IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No. 5830 of 2014

Reserved on : 25.4.2017
Date of Decision: 03.05.2017

Dharmender Kumar ……Petitioner

.
Versus

.P
State of H.P. & others. ...Respondents
Coram:
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

H
Whether approved for reporting? Yes.
For the petitioner : Mr. Mohan Sharma & Mr. B. Nandan
Vashisht, Advocates.

of
For the respondents : Mr. Pushpinder Jaswal, Dy. A.G. with
Mr. Rajat Chauhan, Law Officer for
respondent No.1.
Ms. Rita Goswami & Ms. Komal
rt Chaudhary, Advocates, for respondent
No.2.
Mr. Bhupinder Gupta, Sr. Advocate
ou
with Mr. Neeraj Gupta, Advocate, for
respondents No.3 to 5.

Chander Bhusan Barowalia, Judge

The present writ petition is maintained by the
C

petitioner against the respondents praying therein for

h

the following relief :-

“(a) for issuance of an appropriate writ or

ig

direction to reinstate the services of

the petitioner with all consequential
H

benefits.
(b) for issuance of direction to regularize
the services of the petitioner after the
completion of 2 years of his probation
___________
1. Whether reporters of Local Papers may be allowed to see the judgment?Yes.

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 2

period, i.e., 06.4.2011 onwards with

all consequential benefits;
(c) to direct respondent No.2 to issue
directions to respondents No.3 to 5 to

.
follow the Rules and Regulations in

.P
its letter and spirit; and
(d) to pay the difference of salary to the

H
petitioner from 13.2.2014 with
interest @ 12% per annum till its
realization;

of
2. The petitioner has submitted that
rt
respondents No.2 to 5 are registered Society/ Trust

and performing the functions of public importance

ou
under the name and style of Dayanand Anglo Vedic

College Trust and Management Society and being

C

governed and regulated by the Rules and Regulations

h

framed by respondent No.2.

ig

3. Further, it has been contended that the

petitioner was appointed as a Music Teacher (PRT) on

H

6.4.2009 in DAV Senior Secondary School, Lakkar

Bazar, Shimla, by a Selection Committee headed by

the Chairman of DAV. It has been contended that the

petitioner was appointed as a TGT and thereafter, he

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 3

was allowed to teach the classes from 6th to 10+2

standard. Apart from that, the petitioner was

assigned with the duty to teach the general knowledge

.
(GK) and Dharam Shiksha from 6th to 8th Classes. It

.P
has further been submitted that the petitioner had

worked from 6.4.2009 to 30.11.2013.

H
4. It has also been averred that the petitioner

of
is well qualified and experienced person having the

requisite qualification, i.e. Junior Diploma in Vocal,

rt
Senior Diploma in Vocal as well as two years Diploma

in Harmonium and also completed

ou
Visharad/Prabhakar Degree in the year 2010 and

thereafter completed the Sangeet Prabhakar from

C

Paryag Sangeet Samiti, Allahabad, U.P.

h

5. It has been contended that the petitioner is

rendering his services with sincerity and dedication.

ig

No complaint whatsoever regarding the work and

H

conduct of the petitioner was received on behalf of the

students or the teachers. The petitioner during these

five years of his services ensured the participation of

the students in State or National Level Music

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 4

Competition and commendable job has been done by

him for preparation of the competition, Youth Festival

in the year 2009-2010, which was also commended in

.
every sphere by all. It has also been averred that the

.P
petitioner himself composed and directed a Mantra

‘Nad’, which is used to be sung in the morning

H
assembly in the DAV School.

