HC dismisses plea of private school teachers challenging dispensation of their services

Srinagar, Oct 11: The High Court of Jammu & Kashmir and Ladakh Tuesday ruled that an unaided private educational institution may qualify to be a “Public authority” amenable to writ jurisdiction of High Court, however, a mandamus will not be issued unless action of such authority complained of falls in the domain of public law as distinguished from private law.
Holding the petition not maintainable, the court dismissed a plea of 12 petitioners, who were engaged as Teachers in Muslim Educational Institute, Higher Secondary School, Pampore-Pulwama, challenging the order of dispensation of their services.
Justice Sanjeev Kumar noted that there is not even an iota of doubt that unaided private Educational Institutions do perform public duty of imparting education to children and, therefore, amenable to writ jurisdiction under Article 226 of the Constitution of India.
“Simply because a private unaided institution is amenable to writ jurisdiction does not mean that every dispute concerning such private institution also becomes ipso facto amenable to writ jurisdiction,” the court held.
The bench held that the right which emanates from private law cannot be enforced by invoking the writ jurisdiction irrespective of the fact that such institution is discharging public functions.
Justice Kumar underscored that for issuance of writ of mandamus to an authority, it must be demonstrated that such authority is not performing a public duty but doing a particular thing in a particular manner and it has failed in the performance of such public duty.
“There must be a public element or integral part thereof in the action of such authority,” the court said.
It recorded that though an educational institution like the respondent Institute may be imparting public duty yet unless the act complained of has direct nexus with the discharge of public duty, no writ would lie to enforce such act.
The court noted that the recruitment and service conditions of Teachers in the respondent Education Institute are, admittedly, non-statutory in character and fall purely in the realm of private contract.
It pointed out that there is no public element involved in the discharge of duties by the petitioners governed purely in terms of their contract of employment.
“Mere fact that the respondent Institute is recognized by the government or is affiliated to a statutory board will not alter the position,’ the bench held.
Deciding the plea on maintainability, Justice Kumar said, “Absent violation of any statutory provision or breach of public duty on the part of respondent Institute, the petition, which is essentially for enforcement of a private contract of service, is not maintainable.
However, the court left it open to the petitioners to work out their remedies as may be available to them under law.
As per the petitioners, due to outbreak of Covid-19 pandemic, the respondent Education Institute was closed as a precautionary measure and the petitioners were called upon to conduct the classes online and the salary due to them was not paid by the respondent Institute.
The petitioners made applications, representations and complaints to different authorities to intervene in the matter.
However, this was not taken by the respondent Institute in good taste and, accordingly, the respondent Institute issued orders on different dates, dispensed with the services of the petitioners as Teachers.