WP(C) 466/2020 IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) PRINCIPAL SEAT AT GUWAHATI WP(C) No. 466/2020 Abinash Kalindi, S/o Suresh Kalindi, Borborooah Tea Estate, PO-Borborooah, PS-Borborooah, Dist.-Dibrugarh, Pin-786007, Assam. ……Petitioner. -Versus- 1. The State of Assam, Represented by the Commissioner & Secretary to the Government of Assam, Education (Elementary) Department, Dispur, Guwahati-781006. 2. The Director of Elementary Education, Assam, Kahilipara, Guwahati-781019. 3. The Deputy Inspector of Schools, Dibrugarh District, Pin-782004. 4. The State Level High Power Committee, Represented by the Senior Most Secretary to the Govt. of Assam, Education Department, Guwahati, Pin-781006. 5. The District Scrutiny Committee, Represented by its Chairman cum Deputy Commissioner, Dibrugarh District, Pin-786002. 6. The Headmaster, GAHC010015632020 2026:GAU-AS:7229 WP(C) 466/2020 Borborooah Tea Estate L.P. School, Borborooah Block, Dibrugarh, Pin-786007. 7. Assistant Labour Commissioner, Government of Assam, Dibrugarh, 786008. 8. Borborooah Tea Estate, Assam Company India Limited, Dibrugarh, Pin-786007. ……Respondents. For the Petitioner : Ms. S. Sharma. ……Advocate. For the Respondents : Ms. S. Chutia, SC Elem. Edu., Mr. B. Sharma. ……Advocates. BEFORE HON’BLE MR. JUSTICE ROBIN PHUKAN Date(s) of Hearing :- 13.02.2026 Date on which judgment is reserved :- 13.02.2026 Date of pronouncement of judgment :- 25.05.2026 Whether the pronouncement is of the operative part of the judgment? :- N/A WP(C) 466/2020 Whether the full judgment has been pronounced? :- Yes JUDGMENT AND ORDER Heard Ms. S. Sharma, learned counsel for the petitioner. Also heard Ms. S. Chutia, learned standing counsel, Education (Elementary) Department, appearing for the respondent Nos.1—4 and Mr. B. Sharma, learned counsel for the respondent Nos.6 and 8. 2. In this petition, under Article 226 of the Constitution of India, the petitioner has prayed for issuing direction to the respondent authorities to verify and publish the compiled list of eligible employees for provincialilzation of service as Teacher/Tutor, under the provisions of the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 2017 (hereinafter referred to as the Act of 2017) and also challenged the order, dated 01.06.2018, issued by the Manager, Borborooah Tea Estate, Dibrugarh, whereby the appointment of the petitioner in Borborooah Tea Estate L.P. School, Dibrugarh, is kept in abeyance till further notice. 3. The background facts leading to filing of the present petition are briefly stated as under:- “The petitioner was serving as Assistant Teacher, since 2009, at Borborooah Tea Estate L.P. School, Dibrugarh, under the Borborooah Block, having its Cluster Code and name, as 181501008 and Barbaruah. The said school has fulfilled all WP(C) 466/2020 norms and standards under Sections 19 and 25 of the Right of Children to Free and Compulsory Education (RTE) Act, 2009 and its Rules, 2011. And there were, as many as 262 nos. of students (boys and girls) and it was imparting primary education from Class I to Class V. Thereafter, the labour union of the Tea Estate raised an objection in the year 2011, and the petitioner was not allowed to sign in the attendance register. The petitioner then approached the Assistant Labour Commissioner, Dibrugarh and finally, pursuant to the order passed by the Labour Commissioner, the petitioner was reappointed on 09.04.2018, and thereafter, vide impugned order dated 01.06.2018, the appointment order of the petitioner, dated 09.04.2018, was kept in abeyance, until further order. The said order was issued on the ground that the labour union had again raised an objection since the petitioner was appointed without undergoing any interview and written test. But, it is the case of the petitioner that he was appointed by the school authority in the year 2009, and accordingly, he was continuing in service and the order dated 01.06.2018, was passed without affording any opportunity of being heard to the petitioner. Further case of the petitioner is that the Government of Assam has initiated step to provincialize the venture educational institutions, under the provisions of the Act of 2017 and thereafter, step has been taken by the school authority to forward the necessary particulars of the teachers WP(C) 466/2020 and the school to the District Scrutiny Committee for its verification. Since the petitioner’s appointment order is kept in abeyance, therefore, his particulars of service would not be forwarded to the concerned authority, and thereby, the petitioner is deprived of from the benefit of provincialization. And being aggrieved, the petitioner has approached this Court by filing the present petition seeking the relief as aforesaid.” 