JUDGMENT : Hon'ble THAKUR, J.—The challenge in the present writ petition is to the order of termination dated 23.6.2009 (Annex. 11 on record). 2. The petitioner was appointed on 27.4.2007 as a Programme coordinator in Krishi Vigyan Kendra, Danta, Barmer by respondent No. 3 pursuant to an advertisement issued. As per the terms of appointment, the petitioner was to be on probation for a period of 12 months. On completion of one year's service, the petitioner requested for grant of annual grade increment but there was no such response to the request made. This request was followed up by two subsequent letters dated 11.11.2008 and 9.6.2009 but to no effect. On 10.6.2009, the petitioner made a complaint against use of vulgar language and misbehaviour by her colleagues in office and again no action was taken on the said letter. Thereafter, the petitioner fell ill and applied for leave from 28.6.2009 to 6.7.2009. While she was on sick leave, services of the petitioner came to be terminated on 23.6.2009 without there being any show cause notice or without issuing any charge-sheet. Immediately thereafter, the petitioner moved a representation against termination order. In reply thereto, respondent No. 2, i.e. Zonal Project Director. The Indian Council of Agriculture Research (ICAR) wrote to respondent No. 3 informing them that before terminating her services, the petitioner ought to have been issued a show cause notice and a request was made to re-look into the matter. Since the order of termination was not revoked, the present writ petition ha been filed. 3. Mr. S.K. Malik, learned counsel appearing on behalf of the petitioner has contended that the petitioner was appointed on the post of Programme coordinator with respondent No. 3 and on completion of probation period of one year, it would be deemed that she had been confirmed in service. It is argued that before terminating the services, no enquiry was conducted against the petitioner as per Central Civil Services (Classification, Control & Appeal) Rules, 1965 and thus there has been flagrant violation of principles of natural justice. 4. Per contra, Mr. It is argued that before terminating the services, no enquiry was conducted against the petitioner as per Central Civil Services (Classification, Control & Appeal) Rules, 1965 and thus there has been flagrant violation of principles of natural justice. 4. Per contra, Mr. Bhavit Sharma, learned counsel appearing on behalf of respondent No. 3 has vehemently argued that present writ petition is not maintainable on account of the fact respondent No. 3 is not a State or other authority within the meaning of Article 12 of the Constitution of India and as such, writ petition ought to bee dismissed at the very out set. It is further argued that the services of the petitioner were found unsatisfactory and hence it was decided not to continue with her probation. 5. I have heard learned counsel for the parties and perused the record of the case. 6. The Indian Council of Agriculture Research (for short "ICAR") executed a memorandum of understanding on 29.8.1982 with respondent No. 3, namely Society to Uplift Rural Economy (for short "SURE"), through its Secretary which is a society registered under the Societies Registration Act, 1860. The society has its own Constitution. The ICAR and SURE respondent No. 3 having a common objective to promote and accelerate the progress of education and training in the field of agriculture and lilied areas decided to pool their resources of money, scientific manpower skill, equipment and other facilities in accordance with the agreement entered into. The project was to be known as the scheme "Krishi Vigyan Kendra". As per the agreement entered into, in Article-II it was specified that grant for the project would be met by the ICAR and assistance would be given, subject to personnel and budgetary limitations imposed by the Government of India from time to time. As per Article III, SURE, respondent No. 3 was to provide 20 to 40 hectares of cultivable land, required road, water, sewerage and electricity facilities, monetary and material support in addition to the provision made by the Council and the profit, if any, from the Krishi Vigyan Kendra Farms/animals was to ploughed in development of the scheme. As per one of the clauses in Article-IV, SURE was to invite ICAR representative to participate in the Selection committee for recruitment of the scientific and technical personnel of Krishi Vigyan Kendra. As per one of the clauses in Article-IV, SURE was to invite ICAR representative to participate in the Selection committee for recruitment of the scientific and technical personnel of Krishi Vigyan Kendra. However, as per clause 9(2) of Article V, it was specified that "the administrative control over the staff employed under the scheme shall vest in the SURE under the guidance of the Secretary/President of the Society to Uplift Rural Economy (SURE) Barmer, Rajasthan." Clause 11 of Article VII specified that assessment of the performance of the staff of Krishi Vigyan Kendra shall be done by the concerned institution as per norms and procedure agreed between host institution and ICAR in advance. Further more, it was specified in the agreement that the project is essentially a co-operative venture. 