti 
Mahotsav Smarak Trust v. V.R. Rudani [(1989) 2 SCC 691]. 
In this case, the appellant was a Trust running a science 
college affiliated to the Gujarat University under the Gujarat 
University Act, 1949. The teachers working in that college 
were paid in the pay scales recommended by the University 
Grants Commission and the college was an aided institution. 
There was some dispute between the University Teachers 
Association and the University regarding the fixation of their 
pay scales. Ultimately, the Chancellor passed an award 
and this award was accepted by the State Government as 
well as the University and the University directed to pay 
the teachers as per the award. The appellants refused 
to implement the award and the respondents filed a writ 
petition seeking a writ of mandamus and in the writ petition 
the appellants contended that the college managed by the 
Trust was not an
“authority” coming within the purview of 
Article 12 of the Constitution and therefore the writ petition 
was not maintainable. This plea was rejected and this 
Court held that the writ of mandamus would lie against a 
private individual and the words “any person or authority” 
used in Article 226 are not to be confined only to statutory 
authorities and instrumentalities of the State and 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.” 
11.	 Learned senior counsel further contended that when a private 
employer steps into the shoes of a public employer i.e. to perform the
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Mr. R.S. Madireddy and Anr. etc. v. Union of India & Ors. etc.
same functions as had previously been performed to the same end 
and substantially in the same manner, then its actions are amenable 
to judicial review. Reliance in support of this contention was placed 
upon the decision of the United Kingdom Court of Appeal in Regina 
(Beer(trading as Hammer Trout Farm)) v. Hampshire Farmers’ 
Markets & Ltd.16. 
12.	 It was further contended that the writ petitions came to be instituted 
on behalf of the appellants herein way back in the year 2011-2013 
and at that point of time unquestionably the employer, i.e. respondent 
No. 3(AIL) was a ‘State’ within the ambit and purview of Article 12 of 
the Constitution of India. The writ petitions were filed with genuine 
and bona fide service-related issues of the appellant employees 
based on substantive allegations of infringement of fundamental 
rights guaranteed under Article 14 and Article 16 of the Constitution of 
India. However, the writ petitions could not be taken up and decided 
for over a period of almost 10 years and thus, the appellants cannot 
be non-suited for the non-disposal of their bona fide lis in a timely 
manner. He thus urged that appellants herein are entitled to the 
relief, as claimed for in the writ petitions because the employer i.e. 
respondent No. 3(AIL), undisputedly was amenable to writ jurisdiction 
at the time the writ petitions were instituted and that it continues to
discharge public duties even after privatisation.
13.	 On these grounds, learned senior counsel for the appellants implored 
the Court to accept the appeals; set aside the impugned judgment 
and remand the writ petitions to the High Court for adjudication on 
merits. 
Submission and contentions on behalf of respondent No. 3-AIL: -
14.	 Shri Abhishek Manu Singhvi, learned senior counsel appearing on 
behalf of respondent No. 3(AIL) contended that a bare reading of 
Article 226 of the Constitution of India, would clearly show that the 
‘test of jurisdiction’ is to be invoked/applied at the time of issuance of 
the writ by the High Court. It is at the stage of issuance of a writ that 
the High Court actually exercises its writ jurisdiction, and therefore, it 
is at that point of time, the High Court ought to be satisfied that the 
person to whom it is issuing a writ is amenable to the extraordinary 
writ jurisdiction. 
16	
[2004] 1 WLR 233
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15.	 Learned senior counsel placed reliance upon the decision of the 
High Court of Gujarat in the case of Kalpana Yogesh Dhagat 
through Legal Heirs v. Reliance Industries Ltd.17, wherein a writ 
petition had been filed against Indian Petrochemical Corporation 
Ltd.(“IPCL”) in 2002 which came to be decided in the year 2016. 
In the intervening period, the IPCL was privatized and taken over 
by Reliance Industries Limited(RIL) in 2007. The pertinent issue 
that cropped up for consideration was whether the writ petition filed 
against IPCL was maintainable even after its privatization. Learned 
Single Judge18 of the Gujarat High Court held that the writ petition 
was not maintainable. The relevant portion of Kalpana Yogesh 
Dhagat (supra) as relied upon is extracted hereinbelow:-
“53. In the case in hand, before the writ application 
could be taken up for final hearing, the status of I.P.C.L. 
changed. The I.P.C.L. once a public sector enterprise is 
no longer in existence, the same has been taken over by 
the Reliance Industries Limited. At no point of time, the 
legality and validity of the amalgamation of the I.P.C.L. with 
the Reliance Industries Limited arose before any Court. 