of
6. It has also been contended that the Central

Board of Secondary Education (hereinafter to be

rt
referred as ‘CBSE’) framed bye-laws for regulating the

governance of the DAV Schools and work and conduct

ou
of the teachers as well. It has been contended that, in

the bye-laws, it has specifically been provided that

C

under what condition, the Managing Committee of the

h

School can terminate the services of the Teachers and

other staff members as well. Chapter VII talks about

ig

the Service Rules of the employees and Clause 27

H

deals with the probation period that every

appointment of the employee is on probation for a

period of one year, which the Management Committee

can extend for a further period of one year and during

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 5

the course of probation, as per the said clause, the

Managing Committee is empowered to terminate the

services of the employee without assigning any reason

.
by giving one month’s notice, in writing, or one month

.P
salary, including all allowances, which is also contrary

to the principles of natural justice. It has been

H
contended that as per Clause 28, if the work and

of
conduct of the employee is found satisfactory during

the probation period, he/she will be held eligible for

rt
the confirmation and the employee, shall be informed

about his termination within three months of the

ou
completion of probation period. It has further been

submitted that different yardsticks/parameters have

C

been adopted by the School Management Committee,

h

DAV Lakkar Bazar and some of the persons were

regularized even before the completion of probation

ig

period and some of the persons even have got

H

completed five years, are yet to be regularized. It has

been contended that the tactics being adopted by the

School Management Committee is that they used to

exploit the best period of petitioner’s career in

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 6

teaching with respondent No.5 and as and when they

wish they used to terminate the services, just to

accommodate their near and dear, as the petitioner

.
has spent the peak period of his career with

.P
respondent No.5 and after his continuous service with

respondent No.5 from 30.11.2013, conveyed the

H
message to the petitioner not to come to the School

of
without assigning any reason and orally terminated

the services of the petitioner. It has further been

rt
submitted that the petitioner, thereafter, kept on

visiting the School to know about the reasons for his

ou
termination from service. Thereafter, the petitioner

submitted a detailed representation to respondents

C

No.3 and 4, on 13.5.2014 and reminder thereof on

h

17.6.2014, but no heed has been paid by respondents

No.3 and 4 for redressal of grievances of the petitioner.

ig

7. It has also been submitted that respondent

H

No.5 is violating the Rules and Regulations framed for

functioning of the School itself and even the salary to

the same category of the employee is being paid

differently without following any proper procedure as

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 7

per the will of respondent No.5 and the petitioner has

been treated in the same manner with effect from

13.2.2012, as the petitioner was being paid the lesser

.
salary to the same category of teacher, which is illegal,

.P
wrong, arbitrary, discriminatory, unjust as well as

against the services of the petitioner, respondent No.5

H
has not made a glance over the past services rendered

of
by the petitioner, which were remained commendable

in every sphere. It has been submitted that the

rt
petitioner should have been regularized after the

completion of two years of his probation period i.e.

ou
from 6.4.2011, which was not done by the respondents

and the petitioner was convinced that his

C

regularization is under process and the services would

h

be regularized after completing all the codal

formalities, but in spite of that the services of the

ig

petitioner were illegally terminated without assigning

H

any reason and following the proper procedure, which

is liable to be deprecated by the strict indulgence of

this Court.

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 8

8. It has been contended that the State

Government has issued the instructions to the private

Institution established in Himachal Pradesh regarding

.
functioning and the work and conduct of its employees

.P
from time to time, which are not being followed by

respondent No.5 and respondent No.5 otherwise

H
bound to follow the instructions.

of
9. In the reply filed by Respondent No.2, it

has been submitted that the replying respondent is

rt
neither a necessary nor a proper party to the dispute

between the petitioner and the other respondents,

ou
hence, the name of the replying respondent No.2

deserves to be scored off from the array of the

C

respondents, as the disputes is mainly between the

h

School Management Committee (respondent No.3 to 5)

and the petitioner. It has been further submitted that

ig

the main function of the CBSE is to conduct the

H

examinations and to grant affiliation to the Schools.

10. Reply has also been filed by respondents

No.3 to 5 jointly. In their reply, it has been submitted

that the petitioner has suppressed true and material

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 9

facts from the Court, which disentitles the petitioner

to seek the reliefs sought for in the petition. It has

also been submitted that the CBSE has wrongly been

.
arrayed, as a party respondent, to the petition and

.P
that the respondents are not receiving any grant or

financial aid from the Government nor the replying

H
respondents are controlled and managed by the State

of
Government and further the respondents being not the

instrumentalities of the State of H.P is not amenable

rt
to the writ jurisdiction of this Hon’ble Court. It has

also been submitted that the School in which the

ou
petitioner has rendered his services, is a private

managed School and the petitioner has deliberately

C

and in a malafide manner made the State of H.P., as a

h

party in order to maintain the petition before this

Court. It has specifically been denied that the

ig

petitioner is entitled to invoke the extra ordinary writ

H

jurisdiction of this Court. It has been submitted that

the petitioner was appointed as Music Teacher in DAV

Senior Secondary School, Lakkar Bazar, Shimla on

6.4.2009.

