SUNEET KUMAR,J. - (1.) The matter came to be referred to the Larger Bench by the learned Single Judge on being confronted with the judgment rendered by the Supreme Court in?Ramesh Ahluwalia v. State of Punjab and others 2012 (12) SCC 331?(Ramesh Ahluwalia case), wherein, the Court held that a private educational body performing public duty or discharging public function would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution of India, consequently, in the opinion of the referring Court, the Full Bench judgment of this Court in?M.K. Gandhi and others v. Director of Education (Secondary) U.P. and others 2006 (62) ALR 27?(M.K. Gandhi case) and Division Bench decision rendered in?Anjani Kumar Srivastava v. State of U.P. and others 2017 (7) ADJ 112 (DB)?(Anjani Kumar Srivastava case) needs to be revisited. Relevant portion of the referring order reads thus: "In my opinion, since the judgment of Ramesh Ahluwalia (supra) clearly stipulates that even a purely private body where the State has no control over its internal affairs would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution if it discharges a public function or public duty, the judgment of the Full Bench of this Court in M.K. Gandhi as well as the Division Bench judgment in Anjani Kumar Srivastava needs to be revisited. It is, therefore, directed that the records of this case be placed before the Hon'ble Chief Justice for referring the matter to the Larger Bench in the light of the judgment of the Supreme Court in the case of Ramesh Ahluwalia."
(2.) We have carefully gone through the pleadings of the writ petition with the assistance of learned counsel for the parties and the referring order. In our opinion the following questions require to be answered: (i) whether private institutions imparting education perform public duty, a State function, making them amenable to judicial review under Article 226 of the Constitution of India; (ii) whether the Full Bench decision rendered in M.K. Gandhi and Division Bench judgment in Anjani Kumar Srivastava requires to be revisited in view of the Supreme Court decision rendered in Ramesh Ahluwalia. Facts: (I) Saint Francis School, a Christian Minority Institution founded and run by Shamli Franciscan Education Society, a religious and charitable organization, registered under the Societies Registration Act, 1860, is affiliated to the Council for the Indian School Certificate Examinations, New Delhi. (II) Petitioner, an assistant teacher of junior section of the school, was placed under suspension, thereafter, his services came to be terminated on 07 March 2014 with immediate effect. The writ petition was filed assailing the order of termination being arbitrary and in violation of the service conditions of the institution. (III) A preliminary objection was raised that the writ petition is not maintainable before the High Court under Article 226 of the Constitution against private educational institution in view of the Full Bench decision rendered in M.K. Gandhi. The Full Bench, in that case, held that Delhi Public School was not the 'State' within the meaning of Article 12 of the Constitution, but the affiliating body i.e. the Central Board of Secondary Education (CBSE) is the 'State' within the meaning of the Article. The Full Bench also held that the bylaws framed by the CBSE Board for affiliation shall be deemed to have been adopted by a school in case service conditions have not been framed by the institution and the CBSE Board would be liable to take action under its bylaws to disaffiliate the school in the event of breach. (IV) The judgment of the Full Bench of this Court was carried in appeal Civil Appeal No. 339 of 2007, the Supreme Court while disposing of the appeal vide judgment dated 14 August 2007 observed as follows: "'That all the respondents were teachers in DPS School, Ghaziabad. Their services were terminated. Therefore, they approach the High Court of Allahabad for setting aside the termination order. The learned Single Judge referred the matter to a larger Bench on the question as to whether the writ petition is maintainable against the private school or not, as there was conflict of opinion of that High Court. Subsequently, the matter was referred to the larger Bench and the larger Bench after hearing the parties, held that no writ will lie against the private school as it is not a 'State' within the meaning of Article 12 of the Constitution of India. Having held that the writ petition is not maintainable against the private body, still, they directed the CBSE to take action, as mentioned above. With great respect to the Full Bench of the High Court, we fail to understand the direction given by the Allahabad High Court. In our opinion, the direction given by the Allahabad High Court to the CBSE to totally misconceived and uncalled for. When the Allahabad High Court has already held that the DPS School is within the meaning of Article 12 of the Constitution of India and the writ petition is not maintainable, there was no necessity for giving a direction to the CBSE which virtually amounts to granting a declaration in favour of those teachers whose services have been terminated. We fail to appreciate the view taken by the Allahabad High Court by unnecessarily complicating the issue by involving the CBSE for a private dispute between the teachers and the DPS. The Allahabad High Court should have stop short of holding that the said DPS is a private body and the writ is not maintainable. Hence, we are of the view that no writ is maintainable against a private school as it is not a 'State' within the meaning of Article 12 of the Constitution of India and no direction could have been given by the High Court to the CBSE for interfering with the functioning of the teachers. The proper remedy for the teachers was to file a civil suit for damages, if there was any. Subsequently, we allow this appeal and set aside the order passed by the Allahabad High Court to the extant of giving a direction to the Board....." (V) The issue of maintainability of such a writ petition has also been considered in Ramesh Ahluwalia. In that case, an order removing a administrative officer of a school affiliated with CBSE was challenged before the High Court which dismissed the writ petition on the ground that it was not maintainable under Article 226 of the Constitution. The Supreme Court adverted to the earlier decision in Shri Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Sampark Trust v. V.R. Rudani (1989) 2 SCC 691 (Anadi Mukta case), holding that the expression "any person or authority" used in Article 226 of the Constitution is not only to be confined to statutory authorities and instrumentalities of the State and would cover any other person or body performing public duty. The Supreme Court also relied upon the decisions in Unni Krishnan, J.P. and others v. State of Andhra Pradesh and others 1993 SCC (1) 645 (Unni Krishnan case) and Zee Telefilms Ltd. and another v. Union of India and others (2005) 4 SCC 649 (Zee Telefilms case).
(3.) In the aforesaid backdrop, the learned Single Judge was of the opinion that M.K. Gandhi and Anjani Kumar Srivastava requires reconsideration. Article 12 of the Constitution.;