B. LAMARE, J.

(1.) Heard Mr S. Dutta, learned counsel for the petitioner and Mr B.N. Sarma, learned counsel for the respondents.

(2.) The petitioner was appointed in the year 1986 as part-time Lecturer in the Public College of Commerce, Dimapur. By Resolution of the Governing Body of the College held on 5.5.1990, the petitioner was given an option to work either as permanent staff or to quit the College. The petitioner gave his option that he was willing to serve the College as regular Lecturer on 1.6.1990. By another emergent meeting of the Governing Body of Public College of Commerce, Dimapur held on 30.7.1990, another Resolution No. 5 was passed which reads as follows:-

"Appointment of the following three part- time Lecturers shall be regularised on whole time basis to be effective from 1st August 90. 1. Mrs. Manisha Sen - Deptt. of Economics. 2. Shri D. Roy - Deptt. of Commerce. 3. Shri S.N. Singh - Deptt. of Commerce."

(3.) The petitioner thereafter, received a letter dated 4.12.1992 issued by respondent No. 1 intimating the petitioner to appear before the Selection Board for final selection as full time Lecturer of the College. The said letter was issued in response of the representation dated 9.9.1992 submitted by the petitioner to the Governing Body of the College. Against the .said letter, the petitioner filed writ petition Civil Rule No. 9(K) of 1993 before this Court, and this Court in para 5 of the judgment held as follcows:-

"However, in the present case after the recommendation for regularisation was made by a resolution of the Governing Body, an order of regular appointment was duly issued on 24.9.90 appointing the petitioner on regular basis with effect from 1st August, 1990. The respondents have not taken any objection Against the order of regular appointment at any time. If that is so, in my view, to allow the petitioner to face another interview before a Selection Board would not be reasonable. In my view the respondents in such a situation should be deemed to have accepted the recommendation made by the Governing Body by Resolution No. 5 of 5.5.90."

(4.) Against the said judgment and order of this Court passed in the said Civil Rule No. 9(K)93, a writ appeal beingNo. 448 of 1995 was preferred before the Division Bench of this Court. The learned Division Bench by judgment and order dated 21.6.1996 has held that the writ petition itself was not maintainable on the ground that there was no averment in the writ petition to the effect that the College is a Government Aided College or receiving grants from the Government to invoke the writ jurisdiction of the Court.

(5.) After the said judgment and order of the kamed Division Bench of this Court, the respondents issued a letter dated 20.9.96 asking the petitioner to join as full time Lecturer through proper selection procedure. The respondent also issued advertisement dated 20.9.1996 inviting application for the post of Lecturer in Commerce and also Economics, and that, the applications should read the respondent No. 1 on or before 12.10.1996. The petitioner thereafter submitted a representation dated 23.9.1996 stating therein that his appointment was already regularised and under such circumstances, he need not be selected again for the said post by a Selection Board. But his application was not considered.

(6.) The petitioner therefore, approached this Court by this writ petition challenging the said letter dated 20.9.1996. Annexure-15 to the writ petition, advertisement dated 20.9.1996, Anenxure-16 to the writ petition, and letter dated 14.11.1996, Annexure-22 to the wit petition. This Court, by order dated 5.11.1996 suspended the operation of the advertisement dated 20.9.1996 and directed that no appointment and/or interview shall be held on the strength of the said advertisement. In the same order, this Court also held that the learned counsel for the petitioner shall satisfy the Court that this writ petition is maintainable.

(7.) In view of the said order passed by this Court, the question that arises to be deciided first is that, whether this writ petition is maintainable or not in so far as it relates to the respondents. In para 2 of the petition., the petitioner has stated that the Chairman of the Managing Committee is the Deputy Commissioner of Kohima, and thai; the Governing Body of the College has to be approved by the Government of NagalJand. The College is also receiving grants from the Government for its maintenance and administration. The College also submits the Annual Report of income and expenditure to the Government and it is also affiliated to the Nagaland University at Kohima.

