Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar dismissed a teacher’s writ petition, holding that Article 226 cannot be invoked to enforce service-related claims that flow from a private contractual relationship with a private unaided school. The petitioner, engaged as a primary teacher on contractual terms, questioned the school’s selection list and sought a direction to continue in service rather than be replaced by another contractual appointee. The Court noted that while a private educational institution may, in appropriate situations, be subject to writ jurisdiction, judicial review extends only to actions carrying a public law element and not disputes confined to private employment arrangements. The petition was dismissed, with liberty to pursue other remedies.

The petitioner challenged the select list of Primary Teachers issued in July 2023 by the Chairman and Principal of a private school and sought a direction to continue as a Primary Teacher without being replaced by another contractual teacher. She stated that she had joined the school in April 2014 and had rendered nine years of continuous service without any complaint. In March 2023, an advertisement for the post of PRT was issued, to which she applied and rejoined in April 2023. Subsequently, a fresh advertisement was issued for the 2023–2024 session. Although she appeared before the selection committee, her name was placed in the waiting list. She contended that selected candidates lacked requisite qualifications such as B.Ed and CTET.

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The Union Territory and the Chairman, CBSE, submitted that they were not concerned with the selection process and questioned maintainability. The school authorities raised a preliminary objection that the employment relationship was contractual and fell within private law, placing reliance on earlier High Court decisions.

The Court recorded that “the relief that is being sought by the petitioner is primarily against the respondents No. 3 and 4… which is admittedly a private body.” It 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.”

Referring to Article 226, the Court stated that “The words ‘any person or authority’ used in Article 226… includes ‘any person or authority’ performing public duties.” It further recorded that “if the rights are purely of a private character no mandamus can issue” and that “if the management of the college is purely a private body with no public duty mandamus will not lie.”

Relying on precedent, the Court observed that “there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties.” It further stated that “even if writ petition would be maintainable against an authority… before issuing any writ… the Court has to satisfy that action… is in the domain of public law as distinguished from private law.”

While considering the scope of judicial review against private educational institutions, the Court recorded that “Only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction.” It noted that “Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226.”

Applying these principles, 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.” It further stated that “The same is a matter which falls within the realm of private law.” The Court added 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.”

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The Court recorded: “In the face of aforesaid discussion, 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 vice Mr. Ravinder Gupta, AAG for R-1; Mr. Karan Singh, Advocate vice Mr. Vipan Gandotra, Advocate for R-2; Mr. Rajat Gupta, Advocate for Respondent Nos. 3 & 4

Case Title: Malika v. UT of J&K & Ors
Neutral Citation: 2026: JKLHC-JMU:60
Case Number: WP(C) No. 2193/2023
Bench: Justice Sanjay Dhar