7. The petitioner herein, was employed by SURE under the Scheme/Project known as Krishi Vigyan Kendra, which scheme was the out come of the agreement that was entered into between ICAR and NGO, a society that had been formed for up liftment of Barmer. The primary question that needs to be decided whether SURE, the employer of the petitioner is a State within the meaning of State or other authority under Article 12 of the Constitution of India and its action is amenable to writ jurisdiction. 8. Learned counsel appearing on behalf of the petitioner contends that since the respondent is performing a public duty and public function, and as such would be amenable to jurisdiction of the High Court under Article 226 of the Constitution of India for issuance of writ of mandamus. Reliance has been placed on a judgment rendered by the Hon'ble Supreme Court in Andi Mukta Sadguru Shree Muktajee Vendas Swami Suvarna Jayanti Mahotsav Smarak Trust vs. R.R. Rudani, (1989) 2 SCC 691 , subsequently followed in Ramesh Ahluwalia vs. State of Punjab & Ors., (2012) 12 SCC 331, wherein it was held that even a purely private body, where the State has no control over its internal affair, would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution of India for issuance of a writ of mandamus. Provided, of course, the private body i performing public functions which are normally expected to be performed by the State authorities. 9. Provided, of course, the private body i performing public functions which are normally expected to be performed by the State authorities. 9. Per contra, learned appearing on behalf of the respondents contends that respondent No. 3 employer of the petitioner i a society registered under the Societies Registration Act, 1860. The object of the society amongst others i to undertake certain works for the up liftment of the women, artisan of Barmer. It was on account of an agreement entered into with ICAR that a project was undertaken. Though project was funded by ICAR, the said council did not have administrative control over the functioning of the said society and project was run on the basis of cooperation. It was submitted that the project could be terminated as well and was thus not an authority or instrumentality of the State to be amenable to writ jurisdiction. It is also urged that the petitioner is challenging the termination order which this is private in nature and does not involve a question arising out of the public law functions. 10. A perusal of the agreement entered into between ICAR and SURE entered on 28.7.1992 clearly defines the role that have to be played, both by ICAR and the Society, which has been registered under the Societies Registration Act, 1860 a far back as on 22.2.1990 under Registration No. 55 Barmer/1989-1990. Though SURE, respondent No. 3 is carrying on public function and is funded by ICAR in its project known as Krishi Vigyan Kendra, it is limited to District Barmer only and is not operational throughout India. The memorandum of understanding contemplated that full administrative control would remain with SURE, respondent No. 3 itself, agreement had a provision for the termination of the scheme, referring any matter, not covered specifically under memorandum of understanding to be settled by mutual discussion and on points of disagreement, referring the matter to the Director General of ICAR, whose decision would be final and binding upon the parties and for extension of memorandum of understanding by mutual consent for such period or periods, as may be considered desirable and also noted that the scheme would be run on the basis of cooperation. 11. 11. The preponderant considerations for pronouncing an entity as State agency or instrumentality are: (1) financial resources of the State being the Chief finding source; (2) functional character being governmental in essence; (3) plenary control residing in government; (4) prior history of the same activity having been carried on by government and made over to the new body; (5) some element of authority or command. In Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust vs. V.R. Rudani: (1989) 2 SCC 691 (at page 700), the Supreme Court succinctly put this issue beyond the pale of controversy in the following words:- "20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 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." 12. Virtually most bodies/institutions are amenable to the jurisdiction of the High Courts under Article 226. However, Courts must exercise restraint and exercise these powers only in cases which involve public law. Therefore, the "litmus" test for invoking the writ jurisdiction is whether the Act complained of is in the discharge of a public duty or a public function. In a judgment rendered by the Hon'ble Supreme Court in Godavari Sugar Mills Ltd. vs. The State of Maharashtra (2011) 2 SCC 439 it has been held that where the lit has a public law character or involves a question arising out of the public law functions, access to justice by way of a public law remedy under Article 226 will not be denied. 