Writ Appeal No. 227 of 2010 · Gauhati High Court

(A.K.Goel, CJ) This appeal has been preferred against order of learned Single Judge dismissing the writ petition filed against the respondent school as not maintainable in vie w of Division Bench judgment of this Court dated 28.7.2010 passed in Writ Appeal No.227 of 2010 (Md. Ali Haidar vs. State of Assam and others). We have heard learned counsel for the parties. Learned counsel for the appellant points out that the order of the Division Benc h of this Court was in conflict with the judgment of the Hon’ble Supreme Court i n K. KRISHNAMACHARYULU AND OTHERS VS. SRI VENKATESWARA HINDU COLLEGE OF ENGINEER ING AND ANOTHER, (1997) 3 SCC 571 holding that writ was maintainable against an educational institution discharging public functions and the said judgment of th e Hon’ble Supreme Court has not been referred to in the Division Bench judgment. The Division Bench judgment being in conflict with the judgment of the Hon’ble Supreme Court and having been rendered without referring to the said judgment ca nnot be treated as a binding precedent. Learned counsel for the respondents have not been able to dispute this legal pos ition. In view of above, we allow this appeal, set aside the impugned order dismissing the writ petition as not maintainable and restore the writ petition for a fresh hearing by learned Single Judge. The parties may appear before the learned Single Judge for further proceedings o n 09.10.2012.