When will unaided private schools be subject to writ jurisdiction? Jammu & Kashmir High Court answers

The Jammu and Kashmir High Court recently ruled that while an unaided private educational institution may be subject to writ jurisdiction since it performs public duties, no writ remedy can be invoked against such entities if the action complained of is not public in nature [Presentation Convent Senior Secondary School v. Satvinder Singh].

A Division Bench of Justices Sanjeev Kumar and Mohd Yousuf Wani made the observation while setting aside a single-judge order to reinstate an individual as a teacher of an unaided private school.

The Division Bench found that the High Court could not have exercised its writ jurisdiction in such a case since the recruitment and service conditions of teachers were matters of private contract.

"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 become ipso facto amenable to writ jurisdiction," the Court said.

For any writ remedy (such as issuing a writ of mandamus to reinstate staff) to be availed, it should be shown that the act complained of has a direct nexus with the discharge of a public duty, the Court explained. Writ jurisdiction cannot be exercised to enforce a purely private contract entered into between parties, the Court added.

"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. For issuance of writ of mandamus to an authority, it must be demonstrated that such authority is not only 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.

The order was passed after the school in question challenged the single judge's earlier direction to reinstate a teacher (respondent), who had been terminated after certain allegations of misconduct.

The school's management asserted that there was no public element involved in the dispute to invoke the High Court's writ jurisdiction.

The respondent's counsel countered that he had been engaged in the performance of teaching duties and, therefore, was performing public duty.

The Court, however, found merit in the school's arguments and allowed the appeal.

"Mere fact that appellant Institute is recognized by the Government or is affiliated to a statutory board will not alter the position. An unaided private educational institution may qualify to be a 'Public authority' amenable to writ jurisdiction of the 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," the Court added.

Advocates Adarsh Sharma and Atul Verma appeared for the appellant (school).

Advocate Sachin Gupta appeared for the respondent.

[Read Order]