Point of law : Remedy under Article 226 of the Constitution of India would be available against an authority or a person only when twin tests are satisfied. The authority or the person should not only discharge public function or public duty but the action challenged therein should fall in the domain of public law.

JUDGMENT :

Munishwar Nath Bhandari, J.

1. Learned Single Judge has referred following questions to the Larger Bench finding conflicting judgments on the issue :

“(i) Whether the element of public function and public duty inherent in the enterprise that an educational institution undertakes, conditions of service of teachers, whose functions are a sine qua non to the discharge of that public function or duty, can be regarded as governed by the private law of contract and with no remedy available under Article 226 of the Constitution?

(ii) Whether the decision in Rajesh Kumar Srivastava and others versus State of U.P. and others, 2020 (2) AWC 1693 is in teeth of the holding of the Full Bench in Roychan Abraham versus State of U.P. and others, (2019) SCC OnLine All 3935?”

2. The questions have been referred after detailed consideration of the earlier judgments on the issue. The judgment in the case of M.K. Gandhi and others versus Director of Education (Secondary) U.P. and others, 2005 (3) ESC 2265 (Alld) (FB) affirmed by the Apex Court in the case of Committee of Management, Delhi Public School and another versus M.K. Gandhi and others, (2015) 17 SCC 353 has also been considered.

3. Learned Single Judge has given reference of the judgments of the Apex Court in the cases of Ramesh Ahluwalia versus State of Punjab and others, (2012) 12 SCC 331 and Lal Bahadur Gautam versus State of U.P. and others, (2019) 6 SCC 441. It also noticed that the issue of maintainability of the writ petition was considered by the Larger Bench in the case of Roychan Abraham versus State of U.P. and others, (2019) SCC OnLine All 3935. It was to revisit the view expressed by the Full Bench in the case of M.K. Gandhi (supra) and Division Bench in the case of Anjani Kumar Srivastava versus State of U.P. and others, 2017 (7) ADJ 112 (DB). The Full Bench in the case of Roychan Abraham (supra) answered the questions as under:-

"64. Question (i): Private Institutions imparting education to students from the age of six years onwards, including higher education, perform public duty primarily a State function, therefore are amenable to judicial review of the High Court under Article 226 of the Constitution of India

65. Question (ii): The broad principle of law which has been formulated in the judgement of the Full Bench in M.K. Gandhi and Division Bench in Anjani Kr. Srivastava is confined to the facts obtaining therein and is not an authority on the proposition of law that private educational institutions do not render public function and, therefore, are not amenable to judicial review of the High Court. The judgments do not require to be revisited.”

4. Learned Single Judge found judgment in the case of Rajesh Kumar Srivastava(supra)to be in conflict with other judgments. In the case of Rajesh Kumar Srivastava(supra), learned Single Judge held writ petition under Article 226 of the Constitution of India to be maintainable against the authority or the person discharging public duty only when issue of public law is involved. The writ petition would not be maintainable if claim is arising out of a private contract between the two parties. The aforesaid view was taken to be in conflict with the earlier judgment of this Court and, accordingly, matter has been referred to the Larger Bench.

5. The questions referred to the Larger Bench is about maintainability of the writ petition against the authority or the person discharging public duty/public function which may not fall within the definition of “State or its authority” under Article 12 of the Constitution of India.

6. The issue aforesaid has been considered by the Apex Court at length recently in the case of Ramakrishnan Mission and another versus Kago Kunya and others, (2019) 16 SCC 303. In the said case, the Apex Court has considered all the earlier judgment on the issue. The judgment in the case supra was given after considering the scope of Article 12 so as Article 226 of the Constitution of India. It is not only after an