In such circumstances, I find it extremely difficult to hold 
that this writ application is maintainable and that too by 
applying the provisions of Order 22 Rule 10 of the Code 
of Civil Procedure. Ultimately, the whole issue boils down 
as to
how a writ can be issued against a private entity.”
16.	 Learned senior counsel further placed reliance upon the decision 
of the High Court of Delhi in Asulal Loya vs. Union of India and 
Ors.19, wherein learned Single Judge20 arrived at the same conclusion, 
while dealing with a writ petition filed against the Bharat Aluminium 
Company Limited(BALCO) in the year 1991 and decided in 2008 i.e., 
post-privatization of BALCO in 2001. The relevant portions from the 
said judgment as relied upon are extracted hereinbelow: -
“3. It is fairly well settled that a writ petition is not 
maintainable against a private limited company or a public 
limited company in which the State does not exercise all 
17	
2016 SCC OnLine Guj 10186
18	
HMJ J.B. Pardiwala (as his lordship then was)
19	
ILR (2009) I Delhi 450
20	
HMJ Sanjeev Khanna (as his lordship then was)
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Mr. R.S. Madireddy and Anr. etc. v. Union of India & Ors. etc.
pervasive control. In Binny Limited v. V. Sadasivan, reported 
in (2005) 6 SCC 657, the Supreme Court has held that a 
writ petition under Article 226 of the Constitution is normally 
issued against public authorities and can also be issued 
against private authorities when they are discharging public 
functions and the decision which is sought to be corrected 
or enforced must be in discharge of a public function. In 
the present case, the issues and questions involved do 
not relate to public functions.
***
10. In these circumstances, the present writ petition is 
dismissed without going into the merits of the matter 
upholding the preliminary objection raised by the 
respondent company that it is not a State and, therefore, 
not amenable to writ jurisdiction. It is, however, observed 
that the petitioner is at liberty to approach any forum for 
redressal of his grievance, if so advised and the time 
spent by him in these proceedings shall be taken into 
consideration for the purpose of limitation. In the facts 
and circumstances of the case, there will be no order as 
to costs.”
17.	 Learned senior counsel further submitted that this Court in the case 
of Kaushal Kishor (supra) has held that a writ cannot be issued 
against non-state entities that are not performing any ‘Public Function’. 
He further pointed out that it is the conceded case of the appellants 
that post privatisation,
respondent No. 3(AIL) does not perform any 
‘Public Function’ and in any case running a private airline with purely a 
commercial motive can never be equated to performing a ‘Public Duty’. 
18.	 He further submitted that the issue is not that of a ‘Right’ but of a 
‘Remedy’ i.e. dismissal of a writ petition filed by the appellants on 
the ground of maintainability would not lead to extinguishment of the 
rights of the appellants and only the forum for adjudication of their 
dispute would change. Any alleged violations of Articles 14 or 16 of 
the Constitution of India are simply grounds for claiming relief which 
can well be agitated before any other appropriate forum.
19.	 Learned senior counsel further submitted that appellants’ rights, if any, 
are protected by the specific liberty granted to them by the High Court 
vide the impugned judgment and if a Court of competent jurisdiction
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was to hold in their favour, the same would be enforceable against 
the employer-respondent No. 3(AIL).
20.	 He further contended that the appellants employees approached 
the writ Court after significant delay, since the cause of action arose 
between 2007 to 2010 and captioned writ petitions came to be filed 
before the Division Bench of the Bombay High Court between 2011 
to 2013 and implored the Court to dismiss the appeals.
21.	 We have given our thoughtful consideration to the submissions 
advanced by learned counsel for the parties and have gone through 
the impugned judgment and the material placed on record.
Questions of law posed for adjudication: -
22.	 The questions of law presented for adjudication of this Court are:
(i)	
Whether respondent No.3(AIL) after having been taken over 
by a private corporate entity could have been subjected to writ 
jurisdiction of the High Court?