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 10

11. The respondents have further denied that

the petitioner was appointed as a Music Teacher

initially, then TGT and thereafter, he was permitted

.
to teach Classes from 6th to 10+2 standard. It has

.P
been submitted that the petitioner was appointed on

6.4.2009, purely on temporary basis for one academic

H
session, for which purpose the petitioner had applied

of
and thereafter the petitioner had appeared for an

interview on 20.3.2009, which period of employment

rt
came to be over on 24.12.2009. Thereafter, the

petitioner was again given temporary appointment

ou
with the commencement of new Session on 16.2.2010,

which period came to an end on 2.12.2010 and for this

C

period interview was held on 11.12.2009. Thereafter,

h

on completion of the academic session and with a

purpose of filling up the post, the petitioner again

ig

applied for a temporary employment for which purpose

H

the interview was conducted on 10.12.2010 and the

petitioner was appointed and he joined on 14.2.2011,

purely on temporary basis, which appointment came

to an end on 23.12.2011. It has further been

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 11

submitted that, on completion of academic session,

fresh interviews were conducted on 18.12.2011, for

which period, the petitioner was again interviewed

.
and was appointed purely on temporary basis on

.P
13.2.2012 and the employment period came to an end

on 22.12.2012. Interviews were also again conducted

H
by the Management on 03.12.2012 and the petitioner

of
was again interviewed and joined purely on temporary

basis on 11.2.2013 and such employment period came

rt
to an end on 30.11.2013. It has also been submitted

that the appointment of the petitioner was co-

ou
terminus with the end of each academic session and

for each session the respondents had been issuing

C

appointment letter for every period, which was

h

temporary in nature and the terms and conditions, as

narrated in the appointment letters were duly

ig

accepted by the petitioner himself. The petitioner is

H

also guilty of suppressing the material facts from the

Hon’ble Court. It has been submitted that the

petitioner has rendered his services on temporary

basis, however, the petitioner has wrongly termed the

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 12

period of service with the School to be of 5 years in

continuation, which is stated to be incorrect. The

replying respondents do not dispute various clauses of

.
the bye-laws. It has been submitted that since no

.P
alleged right of the petitioner was violated, more

particularly, when the petitioner himself chose not to

H
apply and appear before the Interview Board, inspite

of
of the fact that an intimation was sent to the

petitioner, who chose to remain absent thus cannot be

rt
heard in portraying false facts in order to maintain

false petition before this Court. It has been alleged

ou
that the allegations made in the petition are false,

baseless and frivolous, as the petitioner was engaged

C

for different period on temporary basis in an academic

h

session. The procedure adopted for selection has also

been adhered to in a transparent manner and there is

ig

no fault of the replying respondents.

H

12. Heard the learned counsel for the parties.

13. Learned counsel for the petitioner has

argued that the action of the respondents in not

appointing the petitioner as a regular Teacher and

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 13

appointing him afresh every year in the academic

session after the year 2009 up to the year 2014, i.e.

for more than six years, is nothing, but exploitation of

.
the petitioner. He has argued that as per the Policy of

.P
the respondents with regard to the selection and

recruitment of staff, the respondents are bound by the

H
Rules and Regulations and the appointment is to be

of
made on temporary basis only for a limited period,

which in no case exceeds three years, but the action of

rt
the respondents is highly arbitrary. The youth/ peak

period of the petitioner is used by the respondents and

ou
by their action of asking him to appear each year for

the interview even for more than six years, he has

C

discharged the functions and duties of a Music

h

Teacher to the best satisfaction of the respondents, but

his non regularization is nothing, but the exploitation

ig

of a Teacher (petitioner).
H

14. On the other hand, Shri Bhupinder Gupta,

Senior Advocate, learned counsel appearing for

respondents No.3 to 5, alongwith Mr. Neeraj Gupta,

Advocate, has vehemently argued that the

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 14

respondents are not State under Article 12 of the

Constitution of India and so, the present petition is

not maintainable further the petitioner has no right in

.
his favour. He has further argued that the petitioner

.P
though was appointed on temporary basis, but he

cannot claim any right to be regularized with the

H
respondents. He has further argued that the writ

of
petition is not maintainable, as the petitioner was

never appointed on regular basis, as claimed by the

rt
petitioner.

