Research › Search › Judgment

Rajasthan High Court · body

2004 DIGILAW 1779 (RAJ)

Fateh Chand Dammani Balika Vidya Mandir v. Rajasthan Non-Government Education Institutions Tribunal, Jaipur

2004-12-13

SHIV KUMAR SHARMA

body2004
Judgment S.K. Sharma, J.-The petitioner (herein after described as ‘Institution’) seeks to quash the Judgment dated January 8, 1996 (Annex 19) of the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short ‘Tribunal’) whereby the application submitted by respondents No. 2 & 3 under Section 21 of the Rajasthan Non-Government Educational Institution Act, 1989 (for short ‘1989 Act’) was allowed and institution was restrained from terminating the services of respondents No. 2 & 3 without following the procedure mandated under Section 18 of the 1989 Act and Rule 39 of the Rajasthan Non-Government Educational Institutions Rules, 1993 (for short ‘1993 Rules’) 2. The Institution appointed respondents No. 2 & 3 as part time teacher temporarily in the year 1993. In order to fill those two posts on regular basis interviews for selection were held on February 15, 1995. The respondents No. 2 & 3 appeared in the interview alongwith other candidates but they were not found meritorious and two other meritorious candidates namely Narendra Kaur and Sashi Bhalla were selected against those two posts on which respondents No. 2 & 3 were temporarily appointed. Respondents No. 2 & 3 approached the Tribunal on the ground that compliance of Section 18 and Rule 39 was mandatory and services of respondents No. 2 & 3 could not have been terminated without making compliance of Section 18 and Rule 39. 3. I have heard the submissions advanced before me and carefully scanned the material on record. 4. Having analysed the material on record, I find that this writ petition involves the elements of Articles 226 and 227 of the Constitution. Learned Tribunal not only ignored the conduct of respondents No. 2 & 3 but did not proceed within its parameters. 5. A temporary employee may compete alongwith others for regular selection but if he is not get selected he has to give way to the regularly selected candidate. This legal position was indicted in State of Haryana vs. Piara Singh, AIR 1992 SC 2130 and following observations were made:-“The normal rule is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such situation, effort should always be to replace such an ad hoc/temporary employee by a regularly selected employees as early as possible. Such a temporary employee may also compete alongwith others for such regular selection/ appointment. In such situation, effort should always be to replace such an ad hoc/temporary employee by a regularly selected employees as early as possible. Such a temporary employee may also compete alongwith others for such regular selection/ appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc temporary employee.” 6. The respondents No. 2 & 3 participated in the selection process knowing fully well that if they did not get selected they had to give way to the regularly selected candidates. Undeniably Narendra Kaur and Sashi Bhalla secured more marks than respondents No. 2 & 3 and, therefore, Narendra Kaur and Shashi Bhalla were rightly appointed on the posts held by respondents No. 2 & 3. Since, respondents No. 2 & 3 were estopped by their conduct, protection granted to the employees of Educational Institutions under Section 18 and Rule 39 was not available to them. 7. Learned Counsel for respondents No. 2 & 3, vehemently contended that if statute prescribes a procedure for doing a thing, that thing has to be done according to that procedure. (Vide Haresh Dayaram Thakur vs. State of Maharashtra, 2000 WLC (SC) Civil 486). Since, the respondents No. 2 & 3 themselves abandoned the protection granted to them by Section 18 and Rule 39, by taking part in regular selection, ratio indicted in Haresh Dayaram Thakur’s case is not applicable. 8. The next contention of learned Counsel for respondents No. 2 & 3 is that two more posts were vacant, therefore, till those posts were filled the service of respondents No. 2 & 3 could not be terminated. I find no merit in this contention, since from the letter of District Education Officer, Bikaner dated March 28, 1995 (Annex13) it appears that two posts were reserved for the SC/ST candidates. 9. Learned Counsel for respondents No. 2 & 3 lastly contended that even before declaration of the result the respondents No. 2 & 3 had approached the Tribunal, therefore, the mandate of Section 18 of 1989 Act and Rule 39 of 1993 Rules ought to have been followed. I am not impressed with the submission. 9. Learned Counsel for respondents No. 2 & 3 lastly contended that even before declaration of the result the respondents No. 2 & 3 had approached the Tribunal, therefore, the mandate of Section 18 of 1989 Act and Rule 39 of 1993 Rules ought to have been followed. I am not impressed with the submission. The respondents No. 2 & 3 after appearing in the interview for regular selection were estopped by their conduct from seeking protection under Section 18 of 1989 Act and Rule 39 of 1993 Rules. 10. As a result of the above discussion, I allow the writ petition and set aside the impugned order dated January 8, 1996 (Annex19)