(ii)	
Whether the appellants herein could have been non-suited on 
account of the fact that during pendency of their writ petitions, 
the nature of the employer changed from a Government entity 
to a private entity?
(iii)	 Whether the delay in disposal of the writ petition could be 
treated a valid ground to sustain the claim of the appellants 
even against the private entity?
Discussion and Conclusion: -
23.	 The thrust of submissions of learned senior counsel appearing on 
behalf of the appellants was based on the judgment of the Division
Bench of Calcutta High Court in the case of Ashok Kumar Gupta 
(supra) wherein, it was held in para 32(reproduced supra) that the 
cause of action crystallized at a point of time when the authority was 
subjected to the writ jurisdiction.
24.	 Ashok Kumar Gupta’s case (supra) was distinguished by the learned 
Single Judge of the Gujarat High Court in the case of Kalpana Yogesh 
Dhagat (supra). The relevant excerpts from the said judgment are 
reproduced hereinbelow for the sake of ready reference: -
“50. There is no doubt that if the dictum, as explained 
by the Division Bench of the Calcutta High Court (Ashok
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949
Mr. R.S. Madireddy and Anr. etc. v. Union of India & Ors. etc.
Kumar Gupta vs. Union of India, (2007) SCC OnLine Cal 
264) is applied in the case in hand, then probably, the writ 
application could be said to be maintainable. However, 
there are few distinguishing features, which, in my 
view, are important as they go to the root of the matter. 
First, in the case before the Calcutta High Court even 
at the time when the writ application was rejected, the 
company was a public sector undertaking; Secondly, 
even when the appeal was filed, the same was a public 
sector undertaking; and thirdly and most importantly, 
the issue as regards the propriety and legality of the 
privatisation was pending before the Larger Bench of 
the Supreme Court.”
(emphasis supplied)
25.	 In the case of Kalpana Yogesh Dhagat (supra), the learned Single 
Judge of the Gujarat High Court went on to uphold the preliminary 
objection regarding the maintainability of the writ petition against 
Reliance Industries Limited (RIL). The relevant excerpts from the 
said judgment are extracted hereinbelow: -
“19. …..However, the scope of mandamus is determined by 
the nature of the duty to be enforced, rather than the identity 
of the authority against whom it is sought. If the private 
body is discharging public function, the pubic law remedy 
can be enforced. The duty cast upon a public body may 
be either statutory or otherwise and the source of such 
power is immaterial, but,
nevertheless, there must be 
a public law element in such action. The respondent 
Reliance Petro Investment Limited has nothing to do 
with the public as such. It is a company engaged in 
the business of petroleum products. Neither the Union 
nor the ‘State’ has any control over the respondent 
company. Mere issue of a licence by the Union or State 
Government for the purpose of running the company 
by itself will not make it an instrumentality of a “State” 
or an agency of a “State”.
***
21. The language of Article 226 is no doubt very wide. It 
states that a writ can be issued “to any person or authority”
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and “for enforcement of right conferred by Part III and for 
any other purpose”. However, the aforesaid language in 
Article 226 cannot be interpreted and understood literally. 
The Court should not apply the literal rule of interpretation 
while interpreting Article 226. If we take the language of 
Article 226 literally it will follow that a writ can be issued to 
any private person or to settle even the private disputes. 
If we interpret the word “for any other purpose” literally 
it will mean that a writ can be issued for any purpose 
whatsoever, e.g. for deciding private disputes, for grant of 
divorce, succession certificate etc. Similarly, if we interpret 
the words “to any person” literally it will mean that a writ 
can even be issued to the private persons. However, this 
would not be the correct meaning in view of the various 
decisions of the Supreme Court in which it has been held 
that a writ will lie only against the State or instrumentality 
of the State vide Chander Mohan Khanna v. N.C.E.R.T, 
(1991) 4 SCC 578, Tekraj Vasandhi v. Union of India, (1988) 
1 SCC 236 : AIR 1988 SC 469, General Manager, Kisan 
Sahkari Chini Mills Ltd. v. Satrughan Nishad, (2003) 8 SCC 
639, Federal Bank Ltd. v. Sagar Thomas & Co., (2003) 
10 SCC 733, Pradeep Kumar Biswas v. Indian Institute 
of Chemical Biology ((2002) 5 SCC 111) etc. In General 
Manager, Kisan Sahkari Chini Mills Ltd. v. Satrughan 
Nishad (supra), the Supreme
Court observed that a writ 
will lie against a private body only when it performed a 
public function or discharged a public duty. The ‘R.I.L.’ 
is not performing a public function nor discharging 
a public duty. It is only doing a commercial activity. 
