Writ Not Maintainable for Private Service Contracts in Unaided Schools: J&K&L High Court

Introduction

The High Court of Jammu & Kashmir and Ladakh at Jammu , in a ruling delivered by Hon'ble Mr. Justice Sanjay Dhar on January 27, 2026 , dismissed a writ petition filed by a contractual primary teacher challenging her non-selection for re-engagement at a private unaided school. The court held that disputes arising from private service contracts with unaided educational institutions fall outside the purview of Article 226 of the Constitution , lacking any public law element . The petitioner, Malika, sought to quash the school's selection list and secure her reinstatement, but the court prioritized the distinction between public and private law domains in employment matters.

Case Background

Malika, the petitioner, joined Maharaja Hari Singh DAV Centenary Public School in Akhnoor as a Primary Teacher (PRT) on a contractual basis on April 4, 2014 . She served continuously for nine years without any reported complaints about her performance. In March 2023 , the school's principal (Respondent No. 4) issued an advertisement for PRT positions, to which Malika applied and was initially engaged for the session. However, in July 2023 , a fresh advertisement was issued for the 2023-2024 session. Malika appeared for an interview but was not selected, landing on the waiting list instead. She alleged that several selected candidates lacked required qualifications, such as B.Ed degrees or CTET certification, and she had made an unsuccessful representation to the school's chairman (Respondent No. 3) against her rejection.

The writ petition under Article 226 named the Union Territory of Jammu & Kashmir (Respondent No. 1), the Chairman of the Central Board of Secondary Education (CBSE, Respondent No. 2), and the school's officials as respondents. The core legal questions were: whether the writ petition was maintainable against a private unaided school for enforcing service-related rights under a contractual appointment, and if the selection process involved any public duty amenable to judicial review . The case, titled Malika vs. UT of J&K & Ors. (WP(C) No. 2193/2023), was decided on January 27, 2026 .

Arguments Presented

The petitioner's counsel argued that the school's selection process was arbitrary and discriminatory, as selected candidates did not meet statutory qualifications under relevant education laws. Malika claimed nine years of unblemished service entitled her to re-engagement and challenged the select list's validity. Relying on a Himachal Pradesh High Court decision in Dharmender Kumar Vs. State of H.P. and Ors. (CWP No. 5830 of 2014), the petitioner contended that writ jurisdiction extends to private schools like DAV institutions due to their public function of imparting education and CBSE affiliation.

Respondents No. 1 and 2, the UT of J&K and CBSE Chairman, maintained they had no role in the school's internal selection and objected to the petition's maintainability, asserting it was a private contractual dispute. Respondents No. 3 and 4 (school chairman and principal) raised a preliminary objection, arguing the school is a private society-run unaided institution governed by its bye-laws. They cited a prior Jammu & Kashmir High Court ruling in Shivali Sharma and Ors. Vs. Army Public School and Ors. (WP(C) No. 533/2024) to emphasize that employee-employer relations in such schools are contractual, falling under private law . On merits, they defended the selection as the committee's prerogative based on merit and performance, noting Malika's tenure ended with each session and no malafides existed in her non-selection.

Legal Analysis

Justice Sanjay Dhar analyzed the maintainability under Article 226, clarifying that while private bodies performing public functions like education are amenable to writ jurisdiction , review is limited to actions with a public law element . The court distinguished private contractual rights from public duties, holding that teacher selection in unaided schools creates mere private contracts, enforceable only through ordinary civil remedies.

Key precedents included the Supreme Court 's ruling in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust Vs. V.R. Rudani (1989) 2 SCC 691, which established that mandamus issues against non-State bodies only for public duties, not purely private rights. In Binny Ltd. Vs. V. Sadasivan (2005) 6 SCC 657, the court reiterated that writs require a public law element , excluding private contracts. K.K. Saksena Vs. International Commission of Irrigation and Drainage (2015) 4 SCC 67 emphasized even State actions under Article 12 do not cover private law disputes. Most pertinently, St. Mary's Education Society Vs. Rajendra Prasad Bhargava (2022 SCC Online SC 109) held that unaided schools' internal service matters, without statutory regulation, remain contractual and non-reviewable under Article 226, as they lack public nexus .

The court rejected the petitioner's reliance on the Himachal Pradesh case, favoring binding local precedents like Showkat Ahmad Rather Vs. Government of J&K (2022) and Janak Raj Sharma Vs. D.A.V. College Managing Committee (2025), which barred writs for private school service enforcement. It clarified that education as a public function does not extend writ relief to individual contractual grievances absent statutory backing.

Key Observations

The judgment extracted several pivotal quotes underscoring the court's reasoning:

• "The selection of teachers by a private unaided school results in creating of a contract of service between the school and the selected teacher. The same is a matter which falls within the realm of private law . The rights arising in favour of candidates participating in the selection process are private rights, which cannot be enforced against an institution which is neither a State nor an instrumentality of the State by way of a writ petition ." (Para 21)

• "While a private body like respondent-School would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution but the judicial review of its actions by the High court would be confined to only those actions which have the element of public duty whereas, its actions which have the character of private law rights are not amenable to the writ jurisdiction of the High court." (Para 19)

• "If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie." (Quoting Andi Mukta Sadguru , Para 13)

• "Even if a body performing public duty is amenable to the writ jurisdiction , all its decisions are not subject to judicial review . Only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction ." (Quoting St. Mary's Education Society , Para 17)

• "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." (Quoting St. Mary's Education Society , Para 68(b))

These observations highlight the boundary between public accountability and private autonomy in educational institutions.

Court's Decision

The High Court dismissed the writ petition as not maintainable, ruling that Malika's claims for challenging the selection and seeking re-engagement stemmed from a private contractual relationship devoid of public law elements. The order leaves her free to pursue remedies in civil courts, such as suits for breach of contract.

This decision reinforces that unaided schools' internal hiring remains insulated from constitutional writ scrutiny unless statutorily regulated or involving public duties. It may limit future challenges to teacher selections in similar institutions, guiding employees toward private law forums and upholding institutional autonomy while ensuring public functions like education standards are protected through other mechanisms. The ruling aligns with Supreme Court precedents, potentially influencing educational employment disputes across private unaided schools in India.