15. Smt. Rita Goswami, learned counsel

ou
appearing for respondent No.2 has argued that

respondent No.2 is holding the examinations and so

C

far as the petitioner is concerned, he has a cause only

h

against respondents No.3 to 5 and the petitioner has

ig

raised no cause against respondent No.2.

16. The learned counsel appearing for

H

respondents No.3 to 5 has further argued that the

petitioner was initially appointed as a Music Teacher.

He has also stated that the petitioner was appointed

on 6.4.2009, purely on temporary basis, for one

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 15

academic session for which the petitioner has applied

and his tenure came to be over by 24.12.2009 and then

he again applied for the temporary employment and

.
he was also appointed on 14.2.2011 and remained in

.P
service till 23.12.2011. Again, the petitioner was

appointed on his application 13.2.2012 till 22 12.2012

H
and thereafter again he was appointed on 11.2.2013

of
till 3011.2013, but at no point of time, the petitioner

was appointed on regular post. The petitioner was

rt
appointed on temporary basis, though, he applied for

2-3 times and he was appointed on temporary basis

ou
only and he has no right in his favour. It has been

further argued that respondents No.1 to 3 are not

C

amenable of the writ petition of this Hon’ble Court and

h

as per the agreement, which was signed between the

petitioner and the respondents from time to time, the

ig

petitioner is bound by the agreement and no cause of

H

action lies in his favour.

17. To appreciate the argument of the learned

counsel for the parties, I have gone through the record

in detail.

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 16

18. The Rules of the respondents from

Administrative manual, which the petitioner has

produced in the Court is required to be reproduced, as

.
they are relevant for the adjudication of the present

.P
case.

19. Rule 9.17 of the Rules ibid says with

H
regard to the temporary appointments, which reads as

of
under:-

“9.17 TEMPORARY APPOINTMENT:

rt To meet exigencies,
contractual appointments are made by
temporary/
ou
the schools so that there may be no
disturbance in the course of the
academic session. Temporary
C

appointments are made for both teaching

and non-teaching staff members. From
the point of view of DAV, Temporary
h

appointments are of three types—(i)

ig

Temporary appointments up to 89 days,

(ii) Contractual appointment for one
academic session and (iii) Contractual
H

appointment for more than one academic

session but up to or less than three years.
No contractual appointment can be
extended beyond the expiry of contract
period. Contractual appointments can be
made only up to a maximum of three

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 17

years. Temporary appointments up to 89

days may be got approved at Chairman/
Regional Director level; and may later be
informed to the DAVCMC Office for
record. Contractual appointments for

.
.P
one session or upto three years can be
made only through the Adhoc Selection
Committee. If an incumbent is later

H
appointed on regular basis then at the
time of his/ her retirement/resignation/

of
voluntary retirement, the period of
temporary appointment is also
considered towards the qualifying
rt
service for calculation of gratuity subject
to the condition that there is no break in
ou
service between the period of temporary
appointment and joining on probation
basis. Only Casual Leaves, as admissible
C

under the rules, are granted during the

period of temporary/ contractual
appointment. Temporary/ Contractual
h

appointments may be made on a

ig

consolidated salary or on a pay-scale

with allowances, as deemed fit by the Ad
H

hoc Selection Committee. Budget

Provision must be made in the respective
session if the contractual appointments
are to be made for more than 89 days.

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 18

20. From this, it is clear that the temporary

appointment can be made up to 89 days or for one

academic session, but no contractual appointment can be

made for a period of more than 3 years. Admittedly, the

.
.P
petitioner has worked with the respondents for more than

three academic sessions. Though, as per the respondents,

H
he was appointed purely on temporary basis for each

session.

of
21. The law on the subject with regard to each

year appointment and brakes given to the temporary

rt
employee came for consideration of this Hon’ble High
ou
Court in a case titled Prem Chand and others versus

State of H.P. and another, reported in

1988(1)Sim.L.C.1, this Court while dealing in the similar

C

circumstances, has held as under:

“7……………. It is thus apparent that the

h

employment of workmen in a casual or

ig

temporary capacity for years with the

object of depriving them of the status and
H

privileges of permanent workmen is an

“unfair labour practice” entailing
prosecution of the employer, that is, the
head of the department, where no
different authority is prescribed.”