4. The respondent No.2, the Director of Elementary Education has filed its affidavit-in-opposition, wherein a stand has been taken that the Government, vide Notification, dated 18.04.2023, issued under Memo No.E-293417/2-A, signed by the Secretary, Department of School Education, in the academic interest of the tea garden community, provincialized 419 nos. of tea garden managed L.P. Schools with 2(two) posts of teachers, for each of the 419 L.P. Schools. It is also stated that the petitioner was working as Siksha Karmi in the Sanjyogi Siksha Kendra (SSK) centre under SSA, Assam, which is a temporary engagement and was not working as a teacher in the said school and as per the report of the District Elementary Education Officer (DEEO), Dibrugarh, the said SSK centre has been closed since 2014, and that there is no provision for provincialization of teachers of Tea Garden Managed Schools and moreover, the petitioner was not working as a teacher, so the claim of provincialization of the service of the petitioner, cannot be considered. WP(C) 466/2020 5. WP(C) 466/2020 5. The respondent No.2 has also filed affidavit-in-reply to the additional affidavit filed by the petitioner on 05.02.2026, regarding maintainability of the writ petition on the ground that the petitioner was never engaged/appointed by the Director of Elementary Education and that the schools under the tea garden are managed by Tea Garden authority and their services do not fall under the purview of the Department of School Education, Govt. of Assam, before 18.04.2023. But, on 18.04.2023, the Secretary to the Department of School Education had issued a notification, whereby in the interest of tea garden community, 419 nos. of tea garden schools, with 2 posts of teachers for each 419 L.P. Schools, have been provincialized and that though Gunostav is organized in the said Schools, the said Gunostav is an academic evaluation programme with an object to assess and enhance educational standards in Assam, which applied to all the Government provincialized schools and tea garden managed schools of Assam and therefore, merely participation of students in Gunostav does not give any right to the petitioner to claim provincialization of service. 6. The respondent No.6, the Headmaster of the Borborooah T.E. L.P. School has filed his affidavit-in-opposition, wherein he has taken a stand that the petitioner was appointed without any interview and written test and he was appointed only upon the direction of the Assistant Labour Commissioner, Dibrugarh and as such, the workers, members of All Assam Tea Tribes Students Association (ATTSA), Assam Chah Mazdoor Sangha (ACMS), Assam Chah Karmachari Sangha (ACKS) of the tea estate, vehemently WP(C) 466/2020 opposed and threatened to launch agitation programmes to the extent of closing down the Tea Estate and as such, under apprehension and break down of law and order situation in the garden and under compelling circumstances, the management took step to keep in abeyance the appointment of the petitioner. 7. 7. In the affidavit-in-opposition of the respondent No.8, it has taken a stand that the appointment of the petitioner was kept in abeyance as he was appointed without holding any interview and written test and as such, the workers, members of All Assam Tea Tribes Students Association (ATTSA), Assam Chah Mazdoor Sangha (ACMS), Assam Chah Karmachari Sangha (ACKS) of the tea estate, vehemently opposed and threatened to launch agitation programmes to the extent of closing down the Tea Estate and on such apprehension and break down of law and order situation in the garden, the appointment was kept in abeyance. However, it has denied that the petitioner was appointed in the year 2009 and that the respondent No.8 has no objection regarding continuation of service of the petitioner in the school, but is seeking protection only and even the petitioner also admits the same, and that the various organizations of the garden are opposing his appointment as he was appointed without holding any interview and written test by the prior management, but only on the direction of the Assistant Labour Commissioner, Dibrugarh and that two teachers have already been deputed by the respondent Nos.1—5 and their salaries are paid by the respondent No.1, and rest are maintained by the management of the respondent No.8 and that the present management has also WP(C) 466/2020 never raised any objection to the appointment of the writ petitioner as teacher in the school, but both sides are under fear and hence, the present petitioner has approached this Court seeking appropriate relief and that the respondent No.8 has no objection to the same, but apprehending of any untoward situation which may arise in the garden have taken the position. 8. The petitioner has filed his reply to the affidavit-in-opposition filed by the respondent No.8, denying the statements and averments made therein. 