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2017 DIGILAW 207 (RAJ)

Rajani Goel v. Shree Gandhi Shikshan Samita

2017-01-17

SANJEEV PRAKASH SHARMA

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JUDGMENT : Sanjeev Prakash Sharma, J. Both the petitioners have filed this writ petition jointly challenging the order passed by the Rajasthan Non-Government Educational Institutions Tribunal (in short 'the Tribunal') dated 07.09.1998 by which the appeals filed by the petitioners individually was decided by a common order whereby their appeals were rejected and the termination order passed by the respondent, was upheld. 2. The brief facts for disposal of the present petition are that the petitioners have stated that they were appointed initially on 01.07.1995 on temporary basis with the Gandhi Teacher's College, Gulabpura as Lecturers Economics. They were again appointed afresh on 31.05.1997. In both the appointment orders, the petitioners were shown as temporary Lecturer. However, the difference was that in the earlier appointment order, the salary was on fixed basis while in the subsequent order, the salary was in the pay scale. It is further case of the petitioners that by order dated 04.10.1997 the appointment order dated 31.05.1997 was limited only upto 06.10.1997 and there by another order of 06.10.1997, the services of the petitioners were dispensed with treating them on temporary basis for a period only upto 06.10.1997. It is a case of the petitioners that they were working on substantive basis and the provisions contained under the Rajasthan Non-Government Educational Institutions Act of 1989 and the Rules framed therein were not followed. The conditions of section 18 of the Act as well as Rule 39 of the Rajasthan Non-Government Educational Institutions Rules of 1993 requiring prior approval as well as payment of six months pay in lieu of termination, were not followed. It is also their case that no enquiry was conducted before removing them from service. 3. The petitioners have further stated that when they filed the appeal before the Tribunal, it was specifically pointed out that persons had been appointed subsequent to the appointment of the petitioners but they had been retained as Lecturers in the faculty of Arts. Before this Court also, copy of the advertisement dated 30.05.1998 issued by the respondent subsequent to the petitioners termination has been placed, whereby the applications have been invited for appointment on the post of Lecturers Economics and thus, the termination of the petitioners was wholly unjustified, illegal and an act of hire and fire policy adopted by the respondent. 4. Before this Court also, copy of the advertisement dated 30.05.1998 issued by the respondent subsequent to the petitioners termination has been placed, whereby the applications have been invited for appointment on the post of Lecturers Economics and thus, the termination of the petitioners was wholly unjustified, illegal and an act of hire and fire policy adopted by the respondent. 4. The petitioners have also assailed the order passed by the Tribunal and submit that the Tribunal's findings are wholly perverse and contrary to the facts. The Tribunal has treated the petitioners as temporary appointees and has wrongfully applied provisions contained under Rule 39(1) of the Rules of 1993. It is submitted that firstly the petitioners were substantially appointed person in the regular pay-scale and therefore, provision of 39(1) would not apply, alternatively, it has also been argued that even the provisions of 39(1) require that the services of temporary employee can be terminated only after giving one month notice or pay in lieu thereof and thus condition of payment of one month's salary or notice of one month was a pre-condition and it was not left for the option of the employer to first terminate service of the concerned employee and to require the employer the demand for the one month's salary later on. The interpretation taken by the Tribunal in this regard was therefore also erroneous and illegal. It is further submitted that the Tribunal has not even examined the issue which was taken up by the petitioners relating to the fact that the persons had been given appointment later in point of time to the petitioner and had been retained. 5. Counsel for the petitioner has taken this Court to the reply filed by the respondent before the Tribunal wherein objection was taken that in view of the directions issued by the NCTE of reducing the number of students to 56 in Arts faculty, the number of teachers-students ratio resulted in reduction of number of post from 9 to 6 and accordingly, services of three Lecturers were dispensed with which included the present two petitioners and one other Ms. Sunita Sharma. 6. In rejoinder to the said reply, the petitioners had pointed out that prior to appointment of the petitioners only three teachers were working namely : Dr. Gurmeet Singh Aulakh, Smt. Asha Sukla & Dr. Sunita Sharma. 