( 1 ) THIS petition has been filed by the petitioner Shri Layak Ram who was working as 4th class employee on daily wages with respondent No. 2 namely Canteen Manager, Army Head Quarter, Block Q, Saina Bhawan, New Delhi. It is the case of the petitioner that he was appointed in March 19, 1994 as 4th class employee on daily wages basis, after his retirement as army employee from where he is getting monthly pension of Rs. 950. In January 19, 1997 he requested for permanent appointment. The petitioner further alleges that there were three regular vacancies with respondent No. 2 and on the request of respondent No. I, respondent No. 3 recommended three names for regularisation which included the name of the petitioner as well. However, respondent No. 2 wanted to accommodate two of his kins. This move of respondent No. 2 was opposed by the employee of the canteen who were working there since long. On this respondent No. 2 became annoyed and on 9. 9. 1997 he refused to take the services of the petitioner which amounts to his termination. The petitioner contends that refusal on the part of respondent No. 2 not to take the services of the petitioner from 9. 9. 1997 and not regularising the service of the petitioner is bad, illegal, unjust unfair and against the principles of law and is violative of Articles 14, 16 and 21 of the Constitution of India. On the basis of these averments the petitioner has prayed for issuance of appropriate writ, order or direction thereby declaring the termination of the petitioner service from 9. 9. 1997 bad in law and further directing the respondent to reinstate and regularise the services of the petitioner as 4th class employee with all service benefits from the back date.

( 2 ) COUNTER affidavit has been filed on behalf of respondents I and 2 wherein a preliminary objection has been taken that the Army Headquarter Canteen, hereinafter called the Canteen does not form part of regular army or any other Government establishment under Ministry of Home Affairs or Ministry of Defence or even the canteen stores, department of Quarter Master General s Branch Army Headquarter. It is further averted that it is a unit run canteen of Army Headquarter, a private establishment to provide grocery items on cheaper rates as a welfare measure to armed forces personnel and ex-servicemen. Nominal profit is charged on sales to meet overhead expenses, including salaries and other payments made to the canteen employees. The funds of the canteen are non-goverment funds. The employees of the canteen are paid out of nominal profits charged by the canteen on sale of grocery items as per memorandum of settlement between the canteen and its employees dated 8th November, 1993 and casual labourers are also paid out of the same nominal profits. On the basis of these averments a preliminary objection is raised that the canteen is net a state or any other authority within the meaning of Article 12 of the Constitution of India and, therefore, not maintainable to the writ jurisdiction of this Court.

( 3 ) ON merit respondent contends that the petitioner was employed as casual labour in the Army Headquarter canteen from time to time depending upon the availability of work. In the first week of September, 1997 the petitioner was found indulging in the sale of canteen store to the unauthorised persons and, therefore, from 9th September, 1997 he was not employed. It is stated that in view of the fact that he was ex army personnel the matter personnel the matter was not reported to the police for initiation of any action as in such action his pension could be effects which he is getting from the army because payment of such pension is subject to future good conduct and, therefore, lienent view was taken.

( 4 ) IT is further stated that before 9th September, 1997 he could not be regularized because there was no vacancy in the canteen for appointment on regular basis. Canteen being welfare organization cannot afford to keep