Private Unaided School Teacher Selections Are Contractual, Not Enforceable Through Writ Jurisdiction: J&K And Ladakh High Court
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar has dismissed a writ petition filed by an unsuccessful candidate seeking to challenge a private unaided school’s selection list for Primary Teachers and to secure her continuation or re-engagement. The Court held that appointments made through such selection exercises culminate in a contract of service governed by private law, and that any rights asserted by participants in the process remain private in nature. Since the school was neither the State nor an instrumentality of the State, the Court found no public law element in the service dispute that could justify interference under Article 226, leaving the petitioner to pursue an alternative remedy.
The petitioner challenged the select list of Primary Teachers issued in July 2023 by the management of a private unaided school and sought continuation in service as a Primary Teacher without being replaced by another contractual appointee. The petitioner claimed to have been engaged as a Primary Teacher since April 2014 and asserted that she had rendered nine years of continuous service without any complaint regarding her performance. It was contended that after responding to an advertisement issued in March 2023 and joining duties in April 2023, a fresh advertisement was issued for the academic session 2023–2024, pursuant to which she appeared before the selection committee.
The petitioner alleged that despite participating in the interview, her name was excluded from the select list and placed on the waiting list, while candidates allegedly lacking requisite qualifications were selected. A representation submitted to the school management did not yield any response. The Union Territory administration and the Central Board of Secondary Education stated that they had no role in the selection process and raised objections to the maintainability of the writ petition. The school management contended that the petitioner was engaged on a purely contractual basis and that appointment and selection of staff were governed by private law.
The Court examined the preliminary objection relating to maintainability and noted that the respondent school was a private institution managed by a society. The Court observed that “a private body/institution is also amenable to writ jurisdiction of the High Court even when it is not State within the meaning of Article 12”, but clarified that the scope of judicial review depended upon the nature of the duty involved.
Referring to settled legal principles, the Court recorded that “the words ‘any person or authority’ used in Article 226 of the Constitution not only includes the statutory authorities and instrumentalities of the State but it also includes any person or authority performing public duties.” The Court noted that the decisive factor was whether the action complained of involved a public law element.
The Court relied on binding precedent to observe that “if the rights are purely of a private character no mandamus can issue” and that “a writ of mandamus can be issued against a private body only where there exists a public law element.” It further stated that “judicial review cannot be exercised to enforce purely private contracts entered into between the parties.”
Analysing the facts of the case, the Court observed that “the selection of teachers by a private unaided school results in creating of a contract of service between the school and the selected teacher” and that such matters “fall within the realm of private law.” The Court also recorded that the petitioner’s engagement was contractual in nature and that her appointment was session-based.
The Court noted that prior decisions of coordinate benches had consistently held that enforcement of service-related rights arising out of private contracts could not be pursued through writ jurisdiction. In view of these principles, the Court concluded that “the rights arising in favour of candidates participating in the selection process are private rights, which cannot be enforced by way of a writ petition.”
The Court recorded that “the instant petition is held to be not maintainable. The same is dismissed accordingly leaving it open to the petitioner to work out appropriate remedy.”
Advocates Representing the Parties
For the Petitioners: Mr. Nitin Verma, Advocate
For the Respondents:
Ms. Monika Thakur, Assisting Counsel for the Union Territory, Mr. Ravinder Gupta, Additional Advocate General, Mr. Karan Singh, Advocate, Mr. Vipan Gandotra, Advocate, Mr. Rajat Gupta, Advocate
Case Title: Malika v. Union Territory of J&K & Others
Neutral Citation: 2026: JKLHC-JMU:60
Case Number: WP(C) No. 2193/2023
Bench: Justice Sanjay Dhar