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 19

“9. For the foregoing reasons, it

appears to be expedient in the interest of
justice to direct the State Government to
review the case and to place on the
record of the case a fresh decision

.
.P
arrived at in accordance with law and in
light of the observations made
hereinabove on or before September

H
04,1986. Unless the decision is so
recorded within the time

of
aforementioned, the Court will proceed
to decide the case in accordance with
law. Meanwhile, however, the court
rt
directs
artificial
that
or
the
fictional
practice
breaks
of giving
at the
ou
interval of 90 days or at any other
regular interval(s) to the petitioners and
persons similarly situate and, indeed, to
C

all the daily wage employees in the

Forest Department of the State
Government, shall be forthwith
h

discontinued and such breaks, if any,

ig

administered in the past shall be

condoned. The petitioners will be paid
H

the salary and allowances, if any, for all

the days covered by such artificial or
fictional breaks from the dates of their
initial appointment and such payment
shall be made within six weeks from
today.”

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 20

22. Similarly, the Hon’ble Apex Court in a case

titled Rudra Kumar Sain versus Union of India

and others, AIR 2000 Supreme Court 2808, has held

.
as under:-

.P
“16. The three terms ‘ad
hoc’, ‘stop gap’ and ‘fortuitous’ are in

H
frequent use in service jurisprudence.
In the absence of definition of these

of
terms in the rules in question we have
to look to the dictionary meaning of

rt the words and the meaning commonly

assigned to them in service matters.
The meaning given to the expression
ou
“fortuitous” in Stroud’s Judicial
Dictionary is “accident or fortuitous
C

casualty”. This should obviously

connote that if an appointment is
made accidentally, because of a
h

particular emergent situation and

ig

such appointment obviously would

not continue for a fairly long period.
H

But an appointment made either

under Rule 16 or 17 of the
Recruitment Rules, after due
consultation with the High Court and
the appointee possesses the
prescribed qualification for such

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 21

appointment provided in Rule 7 and

continues as such for a fairly long
period, then the same cannot be held
to “fortuitous”. In Black’s Law

.
dictionary, the expression “fortuitous”

.P
means “occurring by chance”, “a
fortuitous event may be highly

H
unfortunate”. It thus, indicates that it
occurs only by chance or accident,
which could not have been reasonably

of
foreseen. The expression “adhoc” in
Black’s Law Dictionary, means
rt
“something which is formed for a
particular purpose”. The expression
ou
“stop-gap” as per Oxford Dictionary,
means “a temporary way of dealing
with a problem or satisfying a need”.
C

“18. In P. Ramanatha Aiyer’s

Law Lexicon (2nd Edition) the word ‘ad
h

hoc’ is described as “for particular

ig

purpose, Made, established, acting or

concerned with a particular and or
H

purpose’. The meaning of word

fortuitous event’ is given as ‘an event
which happens by a cause which we
cannot resist; one which is unforeseen
and caused by superior force, which it

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 22

is impossible to resist; a term

synonymous with Act of God.”

23. In the present case, the appointment was

.
not made for unforeseen cause, but was made

.P
actually for each academic session, which continued

for more than three years and could not be made

H
even as per the regulations of the respondents for

of
more than three years, meaning thereby that the

petitioner’s appointment for more than three years

rt
cannot be termed to be temporary at all.

24. The arguments of the learned counsel for

ou
the respondent that the respondents are not State

under Article 12 of the Constitution of India and

C

that the petition is not maintainable is already

settled by Hon’ble Supreme Court in a case titled

h

Ramesh Ahluwalia versus State of Punjab and

ig

others, (2012) 12 Supreme Court Cases 331, the

H

Hon’ble Supreme Court has held that in case

private body is performing public functions, which

are normally expected to be performed by the State

Authorities, the private body/ authority the State

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 23

under Article 12 of the Constitution of India. The

Hon’ble Apex Court has further held that the writ

is maintainable in the similar circumstances. The

.
relevant extract is reproduced as under:

.P
“12. We have considered the
submissions made by the learned

H
counsel for the parties. In our
opinion, in view of the judgment

of
rendered by this Court in Andi Mukta
Sadguru Shree Muktajee Vandas
Swami
rt Suvarna Jyanti Mahotsav
Smarak Trust there can be no doubt
that even a purely private amenable
ou
to the jurisdiction of the High Court
under Article 226 of the Constitution,
C

for issuance of a writ of mandamus.

Provided, of course, the private body
is performing functions which are
h

normally expected to be performed by

ig

the State authorities.

