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2018 DIGILAW 840 (RAJ)

STATE OF RAJASTHAN v. SHEELA JAMES

2018-03-22

DINESH CHANDRA SOMANI, M.N.BHANDARI

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JUDGMENT : 1. This appeal is arising out of the order dated 20th January, 2017, passed by the learned Single Judge in the writ petitions preferred by the State of Rajasthan as well as by Shri Mahesh Sewa Samiti, Bhilwara against the order dated 1st February, 2001 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (in short "the Tribunal"). 2. The non-appellant-employee approached the Tribunal apprehending her termination from service. It was pursuant to a letter given by Shri Mahesh Sewa Samiti, Bhilwara (in short "the samiti") on receiving a communication from the Director (Education) for making arrangement of Teacher Gr.I on regular basis. Before referring the order passed by the Tribunal, it would be gainful to narrate the facts of this case. 3. The non-appellant-employee was engaged on the post of Senior Teacher known as Grade-II on 7th July, 1982. She was again given appointment on 10th July, 1986 and continued till 15th May, 1987. She was again appointed on 10th July, 1991 with extension of tenure from time to time. The last appointment was made due to non-availability of the selected candidates. It was with the condition that appointment would be for a period of one year or till regularly selected candidates are made available. 4. The non-appellant-employee was appointed as Senior Teacher Gr.II. She was asked to discharge the duties of the post of Lecturer (Teacher Gr.I) because she was possessing the required qualification as provided by the Rajasthan Public Service Commission. The non-appellant-employee was then served with a letter issued from the samiti that as per directions of the State Government, the post of Lecturer (Teacher Gr.I) has to be filled by regular selection and, therefore, on the availability of selected candidates, she may not be continued. On receipt of said letter, the non-appellant-employee approached the Tribunal under Section 19 of the Rajasthan Non-Government Educational Institutions Act, 1989 (for short "the Act of 1989"). 5. It is a fact that no termination order was issued till filing of the appeal. The Tribunal, presuming it to be a case of termination, caused interference in the order and allowed the appeal with a direction to continue the non-appellant-employee in the same manner as she was working and the order dated 16th June, 1998 was set aside thereupon. It is a fact that no termination order was issued till filing of the appeal. The Tribunal, presuming it to be a case of termination, caused interference in the order and allowed the appeal with a direction to continue the non-appellant-employee in the same manner as she was working and the order dated 16th June, 1998 was set aside thereupon. It was not an order of termination but an information that post of Lecturer (Teacher Gr.I) is to be filled by regular mode. 6. The writ petitions to challenge the order of the Tribunal were filed not only by the State Government but even by the samiti. Learned Single Judge while considering the issue raised before him, refused to cause interference in the order passed by the Tribunal. It is mainly on the ground that the State Government had permitted non-appellant against the post meant for Teacher Gr.I. The court has further ordered for release of 70% aid by the State Government against the post on which the non-appellant-employee worked and the remaining amount to be shared by the management. 7. It is stated by Mr. S.K. Gupta, learned Additional Advocate General that in the appeal before the Tribunal or the writ petition before the learned Single Judge, no direction was sought for release of salary in proportionate to the grant-in-aid. Learned Single Judge issued directions without pleading or prayer by any of the parties to the writ petition. If no reason was existing to cause interference in the order of the Tribunal, it could have been maintained but further directions in the writ petition preferred by the State Government, that too, adverse to them could not have been given. It is moreso when the State Government did not approve the appointment of the non-appellant-employee as Teacher Gr.I, rather, she was not even possessing the required qualification of the post of Lecturer (Teacher Gr.I). In fact, she was appointed on the post of Senior Teacher Gr.II against an unaided post. She was asked to discharge the duties of the post of Senior Teacher Gr.I. The aforesaid temporary arrangement was permitted for certain period. The institution was asked to make regular appointment against the aided post by the mode provided under the Rajasthan Non-Government Educational Institutions Rules, 1993 (in short "the Rules of 1993"). 