Sr. No. 17 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE ORDER 1. The Petitioner has filed this writ petition under 226 of the Indian Constitution seeking the following relief: (i) Release and disbursement amount of his leave encashment being withheld by respondent without any valid justification; (ii) Respondent be made to pay interest @ 24% p.a. asdamages and compensation forillegally withholding of theamount of leave WP(C) 2747/2024 Janak Raj Sharma Son of Sh. Chunni LaI, R/o Lakshmi Nagar, Muthi, Jammu. ….Petitioner/Appellant(s) Through: Mr. Vaibav Gupta, Advocate v/s 1.D.A.V. CoIIege Managing Committee, Chitra Gupta Road, New Delhi Through its General Secretary. 2.President, D.A.V. College Managing Committee, Chitra Gupta Road, New Delhi. 3.Chairman, MHS DAV Cent. Public School, Akhnoor 4. Principal MHS DAV Cent. Public School, Akhnoor. 5. Manager, MHS DAV Cent. fublic School, Akhnoor. ….Respondent(s) Through:- Mr. Rajat Gupta, Advocate CORAM: 2 encashment ofthe petitioner w.e.f. the date thesame is due till the same isreleased and disbursed to thepetitioner; 2. The petitioner was employed as a TGT Teacher at MHS DAV Cent. Public School, Akhnoor. After successfully rendering 33 years of service, he retired from service on 28th February 2022 upon attaining the age of superannuation.During his tenure at MHS DAV Cent. Public School, Akhnoor, due to the unethical and uncalled-for conduct of the then Principal of the said school, namely Smt. Satish Sharma, the entire school staff resorted to protest against the Principal. However, the petitioner along with other staff members was made scapegoats, and blame regarding the protest was shifted onto them, is the contention of the petitioner. 3. The petitioner and three other staff members were served with charge sheets by the Principal, which were challenged before this Court in WP(C) No. 196/2022 titled Janak Raj Sharma and others v. DAV College Managing Committee and others. This Court, by its order dated 08.02.2022, directed that the respondents may proceed with the inquiry against the petitioners but the inquiry shall not be finalized pending adjudication. 4. It is stated that Respondent No.1 is a society administering hundreds of schools throughout the country, 3 including the Union Territory. The respondents have withheld the petitioner‟s retiral benefits, including provident fund, gratuity, and leave encashment. The petitioner‟s Provident Fund was settled only after the intervention of the Provident Fund Commissioner, Delhi North. Thereafter, the gratuity claim was resolved after the petitioner approached the Central Labour Commissioner, resulting in the release of the full gratuity amount along with 10% interest penalty for the delayed period. 5. The petitioner is aggrieved of withholding of the amount due towards leave encashment. All requests and representations made by the petitioner for the release of this retiral benefit have been futile. 6. The petitioner served a legal notice dated 08.10.2024 upon Respondents 3 and 4, demanding release of the leave encashment amount. In response, Respondent No. 4, through a letter dated 28.10.2024 addressed to the learned counsel for the petitioner, stated that the petitioner should await the outcome of the proceedings pending in the writ petition filed before this Court. 7. The petitioner, thus, seeks to maintainthe present petition on the following grounds: (i) That Leave encashment refers to the conversionof leaves into money. The Encashment of EarnedLeave/Half Pay Leave standing 4 at the credit ofthe retiring employee is admissible on the dateof retirement subject to a maximum of 300days. The entitlement of the petitioner to leaveencashment benefit has not been disputed bythe respondents. However, the respondents, are not releasing the benefit on the ground this Court in the writ petitionfiled by the petitioner has directed not to finalize the inquiry, therefore, the benefit ofleave encashment cannot be granted to thepetitioner. It is submitted that this Court has never restrained the respondentsfrom granting the benefit of leave encashmentto the petitioner, but this Court hasrestrained the respondents from finalizing thedepartmental inquiry instituted against thepetitioner which have been challenged by thepetitioner on various legal grounds; (ii) That Hon'ble High Court of Delhi in Amar Jyoti Brahmachari vs. Convent of Jesus & Mary School, 2023 SCCOnline Del 6902 has allowed a writ petitionunder Article 226 of the Constitution of India bydirecting, inter alia release of leave encashment benefit to the petitioner. Hon'ble High Court of Delhi before issuingdirections, also examined, whether the High Court can issue a Writ ofMandamus directing the respondents to payretiral dues of the petitioner who was theemployee of an unaided educational institutionand held that High Court can issue directions byway of writ of mandamus; (iii)That the Hon'ble Supreme Court (2013) 12 SCC 210 State of Jharkhand & Ors.Vs. Jitendra Kumar Shrivastava & Anr observed that in absence of any provision in the Pension Rules, the StateGovernment cannot withhold a part of pensionand/or gratuity even during pendency ofdepartmental/criminal proceedings. (iv) That the Hon'ble Supreme Court in Marwari Balika Vidyalayav. Asha Srivastava, (2O20) 14SCC 449 has observed that a writ application ismaintainable against purely unaidededucational institution discharging public functions; 8. Objections have been filed by Respondent