(8.) In the affidavit-in-reply, the petitioner further states that the College is imparting education in the State in which the fundamental rights of the citizens and the teachers to teach in the educational institutions, and therefore, there is an element of public interest in the performance of its duty as a College:. The petitioner also states that the College Eaters to the needs of the educational opportunities which has an element of public interest, and as such, even though it is a private College, it has been receiving grants and imparting education according to the Government policy, and a writ under Article 226 is maintainable against the respondents. In support of the above contentions, the petitioner also annexed certain documents to show that the College is receiving grants from the State Government.

(9.) In the case of K. Krishnamacharyulu and others, appellant-Vs-Sri Venkateswaran Hindu College of Engineering and another, respondents, reported in AIR 1998 SC 295 [LQ/SC/1997/345] , the Apex Court has held as follows:-

"We are of the view that the State has obligation to provide facilities and opportunities to the people to avail of the right to education. The private institutions cater to the needs of the educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the orders issued by the Government, The question is as to which forum one should approach. The High Court has held that the remedy is available under the Industrial Disputes Act. When an element of public interest is created and the institution is catering to that element, the teacher, the arm of the institution is also entitled to avail of the remedy provided under Article 226; the jurisdiction part is very wide. It would be different position, if the remedy is a private law remedy. So, they cannot be denied the same benefit which is available to others. Accordingly, we hold that the writ petition is maintainable. They are entitled to equal pay so as to be on par with Government employees under Article 39(d) of the Constitution."

(10.) In another case of Unni Krishnan, J. P. and others, petitioners-Vs-State of Andhra Pradesh and others, respondents, reported in (1993) 1SCC 645 in para 76, 77 and 79, the Apex Court has held as follows:-

"76.Applying these tests, we find it impossible to hold that a private educational institution either by recognition or affiliation to the University could ever be called an instrumentality of State. Recognition is for the purposes of conforming to the standards laid down by the State. Affiliation is with regard to the syllabi and the courses of study. Unless and until they are in accordance with the prescription of the University, degrees would not be conferred. The educational institutions prepare the students for the examination conducted by the University. Therefore, they are obliged to follow the syllabi and the courses of the study. 77.As a sequel to this, an important question arises: what is the nature of functions discharged by these institutions They discharge a public duty. If a student desires to acquire a degree, for example, in medicine, he will have to route through a medical college. These medical colleges are the instruments to attain the qualification. If, therefore, what is discharged by the educational institutions is a public duty, that requires duty to act fairly. In such a case, it will be subject to Article 14. 78.XXXXXXXX 79.The emphasis in this case is as to the nature of duty imposed on the body. It requires to be observed that the meaning of authority under Article 226 came to be laid down distinguishing the same term from Article 12. Inspite of it, if the emphasis is on the nature of duty on the same principle it has to be held that these educational institutions discharge public duties. Irrespective of the educational institutions receiving aid it should be held that it is a public duty. The absence of aid does not detract from the nature of duty."

(11.) In another case, judgment rendered by this Court in Parimal Chakraborty, petitwner-Vs-State of Meghalaya and Ors., respondents, reported in 2000(3) GLT 441, this Court has held in para 11 and 12 as follows:-

"11 .It would, therefore, appear that a private educational institutions imparting education to tb; students is discharging the functions of the State. It is a public duty and writ would lie against such institutions. In K. Kirishnamacharyulu and others (supra), teachers of the private educational institutions have been granted relief under Article 226 for parity in respect of pay. When the teachers of a public educational institutions are entitled to avail remedies under Article 226 for parity in pay, there cannot be any reason for debarring ,them or disqualifying them from getting equal protection of laws in respect of their service cccnditions. If a teacher in a private institutions receiving grant is met with unjust or unfair treatment or has been denied natural justice to the detriment of his service career, he will certainly be entitled to the equal protection of] the laws as envisaged under Article 14.

12. The teachers of educational institutions established under statutory provisions or under the control of State are eittitled to vindicate their grievances availing remedies under the Article 226; therefore, there must exist justifiable reasons for refusal of the same to the teachers of private institutions. Non-availability of any legislative shield cannot be criterian for such refusal. It is for this reason the Supreme Court in K. Kirishnamacharyulu and others (supra) while giiving effect to an executive order held that the writ is maintainable. This decision of the Supreme Court has to be read in a larger amplitude."