9. Ms. Sharma, learned counsel for the petitioner, submits that though a question of maintainability of the petition arises, yet, the present writ petition is very much maintainable and that the petitioner had filed one RTI application on 14.12.2023 regarding the status of the school run by the respondent No.8 and the Block Elementary Education Officer cum BMC, Barbaruah, vide letter dated 12.02.2024 intimated that Borborooah Tea Estate L.P. School was provincialized vide Government Notification No.E-293417/2-A, dated Dispur, the 18th April, 2023, but the teachers engaged by tea garden management are not provincialized and that being so, the question of non-maintainability of the writ petition, against a private tea company, does not arise. She also submits that the petitioner was appointed by the garden authority in the year 2009, and he rendered service till 2011 and thereafter, having been opposed by some of the organizations, the petitioner approached the Assistant Labour Commissioner and pursuant to the order being passed by WP(C) 466/2020 the Assistant Labour Commissioner, Dibrugarh, the petitioner was re-engaged on 09.04.2018. But, vide impugned order dated 01.06.2018, the appointment order dated 09.04.2018, has been kept in abeyance. She further submits that the said order was passed by the authority without affording any opportunity of being heard to him. Ms. Sharma also submits that the school has been provincialized by the State respondents and as the appointment order of the petitioner was kept in abeyance, his name could not be forwarded by the respondent authority and under such circumstances, the respondent authorities may be directed to verify and publish the list of eligible employees for provincialization of their services as Tutors/Teachers and also to set aside the impugned order dated 01.06.2018. 10. Ms. Chutia, learned standing counsel for respondents in Elementary Education Department, submits that earlier the school was managed by the garden authority and subsequently, in view of the order dated 18.04.2023, issued under Memo No.E-293417/2-A, the Government of Assam has provincialized 419 nos. of tea garden managed L.P. Schools with 2 nos. of teachers for each of the 419 nos. of L.P. Schools and that the service of the petitioner could not be provincialized as he was not serving at the relevant point of time and earlier he was appointed as Siksha Karmi in the Sanjyogi Siksha Kendra under SSA, which was a temporary engagement and as such, the present petition is not maintainable and therefore, it is contended to dismiss the same. WP(C) 466/2020 11. Mr. Sharma, learned counsel for the respondent Nos.6 and 8 also submits that the petition is not maintainable and that the school is being run by the management of a private tea company and in support of his submission he has referred following decisions of this Court:- (i) Harbansh Ojha vs. State of Assam, reported in 2021 (1) GauLT 119; (ii) Ramani Kalita vs. State of Assam and others, reported in 2019 (2) GauLT 767; and (iii) Mukti Nath Gogoi and others vs. State of Assam and others, reported in 2022 (2) GauLT 120. 11.1. Further, he submits that the petitioner was appointed pursuant to the order of the Assistant Labour Commissioner, Dibrugarh and after his appointment, several organizations raised objections as he was appointed without holding any interview or written test and apprehending law and order situation his appointment order has been kept in abeyance and under the given facts and circumstances, Mr. Sharma has contended to dismiss the petition. 12. Having heard the submission of learned counsel for both the parties, this Court has carefully gone through the petition and the documents placed on record and has also gone through the decisions referred by Mr. Sharma, learned counsel for the respondent Nos.6 and 8. WP(C) 466/2020 13. The basic facts here in this case are not in dispute. Till 18.04.2023, the school was managed by the respondent No.8, which is a private tea company. Further, it appears that on 18.04.2023 the State of Assam had provincialized altogether 419 numbers of schools, with two posts of teachers, each, in all the 419 nos. of schools and the services of rest of existing teachers have to be managed by the tea garden management and in that view of the matter, the argument advanced by Ms. Chutia, learned standing counsel for the respondent authorities being respondent No.1-5, and also the submission of Mr. B. Sharma, learned counsel for the respondent No. 6 to 8 that the writ petition is not maintainable against a privately managed tea garden authority, left this Court unimpressed. 14. Of course, the petition was filed in the year 2020, and at that time the said school was being managed by the private respondent No.8. But, during all these years, the challenge regarding maintainability of the petition, has not been raised and attended to. Now, indisputably, the school has already been provincialised and taken over by the State respondents, w.e.f. 18.04.2023, the issue of maintainability of the petition becomes stale and has spent its force. 