Hence, no writ lies against it.
***
58. Even if the aforesaid dictum of the Supreme Court 
is applied in the case in hand, it is difficult for this 
Court to take the view that as the writ applicant is not 
responsible for the change of circumstances and the 
writ application was maintainable at the time when 
it was filed, a writ can be issued to a private entity 
for the purpose of enforcing the fundamental rights 
of the writ applicant alleged to have been infringed
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Mr. R.S. Madireddy and Anr. etc. v. Union of India & Ors. etc.
by a company, a public sector undertaking at a point 
of time and now no longer in existence. It is also not 
legally permissible to take the view that since the I.P.C.L. 
was a Government of India undertaking, a writ could be 
issued against the Union of India. An employee of a public 
sector undertaking by itself will not be a civil servant or an 
employee of the Union of India. At best, he could be termed 
as an employee of a company owned by the Government. 
Therefore, even ignoring the I.P.C.L., no liability could be 
fastened even on the Government of India at this stage.
59. I am not impressed by the submission of Mr. Bhatt that 
the writ applicant has no other alternative remedy, except 
invoking the writ jurisdiction of this Court. According to Mr. 
Bhatt, since the original writ applicant i.e. the employee has 
passed away, it will be legally impermissible for the legal 
heirs to file a civil suit for declaration for the purpose of 
challenging the order of dismissal from service. The legal 
heirs on record can definitely file a civil suit for declaration 
that the departmental inquiry was not conducted in a fair 
and transparent manner and the consequential order of 
dismissal is illegal. Section 14 of the Limitation Act would 
also save the situation. Section 14 of the Limitation Act 
itself is meant for the suits.”
(emphasis supplied) 
26.	 The same controversy was also
considered by a learned Single 
Judge of the Delhi High Court in the case of Asulal Loya (supra) 
which was a case involving the termination of services of the writ 
petitioner-employee by the company Bharat Aluminium Company 
Limited (BALCO) which was previously a Government of India 
Undertaking and was privatized pursuant to the tripartite share 
purchase agreement. The employee-writ petitioner filed a writ petition 
before the Delhi High Court to challenge his termination wherein, a 
preliminary objection was raised regarding maintainability of the writ 
petition on the ground that during pendency of the proceedings, the 
company had changed hands and no longer retained the characteristic 
of a ‘State’ or ‘Other authority’ as defined under Article 12 of the 
Constitution of India. The assertion of the writ petitioner was that 
the petition was maintainable against the respondent on the date it 
was filed. As per the writ petitioner, the rights and obligations of the
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parties stood crystallized on the date of commencement of litigation 
and thus, the reliefs should be decided with reference to the date on 
which the party entered the portals of the Court. The learned Single 
Judge in para 10(reproduced supra) upheld the preliminary objection 
raised against the maintainability of the writ petition and relegated 
the writ petitioner therein to approach the civil Court for ventilating 
the grievances raised in the writ petition. 
27.	 The Division Bench of the Bombay High Court in the case of Tarun 
Kumar Banerjee (supra) also took a similar view observing as below: -
“1. Both the petitions were filed against Bharat Aluminium 
Co. Ltd. when the petitions were filed, it was a Government 
of India enterprise. We are told by the Respondent that 
they had filed an affidavit on 22-3-1996 thereby pointing 
out that Bharat Aluminium Co. Ltd. has been privatized 
and share of more than 50% have been transferred 
to Sterlit Industries India Ltd. and as a consequence 
Bharat Aluminium Company Ltd. is not a state and is 
not amenable to writ jurisdiction of this Court.
2. In view of this submission we dispose of both the petitions 
while granting the petitioner liberty to approach any other 
forum for redressal of their grievance if so advised. The time 
spent by the petitioners in prosecuting these proceeding 
shall be taken into consideration for the purpose of limitation 
in case the petitioner
choose any such remedy where the 
question of limitation would be relevant.”
