JUDGMENT 1. - Heard learned counsel. 2. This writ petition is directed against the order of Rajasthan Non-Government Educational Institution Tribunal dated 30.04.1996 allowing the application filed by the respondent Sandeep Kumar holding that the termination of petitioner-teacher w.e.f. 12.05.1994 was illegal and he would be reinstated In service of the present petitioner Institution known as Shri Sanatan Dharam Balika Senior Secondary School, B-Block, Sriganganagar. 3. The case of respondent Sandeep Kumar was that he was appointed as a teacher in Mathematics subject in the petitioner School initially on 24.10.1991 for a fixed salary of Rs. 1000/- p.m. & after the end of session, for summer vacations he was not paid salary but on reopening of the session in the year 1992 he was again appointed as Teacher and worked for the whole session of 1992-93 and again for the summer vacation of 1993-94 he was not paid any salary but again when the session reopened in 1993 in July 1993 he was appointed and on 12.05.1994 at the end of session he was terminated without any order and without any notice or salary in lieu of notice and thus his termination was illegal and contrary to the provisions of the Rules of 1993 framed under 1989 Act applicable to the Non-Government Educational Institutions. The Tribunal by impugned order allowed the application of the respondent-teacher and held that the termination w.e.f. 12.05.1994 was illegal and contrary to Rule 39 of the said Rules of 1993 as neither any notice nor salary in lieu of notice for one month was paid to the respondent teacher. 4. Mr. S.L. Jain appearing for the petitioner-institution vehemently submitted that the petitioner was appointed for fixed terms while ~ session of the school was working and since admittedly he was not paid airy salary for summer vacation period, by efflux of time his services came to an end w.e.f. 12.05.1994 with the end of session for the year 1993-94. He further submitted that in pursuance of advertisement issued for undertaking regular selection process for appointment of teacher by petitioner Institution on 02.06.1994, in the first instance by advertisement dated 02.06.1994 (Annex. 2) and again on 18.07.1994 (Annex. He further submitted that in pursuance of advertisement issued for undertaking regular selection process for appointment of teacher by petitioner Institution on 02.06.1994, in the first instance by advertisement dated 02.06.1994 (Annex. 2) and again on 18.07.1994 (Annex. 4) the petitioner himself applied for being appointed as teacher in the said school and even though he was not selected in the said selection process, he again applied in September, 1994 for being made regular on the basis of services rendered to the said school for the aforesaid period from 1991 to 1994 and, therefore, having failed in the selection process, the respondent cannot challenge the selection of other candidates in pursuance of aforesaid advertisements and he cannot be said to have been terminated on 12.05.94 and as a matter of fact his term of appointment came to an end by efflux of time on 12.05.1994 with the end of session. The Tribunal has erred in directing reinstatement and further directing that he will be treated as Gr. III teacher w.e.f. 19.05.1994 and would be entitled to consequential benefits as such. 5. Mr. Jain relying on decision of this Court in case of S.S. Jain Subodh Shiksha Samiti, Subodh College, Rambagh Circle, Jaipur v. The Rajasthan Non-Government Educational Institutions Tribunal & Anr. -2003(2) W.L.C. (Raj.) 16 , Vishnu Kumar v. M.L.S. University & Anr.-2001 WLC (Raj.) UC 793 and Smt. Kiran Bharti v. The Non-Government Educational Institutional Tribunal-2007(1) W.L.C. (Raj.) 543 and reiterating the aforesaid submissions on the strength of these judgments, he urged that the present writ petition deserves to be allowed and order of Tribunal deserves to be quashed and set aside. 6. Mr. H.S. Sidhu, learned counsel of the respondent No. 4-petitioner before the Tribunal, relying on the judgment of Supreme Court in case of Ratan Lal & Ors. v. State of Haryana & Ors., (1985) 4 SCC 43 & Kumari Shrilekha Vidhyarthi & Ors. 6. Mr. H.S. Sidhu, learned counsel of the respondent No. 4-petitioner before the Tribunal, relying on the judgment of Supreme Court in case of Ratan Lal & Ors. v. State of Haryana & Ors., (1985) 4 SCC 43 & Kumari Shrilekha Vidhyarthi & Ors. v. State of U.P. & Ors., (1991) 1 SCC 212 urged that the petitioner institution failed to establish before the Tribunal that the appointment of the respondent-teacher was a fixed term appointment as no appointment order was produced before the Tribunal and merely because the respondent was allowed to work only when the session of the school was working and was not paid salary for summer vacation, it could not be taken to be a break in service of respondent and respondent's termination w.e.f. 12.05.1994 without complying with the mandatory provisions of Rule 39 of the Rules of 1993 was invalid and Tribunal was justified in allowing the application of the respondent-teacher and directing reinstatement in service. He further urged that merely because the respondent participated in the selection process in pursuance of advertisements issued on 02.06.1994 and 18.07.1994 after his illegal termination on 12.05.1994, he cannot be stopped to challenge