13. In the aforesaid case, this
H

Court was also considering a situation

where the services of a Lecturer had
been terminated who was working in
the college run by the Andi Mukta
Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 24

Smarak Trust. In those circumstances,

this Court has clearly observed as
under :
“20. The term “authority”

.
used in Article 226, in the context,

.P
must receive a liberal meaning unlike
the term in Article12. Article 12 is

H
relevant only for the purpose of
enforcement of fundamental rights
under Article 32. Article 226 confers

of
power on the High Courts to issue
writs for enforcement of the
rt
fundamental rights as well as non-
fundamental rights. The words “any
ou
person or authority” used in Article
226 are, therefore, not to be confined
only to statutory authorities and
C

instrumentalities of the State. They

may cover any other person or body
h

performing public duty. The form of

the body concerned is not very much
ig

relevant. What is relevant is the

nature of the duty imposed on the
H

body. The duty must be judged in the

light of positive obligation owed by
the person or authority to the affected
party. No matter by what means the
duty is imposed, if a positive

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 25

obligation exists mandamus cannot be

denied.

22. Here again we may point out

that mandamus cannot be denied on the

.
ground that the duty to be enforced is

.P
not imposed by the statute. Commenting
on the development of this law,

H
Professor de Smith states: “To be
enforceable by mandamus a public duty

of
does not necessarily have to be one
imposed by statute. It may be sufficient
rt for the duty to have been imposed
by charter, common law, custom or even
contract.” We share this view. The
ou
judicial control over the fast expanding
maze of bodies affecting the rights of the
C

people should not be put into watertight

compartment. It should remain flexible
to meet the requirements of variable
h

circumstances. Mandamus is a very wide

ig

remedy which must be easily available

‘to reach injustice wherever it is found.
H

Technicalities should not come in the

way of granting that relief under Article
226. We, therefore, reject the contention
urged for the appellants on the
maintainability of the writ petition.”

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 26

The aforesaid observations have

been repeated and reiterated in
numerous judgments of this Court
including the judgment in Unni

.
Krishnan and Zee Telefilms Ltd. brought

.P
to our notice by the learned counsel for
the Appellant Mr. Parikh.

H
14. In view of the law laid down in
the aforementioned judgments of this
Court, the judgment of the learned

of
Single Judge as also the Division Bench
of the High Court cannot be sustained on
rt
the proposition that the writ petition
would not be maintainable merely
ou
because the respondent institution is a
purely unaided private educational
institution. The appellant had
C

specifically taken the plea that the

respondents perform public functions,
h

i.e. providing education to children in

their institutions throughout India”.
ig

25. So, this Court finds that the writ

H

petition is maintainable against respondents No.3

to 5, as they are discharging public functions, which

are supposed to be discharged by the State and

respondents No.3 to 5 falls under definition of

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 27

State within Article 12 of the Constitution of India,

as the petitioner was working with the respondents

during the year 2009 till 2013. Hence, this Court

.
finds that the services of the petitioner were

.P
required by the respondents during all these years

and the respondents are required to follow their

H
Regulations, but by making appointment each year

of
(every academic session), the respondents are not

only savings their money for the winter months, but

rt
are also asking the petitioner to work against their

own Rules and Regulations, which provides that a

ou
temporary appointment cannot be allowed for more

than three years.

C

26. The net result of the above discussion

h

is that the action of the respondents in not

appointing the petitioner on regular basis is

ig

arbitrary, capricious and against confines of

H

legitimacy and requires to be set aside.

Resultantly, the petition is allowed and the

respondents are directed to allow the petitioner to

work on the same and similar terms and conditions,

::: Downloaded on - 06/05/2017 [Link] :::HCHP

 28

under which he was earlier working with them.

However, as the petitioner could not place before

this Court any document suggesting that he was

.
not working at any other place during the period

.P
under reference, so respondents are directed to

allow the petitioner to work on same terms and

H
conditions, he was working with them with all

of
consequential benefits including seniority and

regularization etc. etc. but without back wages.

27.
rt Consequently, the present writ

petition is allowed. All pending application(s), if

ou
any, shall also stand disposed of accordingly.
C

(Chander Bhusan Barowalia)

Judge
h

03.05.2017 ([Link])
ig
H

::: Downloaded on - 06/05/2017 [Link] :::HCHP