(emphasis supplied)
28.	 Further, in the case of Beg Raj Singh (supra), this Court observed 
as below: -
“7. …. A petitioner, though entitled to relief in law, may 
yet be denied relief in equity because of subsequent 
or intervening events, i.e. the events between the 
commencement of litigation and the date of decision. 
The relief to which the petitioner is held entitled may 
have been rendered redundant by lapse of time or may 
have been rendered incapable of being granted by 
change in law. There may be other circumstances which 
render it inequitable to grant the petitioner any relief over 
the respondents because of the balance tilting against the
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Mr. R.S. Madireddy and Anr. etc. v. Union of India & Ors. etc.
petitioner on weighing inequities pitted against equities on 
the date of judgment….” 
(emphasis supplied) 
29.	 It is thus, seen that various High Courts across the country have 
taken a consistent view over a period of time on the pertinent 
question presented for consideration that the subsequent event i.e. 
the disinvestment of the Government company and its devolution 
into a private company would make the company immune from being 
subjected to writ jurisdiction under Article 226 of the Constitution of 
India, even if the litigant had entered the portals of the Court while 
the employer was the Government. The only exception is the solitary 
judgment of the Division Bench of Calcutta High Court in Ashok 
Kumar Gupta (supra), which was distinguished by the learned Single 
Judge of the Gujarat High Court in the case of Kalpana Yogesh 
Dhagat (supra) and rightly so, in our opinion, we have no hesitation 
in holding that the view taken in the judgments of Kalpana Yogesh 
Dhagat (supra) (by the High Court of Gujarat); Asulal Loya (supra) 
(by the High Court of Delhi) and Tarun Kumar Banerjee (supra) 
(by the High Court of Bombay) is the correct exposition on this legal 
issue and we grant full imprimatur to the said proposition of law. 
30.	 We would like to answer the three questions of law enumerated 
above as follows.
31.	 In order to be declared as “State” or “other authority” within
the 
meaning of Article 12 of the Constitution of India, it would have to 
fall within the well-recognised parameters laid down in a number of 
judgments of this Court. In this regard, we may refer to the case of 
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology21 
wherein this Court after taking into consideration the previous 
judgments on this point, observed as follows:
“27.Ramana [(1979) 3 SCC 489 : AIR 1979 SC 1628] 
was noted and quoted with approval in extenso and the 
tests propounded for determining as to when a corporation 
can be said to be an instrumentality or agency of the 
Government therein were culled out and summarised as 
follows : (SCC p. 737, para 9)
21	
[2002] 3 SCR 100 : (2002) 5 SCC 111
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“(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 are of public 
importance and closely related to governmental 
functions, it would be 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)”
40. The picture that ultimately emerges is that the 
tests formulated in Ajay Hasia [Ajay Hasia v. Khalid 
Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 
258] 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
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Mr. R.S. Madireddy and Anr. etc. v. Union of India & Ors. etc.
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.”
(emphasis supplied)
32.	 There is no dispute that the Government of India having transferred 
its 100% share to the company Talace India Pvt Ltd., ceased to have 
any administrative control or deep pervasive control over the private 
entity and hence, the company after its disinvestment could not have 
been treated to be a State anymore after having taken over by the 
private company. Thus, unquestionably, the respondent No.3(AIL) 
after its disinvestment ceased to be a State or its instrumentality 
within the meaning of Article 12 of the Constitution of India. 
33.	 Once the respondent No.3(AIL) ceased to be covered by the definition 
of State within the meaning of Article 12 of the Constitution of India, 
it could not have been subjected to writ jurisdiction under Article 226 
of the Constitution of India.
34.	 A plain reading of Article 226 of the Constitution of India would make it 
clear that the High Court has the power to issue the directions, orders 
or writs including writs in the nature of Habeas Corpus, Mandamus, 
Certiorari, Quo Warranto and
Prohibition to any person or authority, 
including in appropriate cases, any Government within its territorial 
jurisdiction for the enforcement of rights conferred by Part-III of the 
Constitution of India and for any other purpose. 
