13 Oct 2022 6:25 AM GMT
The Jammu & Kashmir & Ladakh High Court recently 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. A bench comprising Justice...
The Jammu & Kashmir & Ladakh High Court recently 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.
A bench comprising Justice Sanjeev Kumar was hearing a plea of 12 petitioners, who were engaged as Teachers in Muslim Educational Institute, Higher Secondary School, Pampore-Pulwama in terms of which they had challenged the order of dispensation of their services.
In their plea the petitioners had submitted that 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. While the petitioners were regularly taking online classes, the respondent Institute did not pay them any salary for the months of March to July, 2020 and paid only 60% of salary for the months of August to September, 2020. Similarly, for the months of October and November, 2020, 25% of the salary of the petitioners was withheld whereas from December, 2020, onwards petitioners, the petitioner averred.
Agitating for their pending dues the petitioners made several representations before the respondents to consider their submissions which unfortunately was not taken by the respondent Institute in good taste and, accordingly, the respondent Institute vide orders impugned issued on different dates had dispensed with the services of the petitioners as Teachers.
Adjudicating upon the matter Justice Dhar observed that it is trite law that a writ of mandamus under Article 226 may be issued even against a private body which is not a state within the meaning of Article 12 of the Constitution of India and the High Court can exercise judicial review of the action of such body challenged by a party provided there is public law element. The writ jurisdiction cannot be exercised to enforce a pure private contract entered into between the parties, the bench underscored.
Deliberating further on the subject 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 stated.
The bench clarified 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 also 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.
The bench noted 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.
Applying the position of law in vogue on the matter the bench observed 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 and there is no public element involved in the discharge of duties by the petitioners governed purely in terms of their contract of employment.
On the issue that the respondent Institute being affiliated/recognized by Government, the bench observed,
"Mere fact that the respondent Institute is recognized by the government or is affiliated to a statutory board will not alter the position,.
Dismissing the plea, 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.
Case Title : Showkat Ahmad Rather Vs Government of J&K
Citation : 2022 LiveLaw (JKL) 178
Click Here To Read/Download Judgment