8. She was asked to discharge the duties of the post of Senior Teacher Gr.I. The aforesaid temporary arrangement was permitted for certain period. The institution was asked to make regular appointment against the aided post by the mode provided under the Rajasthan Non-Government Educational Institutions Rules, 1993 (in short "the Rules of 1993"). 8. There was no reason for the non-appellant-employee to challenge the order of the government and of the institution as there was no sanctioned post of Senior Teacher Gr.II. The sanctioned post was only of Lecturer (Teacher Gr.I) on which the non-appellant-employee was never selected by the mode provided under the Rules of 1993. In any case, the Tribunal granted relief against the samiti only. In fact, there was no reason for the State Government to file the writ petition but, under guidance or misguidance, it was preferred. 9. In any case, the learned Single Judge could not have issued directions contrary to the prayer and pleading of the parties and directed grant-in-aid against the post of Teacher Gr.II despite the fact that it was never sanctioned by the State Government. The sanctioned post was of Teacher Gr.I alone. The prayer is to cause interference in the order passed by the learned Single Judge. 10. Learned counsel for non-appellant-employee as well as samiti have made their arguments. Learned counsel appearing for the non-appellant-employee has supported the order passed by the Tribunal as well as by the learned Single Judge. He submits that non-appellant-employee was selected as per mode provided under the Rules of 1993 and it was against the sanctioned aided post. She was given threatening of termination thus rightly approached the Tribunal. The Tribunal, accordingly, issued directions to continue the non-appellant-employee in service though direction aforesaid was given against the samiti alone and not against the State Government. The intervening period was taken into consideration by the learned Single Judge for giving additional directions though it was not subject matter of appeal before the Tribunal and in the writ petition before this court. The prayer is, however, to maintain the order passed by the learned Single Judge. 11. Learned counsel appearing for samiti states that the non-appellant - employee was not in possession of the required qualification provided by them for the post of Lecturer (Teacher Gr.I). In fact, she was appointed on the post of Teacher Gr.II only. The prayer is, however, to maintain the order passed by the learned Single Judge. 11. Learned counsel appearing for samiti states that the non-appellant - employee was not in possession of the required qualification provided by them for the post of Lecturer (Teacher Gr.I). In fact, she was appointed on the post of Teacher Gr.II only. She was allowed to discharge the work of the post of Teacher Gr.I for a period of one year. The samiti did not terminate services of the non-appellant-employee, rather, a communication was received from the Director (Education) to make regular selection on the post of Lecturer (Teacher Gr.I). 12. It is also stated that the sanctioned aided post was only of Lecturer (Teacher Gr.I) and not of Senior Teacher Gr.II. The samiti, however, continued the non-appellant-employee pursuant to the interim order. They have further paid additional amount to the extent of 30% pursuant to the directions of the High Court. The only prayer is not to burden them further if interference is made in the appeal preferred by the State Government. 13. We have considered rival submissions made by learned counsel for the parties and perused the record. 14. The facts of the case have already been narrated thus need not to be reiterated other than necessary for consideration of the issue. The record shows initial appointment of the non-appellant-employee on the post of Senior Teacher Gr.II and not on the post of Teacher Gr.I. She had worked from time to time till last appointment in the year 1991. The broken period has been narrated by the Tribunal itself. 15. In any case, the Government allowed the non-appellant-employee to work against the post of Lecturer (Teacher Gr.I) till selected candidates are made available. The arrangement aforesaid could not have been continued forever. It is a fact that post sanctioned by the State Government for grant-in-aid was the post of Lecturer (Teacher Gr.I) and not Teacher Gr.II held by the non-appellant-employee. The non-appellant-employee was never appointed on the post of Teacher Gr.I but was allowed under the working arrangement. 16. We do not find any illegality in the directions of the State Government to make regular appointment on the post sanctioned by them i.e. Lecturer (Teacher Gr.I). The communication of the said letter to the non-appellant-employee was not illegal or objectionable. The non-appellant-employee was never appointed on the post of Teacher Gr.I but was allowed under the working arrangement. 