The Allahabad High Court on Monday has held that only if the action under challenge falls in the domain of public law then remedy under Article 226 of the Constitution would be available against an authority/person discharging public duty or function.
A three-judge bench comprising Acting Chief Justice Munishwar Nath Bhandari and Justices Prakash Padia and Sanjay Kumar Singh passed this order while hearing a petition filed by Uttam Chand Rawat.
The Court was hearing a reference made by a Single Judge 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?”
The Court noted that, In the case of Rajesh Kumar Srivastava (supra), 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.