his illegal termination before the Tribunal. He submitted that unfair labour practice adopted by the petitioner-institution by not paying salary for summer vacation and causing deliberate break in service in aforesaid manner was not sustainable in eye of law in view of aforesaid Supreme Court decisions relied upon by him and the judgments cited by the learned counsel for the petitioner-institution were rendered in different facts and circumstances of the case and petitioners in those cases were not already working in the same institution. He submitted that on the contrary in the application filed in pursuance of advertisement issued by the petitioner-institution, the respondent clearly stated that he had been working in petitioner-institution for last three years and even the result of his students was very good. Merely because he was not selected in the said selection process it did not divest him of his right to challenge the illegal termination before the Tribunal which has rightly held in his favour that the termination w.e.f. 12.05.1994 was illegal. 7. I have heard learned counsel at length and perused the record of the case and judgments cited at the bar. 8. 7. I have heard learned counsel at length and perused the record of the case and judgments cited at the bar. 8. Admittedly, the petitioner-institution did not produce any appointment order before the Tribunal to establish that the appointment of the respondent No. 4 was only for a fixed term. Initially he was appointed on 24.10.1991 and with every end of session he was not paid any salary for summer vacation but again taken on duty with reopening of the session in the next year. This continued for three years and on 12.05.1994 at the end of session of 1993-94 his services were terminated as on commencement of session he was not taken back in job as in the meanwhile selection process in pursuance of advertisements dated 02.06.1994 (Annex. 2) and 18.07.1994 (Annex. 4) was undertaken by the petitioner-institution. 9. Learned counsel for the respondent-teacher appears to be justified in submitting that merely because the respondent applied in pursuance of these advertisements and could not be selected that did not deprive him of his right to challenge the illegal termination w.e.f. 12.05.1994. The estoppel could have been applied against the respondent No. 4 if he was not already working in the said institution and having participated in the selection process in pursuance of advertisements and having failed there, he sought to challenge the selection process by way of litigation before the Tribunal or before this Court. The question here is whether his termination after having worked for three years without any specific appointment order can be said to be only for a particular period or the petitioner-institution can be said to have appointed the respondent-teacher only for a fixed period or not or whether by efflux of time his appointment would come to an end on 12.05.1994. Why such deliberate break in service because of summer vacations for a period of over three years should not be taken as unfair labour practice is a question mark which stares in the face in the present case. 10. The judgments cited by learned counsel for the petitioner did not involve any case where a candidate already working in the same institution faced the selection process and having failed there, challenged his illegal termination prior to commencement of such selection process, therefore, these judgments are distinguishable on facts of the present case. 10. The judgments cited by learned counsel for the petitioner did not involve any case where a candidate already working in the same institution faced the selection process and having failed there, challenged his illegal termination prior to commencement of such selection process, therefore, these judgments are distinguishable on facts of the present case. Petitioner- Institution having failed to discharge the burden to establish the fixed term appointment of respondent-teacher cannot stop him from raising challenge to his illegal termination on 12.05.1994. Rule 39(1) of the Rules of 1993 clearly envisages a notice of one month or one month's salary in lieu of notice even for a temporary employee appointed for a period of six months. Rule 39(1) reads as under : "Rule 39. Removal or Dismissal from service- (1) The services of an employee appointed temporarily for six months, may be terminated by the management at any time after giving at least one months' notice or one months' salary in lieu thereof. Temporary employee, who wishes to resign shall also give at least one month's notice in advance or in lieu thereof deposit or surrender one month's salary to the management." 11. In view of this, there appears to be no error in the order of Tribunal which has held that termination of respondent-teacher w.e.f. 12.05.1994 was illegal and contrary to Rules of 1993. His participation in the selection process after his illegal termination is of no consequence and cannot estop him from challenging his illegal termination. 12. This Court is, thus, satisfied that the Tribunal has not committed any error in directing reinstatement of respondent No. 4 with the consequential benefits. The writ petition is found to be devoid of merit and the same is accordingly dismissed.Writ Petition Dismissed. *******