14.1. Even for the sake of argument, if it is accepted that at the time of filing the writ petition the school was not provincialised, then also the school being run by the respondent No.8 was discharging a public function by imparting education, under the Right to Education Act, 2009 which guarantees free and compulsory WP(C) 466/2020 education to all children aged 6 to 14 in India, making education afundamental right under Article 21A of the Constitution. 14.2. The Head Master of the School is arrayed herein as respondent No.6. If the private institution (e.g., school, university, or private body performing a public-law function) acts in a manner resembling a State/quasi-statutory authority and violates natural justice (no show-cause, no opportunity to be heard), a writ petition is maintainable, especially where fundamental rights or public interest elements are involved. Reference in this context can be made to a decision of Hon’ble Supreme Court in S. Shobha vs. Muthoot Finance Ltd., SPECIAL LEAVE PETITION (C) NOS.2625-2627 OF 2025, (Arising out of Diary No(s). 1061/2025), wherein Hon’ble Supreme Court has upheld that a writ petition under Article 226 is not maintainable against a private NBFC (Muthoot Finance) for issues relating to a gold loan/auction. A private financier does not perform a public function. This implies that if a private entity performs a public function, the writ petition is maintainable. 14.3. In the case of Binny Ltd. and another vs. V. Sadasivan and others, reported in (2005) 6 SCC 657, Hon’ble Supreme Court held that a writ (especially mandamus) is not maintainable against a purely private company for employment termination under a private contract. There must be a public law WP(C) 466/2020 element. The form of the body is less important than the nature of the duty. Relavant paras are extracted herein below:- ‚11. Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and the decision sought to be corrected or enforced must be in discharge of a public function. The role of the State expanded enormously and attempts have been made to create various agencies to perform the governmental functions. Several corporations and companies have also been formed by the Government to run industries and to carry on trading activities. These have come to be known as public sector undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court took the view that many of these companies and corporations could come within the sweep of Article 12 of the Constitution. At the same time, there are private bodies also which may be discharging public functions. It is difficult to draw a line between public functions and private functions when they are being discharged by a purely private authority. A body is performing a ‚public function‛ when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise WP(C) 466/2020 public functions when they intervene or participate in social or economic affairs in the public interest. In a book on Judicial Review of Administrative Action (5th Edn.) by de Smith, Woolf & Jowell in Chapter 3, para 0.24, it is stated thus: ‚A body is performing a ‘public function’ when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. This may happen in a wide variety of ways. For instance, a body is performing a public function when it provides ‘public goods’ or other collective services, such as health care, education and personal social services, from funds raised by taxation. A body may perform public functions in the form of adjudicatory services (such as those of the criminal and civil courts and tribunal system). They also do so if they regulate commercial and professional activities to ensure compliance with proper standards. For all these purposes, a range of legal and administrative techniques may be deployed, including rule making, adjudication (and other forms of dispute resolution); inspection; and licensing. Public functions need not be the exclusive domain of the State. Charities, self-regulatory organisations and other WP(C) 466/2020 nominally private institutions (such as universities, the Stock Exchange, Lloyd's of London, churches) may in reality also perform some types of public function. As Sir John Donaldson, M.R. urged, it is important for the courts to ‘recognise the realities of executive power’ and not allow ‘their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted’. Non-governmental bodies such as these are just as capable of abusing their powers as is Government.‛ 29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a WP(C) 466/2020 public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsbury's Laws of England, 3rd Edn., Vol. 30, p. 682, ‚1317. A public authority is a body, not necessarily a county council, municipal corporation or other local authority, which has public or statutory duties to perform and which perform those duties and carries out its transactions for the benefit of the public and not for private profit.‛ There cannot be any general definition of public authority or public action. The facts of each case decide the point. 