35.	 This Court has interpreted the term ‘authority’ used in Article 226 
in the case of Andi Mukta (supra), wherein it was held as follows:
“17. There, however, the prerogative writ of mandamus is 
confined only to public authorities to compel performance of 
public duty. The ‘public authority’ for them means everybody 
which is created by statute—and whose powers and duties 
are defined by statute. So government departments, local 
authorities, police authorities, and statutory undertakings 
and corporations, are all ‘public authorities’. But there is no 
such limitation for our High Courts to issue the writ ‘in the 
nature of mandamus’. Article 226 confers wide powers on
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the High Courts 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’.
***
20. 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 Article 
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. 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.”
(emphasis supplied)
36.	 Further, in the case of Federal Bank Ltd. v. Sagar Thomas22, 
this Court culled out the categories of body/persons who would be 
amenable to writ jurisdiction of the High Court which are 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 
22	
[2003] Supp. 4 SCR 121 : (2003) 10 SCC 733
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957
Mr. R.S. Madireddy and Anr. etc. v. Union of India & Ors. etc.
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.”
37.	 The respondent No.3(AIL), the erstwhile Government run airline 
having been taken over by the private company Talace India Pvt. 
Ltd., unquestionably, is not performing any public duty inasmuch 
as it has taken over the Government company Air India Limited for 
the purpose of commercial operations, plain and simple, and thus 
no writ petition is maintainable against respondent No.3(AIL). The 
question No. 1 is decided in the above manner.
38.	 The question of issuing a writ would only arise when the writ petition 
is being decided. Thus, the issue about exercise of extra ordinary 
writ jurisdiction under Article 226 of the Constitution of India would 
arise only on the date when the writ petitions were taken up for 
consideration and decision. The respondent No.3(AIL)- employer 
was a government entity on the date of filing of the writ petitions, 
which came to be decided after a significant delay by which time, the 
company had been disinvested and taken over by a private player. 
Since, respondent No.3 employer had been disinvested and had 
assumed the character of a private entity not performing any public 
function, the High Court could not have exercised the
extra ordinary 
writ jurisdiction to issue a writ to such private entity. The learned 
Division Bench has taken care to protect the rights of the appellants 
to seek remedy and thus, it cannot be said that the appellants have 
been non-suited in the case. It is only that the appellants would 
have to approach another forum for seeking their remedy. Thus, the 
question No.2 is decided against the appellants.
39.	 By no stretch of imagination, the delay in disposal of the writ petitions 
could have been a ground to continue with and maintain the writ 
petitions because the forum that is the High Court where the writ 
petitions were instituted could not have issued a writ to the private 
respondent which had changed hands in the intervening period. 
Hence, the question No.3 is also decided against the appellants.
40.	 Resultantly, the view taken by the Division Bench of the Bombay 
High Court in denying equitable relief to the appellants herein and 
relegating them to approach the appropriate forum for ventilating 
their grievances is the only just and permissible view.
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41.	 We may also note that the appellants raised grievances by way of 
filing the captioned writ petitions between 2011 and 2013 regarding 
various service-related issues which cropped up between the 
appellants and the erstwhile employer between 2007 and 2010. 
Therefore, it is clear that the writ petitions came to be instituted 
with substantial delay from the time when the cause of action had 
accrued to the appellants.
42.	 It may further be noted that the Division Bench of Bombay High Court, 
only denied equitable relief under Article 226 of the Constitution of 
India to the appellants but at the same time, rights of the appellants to 
claim relief in law before the appropriate forum have been protected. 
43.	 We may further observe that in case the appellants choose to 
approach the appropriate forum for ventilating their grievances as 
per law in light of the observations made by the Division Bench of 
the Bombay High Court, Section 14 of the Limitation Act, 1963 shall 
come to the rescue insofar as the issue of limitation is concerned.
44.	 In wake of the discussion made hereinabove, we do not find any 
reason to take a different view from the one taken by the Division 
Bench of the Bombay High Court in sustaining the preliminary 
objection qua maintainability of the writ petitions preferred by the 
appellants and rejecting the same as being not maintainable.
45.	 With the above observations, the appeals are
dismissed. No order 
as to costs.
46.	 Pending application(s), if any, shall stand disposed of.
Headnotes prepared by: Ankit Gyan
Result of the case: 

Appeals dismissed.