Abinash Kalindi vs The State Of Assam And 7 Ors.
- Court
- Gauhati High Court
GAHC010015632020
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
2026:GAU-AS:7229
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,
WP(C) 466/2020 Page 1 of 21
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 Page 2 of 21
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 Page 3 of 21
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 Page 4 of 21
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.
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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 Page 6 of 21
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. 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 Page 7 of 21
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
th
Dispur, the 18 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 Page 8 of 21
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 Page 9 of 21
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 Page 10 of 21
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 Page 11 of 21
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 Page 12 of 21
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 Page 13 of 21
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 Page 14 of 21
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 Page 15 of 21
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 Page 16 of 21
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 Page 17 of 21
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 Page 18 of 21
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 Page 19 of 21
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 Page 20 of 21
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.
Sd/-
Robin Phukan
Comparing Assistant
JUDGE
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