14.4. Again in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others vs. V.R. Rudani and others, reported in (1989) 2 SCC 691, Hon’ble Supreme Court has held that writ of mandamus can issue against a private body (like a trust running an aided college) if it performs a public duty and owes a positive obligation to WP(C) 466/2020 the affected party. The duty need not be statutory, but must have a public character. Relevant paragraphs are extracted herein below:- ‚15. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants trust was managing the affiliated college to which public money is paid as government aid. Public money paid as government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. [See The Evolving Indian Administrative Law by M.P. Jain (1983), p. 226] So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of WP(C) 466/2020 this relationship, mandamus cannot be refused to the aggrieved party. ………………… ……………….. 22. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: ‚To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.‛ [Judicial Review of Administrative Action, 4th Edn., p. 540] We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available ‚to reach injustice wherever it is found‛. 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. 14.5. In the case in hand, nowhere it is disputed that the School being maintained by respondent No.8, has not been performing a public law function or its action has no public law consequence and that the principles of natural justice (e.g., no notice, no hearing, bias, or arbitrary action) are not violated. Therefore, the decision WP(C) 466/2020 referred by Mr. Sharma, learned counsel for the respondent No.6 and 8 would not come into his assistance. 15. From the contention being made by the petitioner, it becomes apparent that the petitioner was appointed earlier in the year 2009, in the said school as teacher. He continued in the said capacity till 2011, in which year some of the organizations have raised objections and he was not allowed to sign the attendance register. Then, the petitioner approached the Assistant Labour Commissioner, Dibrugarh and pursuant to the order being passed by the Assistant Labour Commissioner, Dibrugarh, he was reappointed on 09.04.2018. And indisputably, the said order is being kept in abeyance, vide the impugned order dated 01.06.2018, on the ground that some of the organizations again raised objection to the appointment of the petitioner and then keeping in mind the law and order situation, the respondent No.8 has kept the same in abeyance. But, admittedly, and as per the averment made in the affidavit, the respondent authority of the tea garden, being respondent No.8, has no objection in continuation of his service of the petitioner in the said school. 16. It is also not in dispute that the petitioner was appointed as per the order of the Assistant Labour Commissioner. But, the said order of the Assistant Labour Commissioner has not been challenged by any of the respondents. Unless the said order is challenged and set aside, the appointment of the petitioner cannot WP(C) 466/2020 be said to be illegal. And over and above his appointment order has not been challenged by anybody. 17. In view of the stand taken by the respondent No.8, in paragraph No.7 of the affidavit, dated 20.11.2023, wherein a categorical statement has been made that the respondent No.8 has not objected regarding continuation of service of the petitioner in the said school, but seeking protection only and even the petitioner has admitted that various organizations of the garden are opposing his appointment as he was not appointed on any interview and written test by the prior management, but only on the direction of the Assistant Labour Commissioner, Dibrugarh, this Court is of the view that keeping in abeyance of the appointment of the petitioner vide impugned order, dated 01.06.2018, that too without affording any opportunity of being heard to the petitioner, to the considered opinion of this Court, has violated the principle of natural justice. And in that view of the matter, the impugned order, dated 01.06.2018, requires interference of this Court. And accordingly, the same stands set aside and quashed. 18. Consequently, the respondent No.8 shall allow the petitioner to continue his service as teacher in the said school. In the event of any objection, by any of the organization, the respondent No.1 shall provide police help to the respondent No. 6 and 8 and also to the petitioner. 19. Since the name of the petitioner could not be considered on account of being in service at the relevant point of time, as WP(C) 466/2020 submitted by Ms. Chuita, learned standing counsel for the respondent No. 1-5, the same may be considered as and when vacancy arises in near future. 20. In terms of above this writ petition stands disposed of. The parties have to bear their own costs. Comparing Assistant Sd/- Robin Phukan JUDGE