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Rajasthan High Court · body

2019 DIGILAW 1702 (RAJ)

Chairman, Army School v. Anamika Saxena

2019-05-29

G.R.MOOLCHANDANI, S.RAVINDRA BHAT

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JUDGMENT : S. Ravindra Bhat, J. 1. The appellants are aggrieved by the order of the learned Single Judge who set aside the decision of the Tribunal which had been approached by the respondent a teacher, under Sec. 21 of the Rajasthan Non-Government Educational Institutions Act, 1989 (hereinafter referred as 'the Act'). 2. Briefly, the respondent-teacher was employed on contractual basis by the appellant. Similar teachers were appointed by the appellant on purely contractual basis. She had approached the Tribunal for some relief. During the pendency of her application, the period stipulated in the contract of her employment ended. Taking a cue from this, the appellant-employer contended that she could not maintain the application under Sec. 21 of the Act because she ceased to be an employee and there was no question of change in the terms of her employment or change in the terms and conditions of the contract. This contention was accepted by the Tribunal. 3. The teacher approached this Court under Article 226 of the Constitution with two-fold complaints i.e. firstly, that the rejection of the application at the threshold was not in accordance with law, and secondly, that the appellants wished to replace her with another set of contractual employees. The appellants-employer resisted the writ petition contending that under Sec. 21, jurisdiction of the Tribunal was not attracted and that an individual had voluntary accepted certain terms which included limited term employment and it was not open to the teacher to challenge the end of her tenure. The learned Single Judge however, rejected these contentions holding that a conjoint reading of Sections 19 and 21 of the Act would indicate that the Legislature intended these provisions to be interpreted broadly rather than narrowly, as was successfully contended by the appellant. 4. On the second aspect, i.e. the impropriety of replacing a contractual employee, with another the learned Single Judge held as follows:- "The second reasoning given by the Tribunal for rejecting the application of the petitioner that appointment of the petitioner was itself against the Rules of 1993, this Court finds that the petitioner had never claimed that she was appointed on regular basis. The petitioner was appointed on contract basis and before giving appointment to the petitioner, if some procedure was followed for holding interview, etc., the appointment of the petitioner cannot be termed against the Rules of 1993. The petitioner was appointed on contract basis and before giving appointment to the petitioner, if some procedure was followed for holding interview, etc., the appointment of the petitioner cannot be termed against the Rules of 1993. The Court further finds that the respondent themselves nowhere had pleaded that appointment of the petitioner was by backdoor entry or against the Rules. The Submission of learned counsel for the respondent that the petitioner does not have a right to continue as her appointment was only on contract basis, this Court finds that the employer has a right to employ persons/employees on contract basis and if services are not found satisfactory, for any reason, services of such an employee can be discontinued after following the terms and conditions, which are agreed between the parties. This Court does not find any substance in the submission of learned counsel for the respondent that the petitioner-services could be terminated and she could be replaced by another set of contractual employee, the respondents in the pleadings have nowhere pleaded that the services of the petitioner were not satisfactory or she was lacking in any respect while performing her job. This Court is conscious of the fact that the employer cannot be burdened when employees, who do not want to work or their performance is not up to the mark, however, the practice of replacing one set of contractual employee by another set of contractual employee, has not been approved by the Apex Court in the case of Mohd. Abdul Kadir & Anr. vs. Director General of Police reported in (2009) 6 SCC 611 . This Court finds that the Tribunal has committed illegality in recording the finding that services of the petitioner were liable to be terminated as she was inducted in any illegal manner. Accordingly, the order dt. 4th January, 2017, passed by the Tribunal is set aside. The services of the petitioner which have been discontinued by efflux of time due to the contract having come to an end, is declared illegal. The respondents are directed to employ the petitioner on contract basis, as she was continuing earlier prior to the last extension order. It is made clear that in case the respondents want to hold regular recruitment or the services of the petitioner are found to be lacking in any respect, her services can be dispensed with after following due procedure of law." 5. It is made clear that in case the respondents want to hold regular recruitment or the services of the petitioner are found to be lacking in any respect, her services can be dispensed with after following due procedure of law." 5. Mr. S.S. Rathore, learned Counsel argued that the appellant is a Society, entirely self-funded and a voluntary self-financed institution and is not a State Under Article 12 of the Constitution. Therefore, it cannot be compelled to adopt a pattern of employment which not evolved by it. It is contended that as a purely contractual employee, the respondent voluntary accepted her terms, and, therefore, she cannot compel the school to now enlarge such terms and conditions and seek reinstatement. 6. Counsel for the teacher on the other hand, submitted that the reasons which persuaded the learned Single Judge to accept and grant relief are sound and proper and calls for no interference. He stated that the principle indicated by the Supreme Court in Mohd. Abdul Kadir & Anr. vs. Director General of Police, (2009) 6 SCC 611 was salutary and was correctly accepted by the Single Judge. 7. Apart from the consideration as to whether the appellant falls within the definition of the State under Article 12 of the Constitution, the other important aspect to be considered is whether it is amenable to writ proceedings under Article 226 of the Constitution. This Court is of the opinion that such a controversy does not directly relate to this case because what the Single Judge did was to interpret Sections 19 and 21 of the Act. 8. This Court is furthermore cognizant of the fact that besides 1989 Act, a broader view of education has entered the public discourse on account of insertion of Article 21A of the Constitution of India which clothes members of the general public and especially children of a certain age group with the right to education. To effectuate this right, the Right to Education Act, 2009 was enacted. Courts' interpretation of education laws, therefore, has to be guided in the light of these later developments, especially amendment to the Constitution. 9. Keeping this perspective in mind it is apparent that the practice of the appellant school is to engage teachers on contractual basis and dispensed their service with at the end of the term. Courts' interpretation of education laws, therefore, has to be guided in the light of these later developments, especially amendment to the Constitution. 9. Keeping this perspective in mind it is apparent that the practice of the appellant school is to engage teachers on contractual basis and dispensed their service with at the end of the term. The extent of prevalence of such practice is not before the Court; the only observation in these circumstances that can be made is that if it is widely prevalent in respect of majority of age groups and classes it would undoubtedly undermine the core objective of imparting education. So far as the correctness of the Single Judge's approach and conclusions are concerned, this Court is of the opinion that the findings made are sound and proper, even through the Court had merely followed the Supreme Court ruling in Mohd. Abdul Kadir (supra) that one set of contractual employees cannot be replaced by another. 10. For the above reasons, the Court holds that there is no merit in the appeal; it is accordingly dismissed.