Point of Law : High Court cannot be sustained on the proposition that the writ petition would not maintainable merely because the respondent institution is a purely unaided private educational institution.

JUDGMENT :

ACHINTYA MALLA BUJOR BARUA, J.

1. Heard Mr. P. Borah, learned counsel for the petitioner. Also heard Mr. U.K. Nair, learned senior counsel for the respondents no. 2, 4, 5 and 6 being the authorities under the Army Welfare Education Society and Army Public School, Basistha and Mr. K. Gogoi, learned counsel for the respondents no. 1 and 3 being the authorities under the Union of India.

2. The petitioner herein was appointed as a Chowkidar in the Army Public School, Basistha as per the communication of appointment dated 25.06.1992 issued by the Col GS at HQ 51 Sub Area, C/O 99 APO.

The communication of appointment clearly reads as follows:

“.....2. Shri Sochita Nand Sah of 313 Copy ASC may please be appointed as Chowkidar in the Army School, Basistha.”

3. Pursuant to such method of appointment, the petitioner served as a Chowkidar in the Army Public School, Basistha. Subsequently, by a communication dated 03.05.2013 of the Brig. Chairman of the Army Public School, Basistha, the petitioner was informed that the appointment given to him was not regular but it was always temporary in nature. Secondly, the petitioner was informed that the post of Chowkidar had been abolished and as such, no fresh appointment to such post of Chowkidar was required. Pursuant to the communication dated 03.05.2013, the engagement of the petitioner as a Chowkidar in the Army Public School, Basistha was dispensed with.

4. When we look at the provisions of the communication dated 03.05.2013 conjointly with the communication of appointment dated 25.06.1992, it is difficult to arrive at a conclusion that the communication of appointment dated 25.06.1992 provided that the appointment of the petitioner was not regular and it was always a temporary in nature.

5. However, Mr. U.K. Nair, learned senior counsel tries to explain the situation by contending that all the engagements in the Army Public School, Basistha are contractual in nature and therefore, in general, it is temporary.

6. We express no view on that, but reiterating that the communication of appointment dated 25.06.1992 specifically does not provide that the appointment was temporary in nature. But as regards the other reasoning as to why the service of the petitioner was required to be dispensed with and that the post of Chowkidar had been abolished, we have to look at the issue from a different perspective. It is the stated stand of the respondent authorities in the Army Public School, Basistha that although earlier the school authorities were engaging a person as a Chowkidar, but the subsequent decision is to engage a private security agency for the purpose and therefore, the post of Chowkidar in the circumstance required was to be abolished and also by implication it stood abolished.

7. Mr. U K Nair, learned senior counsel for the respondent in the Army Public School, Basistha by referring to a judgment of this Court rendered in Prabhu Nath Pandey and Ors. v. Union of India & Ors. 2000 (1) GLT 470 raises the contention that the Army Public School, Basistha is not an instrumentality of the state within the meaning of Article 12 of the Constitution of India and therefore, this writ petition is not maintainable. For the purpose, reliance is placed on paragraph 11 of the judgment rendered in Prabhu Nath Pandey (supra).

8. In order to appreciate the contention, we extract the paragraph 11 of the judgment of Prabhu Nath Pandey (supra):

“(11) Thus, the law is now settled by the apex Court and a Division Bench of this court that in the absence of statutory requirement the contract of employment cannot ordinarily be enforced against an employer and the remedy is to sue for damages. The exceptions to the aforesaid rule are the case of public servant dismissed from service in contravention of Article 311 of the constitution, reinstatement of a dismissed worker under the Industrial Law, a statutory body acting in breach of statutory obligations. In the present case, the petitioners have not made out a case th