(12.) Coming to the instant case, it is amply clear that the College is imparting education to the students in general, and that it caters to the need of the public thereby element of public interest is involved in the performance of its duties towards the public at large.

(13.) The College is also receiving grant-in- aid from the State Government. From the records it is also seen that the, students studying in the College are receiving scholarships from the State Government for pursuing of their studies, thus public money is involved in the education process of children in the College.

(14.) In view of the facts and circumstances of the case as discussed above and keeping in mind of the law laid down by the Apex Court in the above decisions, this Court is of the view that the petition is maintainable.

(15.) The next point for consideration is thai, whether the petitioner after he was asked to extend his option as to whether he was willing either as permanent staff or to quit the College The petitioner opted to serve the College as regular Lecturer. It is on the basis of the sard offer and option made by the petitioner that the Resolution No. 5 was passed in an emergent meeting of the Governing Body held on 30.7.90, and that the petitioner was informed by letter No. PCC/2/DR/90, dated 24.9.90 that his service was regularised w.e;.f.

Office of the Principal

Public College of Commerce

Post Box No. 85

Dimapur:Nagaland

Ref: No. PCC/2/DR/90 Date: 24.9.90

To

Sri Dipankar Roy, M.Com,

Lecturer in Commerce,

Public College of Commerce,

Dimapur.

Sub: Appointment as Lecturer on whole-time basis. Dear Sri Roy,

This is to inform you that your service in the College as Lecturer in Commerce, have been regularised on whole-time basis with effect from 1st Aug 90 as per Resolution No. 5 of the Governing Body of the College, adopted in its meeting held on 30th July 90.

The pay-scale fixed for a whole-time Lecturer, as per G.B. Resolution No. 4, dated 19.9.90, is as follows:-

Rs.2000-50-2200-EB-65-2720-EB-80-3600.

Yours faithfully,

Sd/- B.Bhattacharjee,

Act.Principal & Secretary

(SEAL)

(16.) A bare perusal of the above appointment letter, the petitioners service was duly regularised on whole-time basis on the basis of the Resolution No. 5 passed by the Governing Body of the College held on 30.7.1990. There was no objection raised by the respondents regarding the regularisation of the services of the petitioner. The respondents, on the other hand were trying to circumvent the matter by asking the petitioner again to appear the selection test and also by issuing advertisement for the same post to which the petitioner was asked to apply. This action of the respondents amounts to deprivation of the right of the petitioner to which he was already given by the said resolution of the Managing Committee and appointment letter issued thereunder. The action, therefore, in my considered view is not reasonable to the extent that the petitioner cannot be asked to appear for selection to a post to which he was already regularised by the Governing Body of the College which is admittedly the competent authority to do so. It is not the case of the respondents that the petitioners service needs to be regularised by some other authority. Even if the selection is to be made it is subjected to acceptance by the-Govening Body of the College. Therefore, it is admitted position that the Governing Body is the sole authority for appointment and regularisation of service of any Lecturer in the College.

(17.) In the instant case, the regularisation of service was already completed by the Governing Body through its selection, hence to make the petitioner to submit himself to another selection test will be unjust and unfair.

(18.) It is also noticed that in the order dated 5.11.1996 passed by this Court in Civil Rule 5434 of 1996, the advertisement dated 20.9.96, Annexure-16 to the writ petition has been suspended, and that no appointment and/or interview shall be held on the strength of the said advertisement. This order is still in force. That being the position, the petitioner is deemed to have been in service as a regularised Lecturer in the College.

(19.) In view of the observations and directions made above, this Court is of the view that the petitioner cannot be subjected to any fresh selection since his service is already regularised. Consequently, the letter dated 20.9.96, Annexure-15 directing the petitioner to go through selection procedure, the letter dated 20,9.96, Annexure-16 advertising for the post of Lecturer in Commerce, and the letter dated 14.11.96 stands set aside and quashed.

(20.) It is further directed that if the petitioner is no more in service of the College, the respondents are directed to reinstate the petitioner forthwith. However, if the petitioner is out of service from 14.11.1996, he shall not be entitled to any back wages but shall be entitled to other benefits permissible under the rules.

(21.) The petition is therefore, allowed. However, considering the facts and circumstances of the case, there shall be no order as to cost.