6. In rejoinder to the said reply, the petitioners had pointed out that prior to appointment of the petitioners only three teachers were working namely : Dr. Gurmeet Singh Aulakh, Smt. Asha Sukla & Dr. Surekha Tripathi and thus, the petitioners would stand at number 4 & 5 in the seniority list and the other teachers who were working in the faculty of Arts were junior to them but the petitioners were arbitrarily picked up and their services were dispensed with, without following the principle of last come first go. 7. It is further stated that while the services of the petitioners were dispensed with, one Miss Vibha Mishra who was initially appointed in July, 1997 and who had also been served with termination order on 06.10.1997 was giving reappointment on the post and appointment letter was also issued to her on 27.11.1997. It is also stated that one Shri Surya Kant Upadhyaya and Miss Vibha Mishra had been appointed in the faculty of Arts on 17.11.1997 and one Smt. Veena Sharma is continuing who was one of the junior to the petitioner. However, these averments which were available before the Tribunal remained un-controverted but were not even looked into or examined by the Tribunal and therefore, the order passed by the Tribunal does not deal with the submissions raised by the petitioners and is laconic and deserves to be set-aside. It is prayed that in view of the submissions made the petitioners were entitled to be reinstated in service. 8. Per-contra, counsel for the respondent has asserted that as there was reduction of post in terms of the students-teachers ratio, only six Lecturers were retained and the services of the three Lecturers were dispensed with. It has been submitted that the Lecturers who had been appointed subsequently were in the Commerce category and not in the Arts category. The petitioners were from Arts faculty and in the Arts faculty only six Lecturers could be allowed to be continued. In view of the appointment order, the services could be dispensed with in terms of 39(1) of the Rules of 1993. The petitioners were from Arts faculty and in the Arts faculty only six Lecturers could be allowed to be continued. In view of the appointment order, the services could be dispensed with in terms of 39(1) of the Rules of 1993. In support of the submissions that the requirement of payment of one month notice pay was not to be simultaneous, the counsel has relied upon the judgment of the Apex Court in the case of Rakesh Kumar Singh v. The Committee of Management, Raibarali reported in JT 1996 (5) SC 532 wherein it was held in para 9 of the said judgment as under - "Thus, the consistent view of the Court is that where the rule permits giving of pay in lieu of the notice of termination and does not further provide as to when the payment is to be made, it only entitles the employee to pay for the period of the notice and payment of notice pay cannot be regarded as a condition precedent to the valid termination of service. But where the rule provides even by implications that payment to the employee of whatever is due to him should be simultaneous with termination of his service then fulfilment of that requirement has to be regarded as a condition precedent to the valid termination. In view of the words "terminated forthwith by payment" in the provision to Rule 5(1)(b) this Court held that payment was intended simultaneously with termination and that was pointed out as the essential difference between Rule 5(1)(b) with which it was concerned in Gopinath's case and the Rule which was considered in Dinanath's case." 9. However, the counsel has been unable to answer to the query relating to the inter-se seniority of Lecturers in the Arts faculty and as to how Lecturers who were appointed subsequent to the petitioners were retained while services of the petitioners were dispensed with. There is a specific averment made in the writ petition which has remained unanswered. With regard to Rule 39's applicability, the counsel for the respondent has submitted that the petitioners cannot be said to be substantively appointed as Lecturers as their appointment order itself mentioned them to be of temporary nature. 10. There is a specific averment made in the writ petition which has remained unanswered. With regard to Rule 39's applicability, the counsel for the respondent has submitted that the petitioners cannot be said to be substantively appointed as Lecturers as their appointment order itself mentioned them to be of temporary nature. 10. On considering the record as placed by the petitioners and respondents before this Court, this Court finds that the order dated 07 09.1998 passed by the Tribunal cannot be allowed to be sustained. 