16. We do not find any illegality in the directions of the State Government to make regular appointment on the post sanctioned by them i.e. Lecturer (Teacher Gr.I). The communication of the said letter to the non-appellant-employee was not illegal or objectionable. The Tribunal yet caused interference in the said letter presuming it to be the order of termination. It is admitted by the parties that no termination order was issued till filing of the appeal or at any point of time. The perusal of the order of the Tribunal shows it to be a case of termination. If it is assumed that termination of service was effected then also interference can be made only when it can be held to be illegal. No legal ground has been given to hold the alleged termination to be illegal. It is not that permanent and regular selected candidates cannot be terminated from service, rather, a provision of Section 18 exists under the Act of 1989. For ready reference, the said provision is quoted hereunder : "18. Removal, dismissal or reduction in rank of employees.- Subject to any rules that may be made in this behalf, no employee of a recognised institution shall removed, dismissed or reduced in rank unless he has been given by the management a reasonable opportunity of being heard against the action proposed to be taken : Provided that no final order in this regard shall be passed unless prior approval of the Director of Education or an officer authorised by him in this behalf has been obtained : Provided further that this section shall not apply - (i) to a person who is dismissed or removed on the ground of conduct which led to his conviction on a criminal charge; or (ii) where it is not practicable or expedient to give that employee an opportunity of showing cause, the consent of Director of Education has been obtained in writing before the action is taken; or (iii) where the managing committee is of unanimous opinion that the services of an employee can not be continued services of such employee are terminated after giving him six months notice or salary in lieu thereof and the consent of the Director of Education is obtained in writing." 17. If the best possible case of the non-appellant-employee is taken treating her to be regularly appointee, termination can yet be effected save with the compliance of Section 18 of the Act of 1989 and the Rules made thereunder. In fact, no termination order was passed thus there was no question of compliance of the provision. The Tribunal yet treated it to be a case of termination and granted relief. In any case, the relief was against the non-appellant - samiti and not against the State Government. The directions of the Tribunal are quoted hereunder for ready reference : ^^vihykfFkZ;k dh vihy Lohdkj dh tkrh gSA izR;FkhZ laLFkk }kjk ikfjr vk{ksfir vkns'k fnuakd layXud&6 fnuakd 16-06-1998 dks vikLr fd;k tkrk gS o izR;FkhZ laLFkk dks funsZ'k fn;k tkrk gS fd og vihykfFkZ;k dks O;k[;krk x`g foKku ds in ij iwoZ dh Hkkafr dk;Z djus nsA** 18. The writ petition filed by the State Government could not have resulted into an adverse order against them. It is not that writ petition was filed by the employee so as to grant further relief. Para 14 of the order of the learned Single Judge is quoted hereunder to show a relief as if writ petition was filed by the non-appellant : "14. In view of what has been stated herein above, it is directed that the State Government shall release 70% aid against the post on which the respondent No. 1 has been working as Teacher Gr.II i.e. in the pay-scale of Teacher Gr.II and the entire amount along-with 30% share of the management shall be paid to her after deducting the amount which she has already received. The arrears shall be paid to her within a period of three months from the date of passing of this order and it goes without saying that if this order is not complied with within the period stipulated above, contempt proceedings may be initiated without notice." 19. It is admitted by the parties that there was no pleading or prayer for grant of benefit as given in Para 14 of the order of the learned Single Judge. The challenge to the order of the learned Single Judge by the State Government is mainly in reference to relief given above. 20. It is admitted by the parties that there was no pleading or prayer for grant of benefit as given in Para 14 of the order of the learned Single Judge. The challenge to the order of the learned Single Judge by the State Government is mainly in reference to relief given above. 20. The direction cannot be given contrary to the pleadings and ignoring the fact that the post of Teacher Gr.II was not sanctioned by the State Government and no grant-in-aid was permissible against it so as to give directions for the aforesaid. It was only the post of Teacher Gr.I which was sanctioned for grant-in-aid and non-appellant-employee was not selected on the said post by the mode provided under the Rules of 1993. Accordingly, direction given in Para 14 of the order passed by the learned Single Judge is interfered and is, accordingly, set aside while maintaining the order passed by the Tribunal. 21. The appeal is allowed with the aforesaid.