13. In a recent judgement of Supreme Court in Joshi Technologies International Inc. 13. In a recent judgement of Supreme Court in Joshi Technologies International Inc. vs. Union of India (2015) 7 SCC 728 , it has held that the writ petition under Article 226 of the Constitution of India would be maintainable only in the following situations: (i) At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness. (ii) State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practice some discriminations. (iii) Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, Involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases court can direct the aggrieved party to resort to alternate remedy of civil suit etc. (iv) Writ jurisdiction of High Court under Article 226 was not intended to facilitate avoidance of obligation voluntarily incurred. (v) Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the license if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the license, if he finds it commercially inexpedient to conduct his business. (vi) Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damage. (vi) Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damage. (vii) Writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is denial of equality before law or equal protection of law or if can be shown that action of the public authorities was without giving any hearing and violation of principles of natural justice after holding that action could not have been taken without observing principles of natural justice. (viii) If the contract between private party and the State/instrumentality and/or agency of State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching under Article 226 of the Constitution of India and invoking its extraordinary jurisdiction. (ix) The distinction between public law and private law element in the contract with State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract. This Court has maintained the position that writ petition is not maintainable. Dichotomy between public law and private law, rights and remedies would depend on the factual matrix of each case and the distinction between public law remedies and private law, field cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the fact of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision making process or that the decision is not arbitrary. (x) Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this i how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness. (xi) The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. 14. In VST Industries vs. VST Industries Workers' Union (2001) 1 SCC 298 the Supreme Court held that manufacture and sale of cigarettes did not involve any public function and that in what could be considered a part of the service conditions of service of a workman no breach of public duty is involved. 15. It is noted that it was on the basis of an agreement entered into between respondents, SURE and ICAR that a scheme was floated under which the petitioner came to be appointed. The termination order is under challenge. In the opinion of this Court, the society is an independent body, though might be performing a public function on the basis of an agreement entered into, but would not be deemed to be State or other authority within the meaning of Article 12 of the Constitution of India and its action liable to scrutiny in writ jurisdiction under Article 226 of the Constitution of India since the lis is purely private in nature without there being any element of public law being involved or a dereliction in performance of a public duty. 16. As far as merits of the case are concerned, the petitioner was appointed on probation on 27.4.2007. As per the offer of appointment for the post of Programme Coordinator, it was specified as under:- "That you would continue on probation till your service are confirmed in writing by the management. If no such letter is served by the management, it will be deemed that your services have not been confirmed. During probation on month's notice is required, if you intend to leave the service. If no such letter is served by the management, it will be deemed that your services have not been confirmed. During probation on month's notice is required, if you intend to leave the service. After confirmation, your services can be terminated with three months' notice or salary in lieu thereof, except on disciplinary grounds, for which no notice periods is necessary from the management side. Similarly, if you want to resign, you will have to give three months prior notice else your salary in lieu thereof shall be recovered." In the said letter of appointment, it was also specified that the incumbent would be governed by the Rules and Regulations of SURE which are annexed as Annexure 16 with the writ petition. The agreement specifically specified that the person would remain on probation until and unless confirmed in writing by the management and in case no such letter is received, it would be deemed that the services have not been confirmed. Learned counsel for the respondent SURE has placed on record the evaluation done regarding the work of the petitioner, wherein it had been found that her work was unsatisfactory and on that basis the termination order came to be issued. It is also well settled principle of law that termination of service of the petitioner on the ground that the employee is not competent or otherwise suitable is not stigmatic or is a punishment. The assessment of the work of a probationer is required to be done before a person could be confirmed in service. 17. Resultantly, it is held that since the lis is purely private in nature Article 226 of the Constitution of India and same can not be invoked to settle the dispute, the petitioner is relegated to a remedy available under civil law and any observations made here under will have no bearing on the merits of the case. 18. There is no merit in this writ petition and the same is hereby dismissed.