11. The termination of the petitioners has been made by order 06.10.1997 which nowhere states that services are being dispensed with on account of reduction of number of posts and at the same time, it also seen that an advertisement has been issued subsequently for filling up of the posts of Lecturers in the terms. From the documents, which had been filed before the Tribunal and copy of the same which have been produced along with writ petition, it is seen that this plea of education of post has been taken in the reply filed before the Tribunal. However, in rejoinder when a specific assertion was made that petitioners were appointed prior to the Lecturers who have been retained, no answer has come forward from the respondent. So far as fresh appointees are concerned, two of them happen to have been appointed in the commerce faculty but Mrs. Anita Choudhary and Miss Vibha Mishra who were appointed after the services of the petitioners, had been dispensed with along with the petitioners but have been again reappointed in the subject of Social Sciences which is an Arts subject. 12. Thus, it is apparent that the plea of reduction of post is wholly unfounded and does not have any basis. All these aspects have been completely ignored by the Tribunal, although the same were available before it. The order of the Tribunal therefore, is clearly laconic and does not take into consideration the facts brought before it. 13. The next submissions of the counsel for the petitioners relating to their services being treated as substantive or permanent in nature is concerned, suffice is to state that the appointment order of the petitioners mentions their appointment as temporary. The order of the Tribunal therefore, is clearly laconic and does not take into consideration the facts brought before it. 13. The next submissions of the counsel for the petitioners relating to their services being treated as substantive or permanent in nature is concerned, suffice is to state that the appointment order of the petitioners mentions their appointment as temporary. However, the appointment is against a permanent post and carries a regular pay-scale, thus, it is of substantive nature but it cannot be said to be a permanent appointment as no confirmation order has been passed and till the person is confirmed on the post, he would be treated as temporary appointee. However, provisions contained under 39(1) of the Rules of 1993 would not apply as the temporary employment was not for a period of six months. 39(1) of the Rules of 1993 reads as under:- "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 month's notice or one month's 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 on month's salary to the management." Thus, the Tribunal has erred in applying Rule 39(1) in the present case. 14. Thus, there is a condition precedent before terminating service of a temporary employee because the word used is "after" in the case cited by counsel for the petitioner. Regulation 25 quoted by the Apex Court in Rakesh Kumar Singh (supra) mentioned as under:- "25. The services of a temporary employee (other than a probationer) or of a probationer during the terms of his probation, may be terminated at any time by giving him one month's notice or one month's pay in lieu thereof." Taking into consideration the Regulation 25, the Court was of the view that para-10 of said judgment cited by the counsel for the petitioner, it was held as under - "As we are of view that Regulation 25 does not provide payment of one month's pay in lieu of notice as a condition precedent to the effective termination of service, the High Court was right in setting aside the order of the Deputy Director who had taken a contrary view. The view taken by the High Court is correct and, therefore, this appeal is dismissed." 15. While here even under 39(1) word used in "after" word "by" and "after" have two different connotation and meaning and cannot be treated similarly. 16. Hence each rule has to be examined independently and language of the said rule will decide whether the payment of one month salary is to be made before termination or the same can be even tendered later on. In view thereof, the view taken by the Tribunal is clearly erroneous and the termination order stands vitiated having not been passed in terms 39(1) of the Rules of 1993. 17. Taking into consideration that there has been a subsequent advertisement also issued for filling up the post of Economics, it is clearly a case of hire and fire policy adopted by the respondent College which cannot be approved and in view thereof, this writ petition succeeds. The termination order passed by the respondent dated 06.10.1997 is set aside. The respondents are directed to reinstate the petitioners. 18. It has been informed that posts have been kept vacant by this Court by interim order dated 04.10.1999. In view thereof, the petitioners would be entitled to continuity of service in the regular pay-scale with notional fixation for the intervening period. The respondent would be required to fix their pay accordingly and pay them the pay-scale now treating the entire period of service. The actual payment shall be paid from date of passing of the order. Compliance of order of the Court shall be made within a period of three months, failing which the respondent shall be liable for contempt, for which the petitioner shall be free to take up the proceedings without further notice. Writ petition allowed accordingly.