Last Week, the Jammu and Kashmir High Court noted that if purely private unaided educational institutions are performing public functions then writ petitions are maintainable against such institutions.
The writ plea against a teacher’s termination appointed in an unaided private school on a probation basis was considered by Justice Javed Iqbal Wani.
- Last Week, the Jammu and Kashmir High Court noted that if purely private unaided educational institutions are performing public functions then writ petitions are maintainable against such institutions.
- Submissions by the Petitioner to entertain the plea as a Writ against Private Educational Institutions
- Contrary Respondents’ Reply to not consider the plea as Writ
- Arguments By Respondents
- Petitioner’s Contention
- Notings of the Bench to consider the Plea as a Writ
Submissions by the Petitioner to entertain the plea as a Writ against Private Educational Institutions
The Petitioner expressed that the respondents-school is providing closely related educational activities similar to those performed by the State in its sovereign capacity and that the whole process involves an element of public interest.
Submissions were also made that the petitioner and the actions of respondents fall within the ambit and scope of public duty/ public functions and as such renders their said actions amenable to writ jurisdiction of this court.
Contrary Respondents’ Reply to not consider the plea as Writ
The respondents expressed upon a preliminary/maiden objection qua the maintainability of the writ on the premise that the respondent-school is a private unaided minority educational institution. It is not a State under Article 12 of the Constitution hence is not amenable to have writ jurisdiction of this Court.
Arguments By Respondents
Argument were raised by the respondent-school that the school itself have established the rules and the service conditions of the employees of the school are governed by the Rules of 2007 where under Rule 5 a mechanism is provided for proceeding against an employee for any misconduct.
It was noted the respondent without affording an opportunity of being heard to the petitioner and without holding any enquiry issued communication effecting his termination. Though, initially respondents followed the rules and served a notice of allegations upon the petitioner, but upon receiving his reply to the same, the respondents expelled him on 26.02.2020.
Notings of the Bench to consider the Plea as a Writ
The Single Judge in regards to the maintainability of the writ petition was of the view that the issue is no more res-integra as noted in law laid down in Marwari Balika Vidyalaya v. Asha Srivastava and Ors by Supreme Court in 2019 wherein observation based upon the 2012 Ramesh Ahluwalia Vs. state of Punjab and Others as also Raj Kumar Vs. Director School Education and Ors (2016) was laid and held that against a purely unaided educational institution performing public functions, writ application is maintainable.
In the present case, the Single Bench saw that the respondent’s educational institution being an unaided minority educational institution is subject to the control and supervision of the Jammu and Kashmir School Education Act of 2002 read with Jammu and Kashmir School Education Rules of 2010.
- Section 11 of the Act prohibits establishment and running of a private school without the permission of the competent authority which under section 2 of the Act is an appointee of the Government.
- Section 3 of the said Act makes the provisions of the Act applicable to all the schools in the state be it a private or government school.
- Section 19 and 20 of the Act provide for teaching and non-teaching staff in private schools and conditions of their service required to be framed and notified.
- Section 12 of the Act provides for only those private schools to function which are recognized under the Act and section 13 deals with management of private schools.
“For all what emerges from the perusal of above provisions and the prepositions and principles enunciated by the Hon’ble Supreme Court in the judgment (supra) is that the respondent- school even though an unaided private educational institution yet its establishment, running and functioning is regulated by and under the provisions of the aforesaid Act and the Rules.”Observing that the preliminary objection raised by the respondents regarding the maintainability of the writ petition the High Court ruled that it is not legally tenable.
The Court directed the respondents to reinstate the petitioner against the post in question as a sequel to which, the impugned communication dated 26.02.2020 terminating the petitioner is quashed and the plea is entertained.
“The respondents, however, shall be at liberty to either initiate a fresh inquiry against the petitioner qua alleged misconduct or else to resume the inquiry already initiated against the petitioner from the stage it had been stalled / abandoned by the respondents, in accordance with the Rules of 2007 within a period of four weeks from the date of the order.”