Not every dispute of an unassisted private institution becomes ipso facto susceptible to written jurisdiction, the public law element shall: J&K&L High Court

The High Court of Jammu and Kashmir and Ladakh recently ruled that an unaided private educational institution can be termed a “public authority” within the written jurisdiction of the High Court, however, a mandamus will not be not issued unless the action of that authority complained of falls within the realm of public law as opposed to private law.

A bench comprising Judge Sanjeev Kumar heard a plea from 12 applicants, who were engaged as teachers at the Institute of Muslim Education, Higher Secondary School, Pampore-Pulwama, that they had challenged the order for their discharge from service.

In their pleading, the applicants had argued that due to the outbreak of the Covid-19 pandemic, the respondent education institute had been closed as a precautionary measure and the applicants had been called upon to provide the courses in line. While the Applicants regularly took online courses, the Respondent Institute did not pay them any salary for the months of March to July 2020 and only paid 60% of the salary for the months of August to September 2020. Similarly, for the months of October and November 2020, 25% of the petitioners salary was withheld while from December 2020, the petitioners claimed the petitioner.

Acting for their outstanding dues, the Petitioners made several representations before the Respondents to consider their conclusions which were unfortunately not taken by the Respondent Institute in good taste and, therefore, the impugned void orders of the Institute respondent rendered on various dates had renounced the services of the respondent Institute. petitioners as teachers.

Ruling on the issue, Justice Dhar observed that it is well established law that a writ of mandamus under section 226 can be issued even against a private body that 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 an element of public law. Judicial jurisdiction cannot be exercised to enforce a pure private contract entered into between the parties, the bench pointed out.

Deliberating further on the subject, Justice Sanjeev Kumar noted that there is not even an iota of doubt that unaided private educational institutions perform the public duty of providing education to children and therefore fall under of written jurisdiction under Article 226 of the Constitution of India.

The mere fact that an unassisted private institution falls within the jurisdiction of the courts does not mean that any dispute concerning that private institution also falls ipso facto within the jurisdiction of the courts.” the court said.

The bench clarified that the right that emanates from private law cannot be applied by invoking judicial competence regardless of the fact that this institution exercises public functions.

Judge Kumar also pointed out that in order to issue a writ of mandamus to an authority, it must be shown that that authority is not performing a public duty but is doing a particular thing in a particular way and has breached the law. exercise of this public duty.

There must be a public element or an integral part thereof in the action of this authority” said the court.

The bench noted that while an educational institution such as the Respondent Institute may confer a public duty, unless the act complained of is directly related to the exercise of public duty, no writ can would exist to enforce such an act.

Applying the position of law in force in the matter, the training noted that the conditions of recruitment and service of the Teachers of the Institute of Education in question are, of course, of a non-statutory nature and fall solely within the scope of the contract. private and that there is no public element involved in the performance of the applicants’ duties governed solely by their contract of employment.

On the issue of the respondent institute being affiliated/recognized by the government, the bench observed,

The mere fact that the respondent institute is recognized by the government or is affiliated with a statutory council will not change the position,.

Rejecting the plea, Judge Kumar said: “In the absence of violation of any statutory provision or breach of a public duty on the part of the Respondent Institute, the request, which essentially seeks the execution of a private service contract, is not admissible. .

However, the court left room for the petitioners to find the remedies available to them under the law.

Case Title: Showkat Ahmad Rather v J&K Government

Citation: 2022 LiveLaw (JKL) 178

Click here to read/download the judgment

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