No. 4, stating that the petitioner has raised disputed questions of fact which cannot be adjudicated upon in writ jurisdiction. It is submitted that a writ petition filed before this Court seeking issuance of writs of certiorari and mandamus against a private educational institution would be maintainable only if 5 a public law element is involved. Where only a private law remedy is sought, no writ petition would lie. In the present case, since private law is involved, the petition is not maintainable. It is further contended that the respondent- school does not qualify as a “State” and its relationship with its teachers constitutes a private contract which cannot be enforced through writ jurisdiction under Article 226 of the Constitution of India. The present petition is thus not maintainable, as the law is well settled in the case of Army Welfare Education Society vs. Sunil Kumar Sharma &Ors., wherein the Hon‟ble Supreme Court has categorically held that a writ petition is not maintainable since the relationship between the administration of the Army Welfare Education Society and its employees is contractual and falls within the realm of private law, and hence, a writ petition would not lie. 9. It is further submitted by respondent that a similar writ petition was filed by one Shivali Sharma &Ors. vs. Army Public School &Ors. before the Jammu Wing of this Court, wherein the petitioners sought quashment of their termination orders issued by the respondents. This Court, vide its order dated 22.10.2024, dismissed the writ petition on the ground that the writ petition was not maintainable as the Army Welfare Education Society does not qualify as a “State,” and the relationship with its teachers constitutes a private contract that cannot be enforced through writ 6 jurisdiction under Article 226 of the Constitution of India. The order of the learned Single Judge was challenged by the petitioners before the Division Bench of the High Court of Jammu & Kashmir and Ladakh at Jammu, and the Hon‟ble Court, vide its order dated 12.03.2025, upheld the order passed by the learned Single Judge and dismissed the LPA filed by the petitioners therein. 10. Heard learned counsel for the parties and perused the material on record. 11. The Hon‟ble Supreme Court in case titled DILEEP KUMAR PANDEY v. UNION OF INDIA, 2025 INSC 749 (May 21, 2025) in para 13 and 14 held as under:- “13. The Court in St. Mary‟s Educational Society (2022 SCC ONLINE SC 1091) heldthat an application under Article 226 of the Constitution ismaintainable against a person or a body discharging public duties orpublic functions. The public duty cast may be either statutory orotherwise, and where it is otherwise, the body or the person must beshown to owe that duty or obligation to the public involving public lawelement. Similarly, for ascertaining the discharge of public function, itmust be established that the body or the person was seeking toachieve the same for the collective benefit of the public or a sectionof it and the authority to do so must be accepted by the public. Further, it has been held that even if it be assumed that aneducational institution is imparting public duty, the act complained ofmust have a direct nexus with the discharge of public duty. It isindisputably a public law action which confers a right upon theaggrieved to invoke the extraordinary writ jurisdiction under Article226 of the Constitution for a prerogative writ. Individual wrongs orbreach of mutual contracts without having any public element as itsintegral part cannot be rectified through a writ petition under Article226 of the Constitution. 7 14. St. Mary‟s Educational Society (supra) further holds thateven if it be perceived that imparting education by private unaidedschools is a public duty within the expanded expression of the term,an employee/non-teaching staff engaged by the school for thepurpose of its administration or internal management is only anagency created by it. It is immaterial whether the person is employedby the school to discharge that duty. In any case, the terms ofemployment of contract between a school and non-teaching staffcannot and should not be construed as an inseparable part of theobligation to impart education.” 12. The Supreme Court while relying upon the case of St. Mary’s Education Society (2022 SCC ONLINE SC 1091) held that though the Society was imparting education, which involves public duty, the relationship between therespondents and the Army „Welfare Education Societywas that of an employee and private employer arising outof a private contract. Therefore, a breach of contract doesnot touch any public law element, and the school cannotbe said to be discharging any public duty in connectionwith the employment of the teachers. 13. In the present case, the relationship between the petitioner and the respondents is that of an employee and a private employer arising out of private contract. If there is breach of a covenant of private contract, same does not touch any public law element. The school cannot be said to be discharging any public duty in connection with the employment of the respondents.The rights are purely of a private character; thus, no mandamus can be issued. If the 8 management of the school is purely a private with no public duty mandamus will not lie. 14. In view of the above, the instant petition is found to be without any merit and the same is, accordingly, dismissed. (VINOD CHATTERJI KOUL) JUDGE JAMMU BIR 13.08.2025