Secretary, Management Committee, Shri Vivekanand Secondary School vs State of Rajasthan and Others

Sandeep Mehta, J.—The petitioner institution has approached this Court by way of the instant writ petition assailing the validity and legality of the order (Annex.9) dated 22.5.1999 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (hereinafter referred to as ''the Tribunal'') in Appeal No. 277/98 whereby the Tribunal whilst accepting the appeal preferred by respondent No. 3 Ajay Kumar Dixit held that the order dated 30.6.1998 passed by the petitioner institution, whereby services of respondent No. 3 and another teacher Mahesh Chandra were terminated was illegal. Both the teachers were directed to be reinstated treating their services to be continuous. They were further held entitled to 50% of the wages during the period they were kept out of service.

Facts in brief are that the petitioner society is registered under the Societies Registration Act and runs a Secondary School at Jodhpur. The respondent No. 3 Ajay Kumar Dixit was appointed on the post of Assistant Teacher in the petitioner''s school on temporary basis w.e.f. 30.7.1991 vide order (Annex.1). The tenure of respondent No. 3 was effective upto 16.5.1992. Thereafter, vide order dated 16.5.1992, his term was extended for a period of two years i.e. upto 30.6.1994. He was given further extensions and his services were extended uptil 30.6.1998. The petitioner claims that the respondent No. 3 was offered a fresh appointment to the post vide order dated 20.5.1998 for a period of one year but he declined to accept the offer. The stance of the petitioner institution is that the services of respondent No. 3 came to an end with efflux of time on 30.6.1998. A consequential order (Annex.3) was passed by the petitioner institution relieving respondent No. 3 from duty w.e.f. 1.7.1998. The respondent No. 3 challenged the order (Annex.3) dated 30.6.1998 by filing an appeal before the Tribunal. It was averred in the appeal that the respondent No. 3 had been appointed on the post of Teacher Gr.III in the pay scale of 1260-2050 per month through proper selection process but no appointment letter was provided to him. The respondent No. 3 further claimed that right till the date of his termination, he discharged his duties to the utmost satisfaction of the petitioner institution. It was further claimed that the termination of his services was not preceded with any notice and was effected without complying with the mandatory provisions of Section 18 of the Rajasthan Non-Government Educational Institution Act, 1989 (hereinafter referred to as ''the Act'') and Rule 39 of the Rajasthan Non-Government Educational Institution (Recognition, Grand in Aid and Service Conditions Etc.) Rules, 1993 (hereinafter referred to as ''the Rules'').

The claim was contested by the petitioner institution by filing a reply. The petitioner institution specifically pleaded before the Tribunal that the claim was based on false averments. The appointment of the respondent No. 3 was on fixed term and there were breaks in service during the period between 5.8.1991 to 30.6.1998 on which date the services of the respondent No. 3 came to an end by efflux of time. The stand taken by the petitioner institution was that the provisions of the Act and the Rules were not applicable to the case at hand as the petitioner institution was governed by its own guidelines (Annex.4). It was further pleaded by the Petitioner Institution that only 5 posts of Teacher Grade III were sanctioned in the institution by the Directorate, Primary and Secondary Education, Bikaner and 5 duly selected teachers were already working against the said sanctioned posts. As the sanctioned post strength had saturated, the respondent No. 3 could not have been given regular appointment. He was working against a non-sanctioned post for a fixed term and his services came to an end with efflux of time. The Tribunal however discarded the plea taken by the Petitioner Institution and held that the removal of the respondent No. 3 from service without following the procedure of mandatory enquiry prescribed under Section 18 of the Act and Rule 39 of the Rules was illegal. While accepting the appeal preferred by the respondent No. 3, the Tribunal by the impugned order directed his reinstatement in service in the above referred terms. The petitioner institution has now approached this Court by way of the instant writ petition assailing the validity and legality of the order dated 22.5.1999 passed by the Tribunal.

Shri Rajeev Purohit, learned counsel for the petitioner relied upon the decision rendered by the Hon''ble Apex Court in the case of Shri Maheshwari Senior Higher Secondary School and Another Vs. Bhikha Ram Sharma and Others, (1996) 2 SCALE 402 and urged that the Hon''ble Apex Court held that before passing an order of termination in case of an ad hoc employee, holding an inquiry is not a condition precedent and thus, the dismissal of the respondent No. 3 from service was wrongly set aside by the Tribunal. He further submitted that the learned Single Bench of this Court in the case Shri Maheshwari Senior Higher Secondary School v. Mahendra Kumar Rana reported in 1996 (1) WLC (Raj.) 148 has referred the matter to a Larger Bench but in view of the aforesaid Supreme Court Judgment, even in absence of the reference being answered, the order passed by the Tribunal cannot be sustained. He contended that abolition of a post and the availability of limited posts has virtually one and the same meaning and consequently, as non-availability of the post of a regular teacher in the petitioner institution is not disputed, the petitioner institution was not required to hold an inquiry before terminating the services of the respondent No. 3 and that the provisions of Section 18 of the Act and Rule 39 of the Rules have no application whatsoever to the case at hand.

Per contra, Shri S.K. Malik, learned counsel appearing for the respondent No. 3 relied upon the decision rendered by the Hon''ble Division Bench of this Court in the case of Managing Committee through Chairman (Brid.) Dy. G.O.C., Army School and Anr. v. Smt. Pushpa Sharma and Ors. reported in 2006 (3) WLC (Raj.) 504 and urged that the controversy involved in this case stands squarely covered by the aforesaid judgment. He submitted that before terminating the services of respondent No. 3, the petitioner admittedly did not comply with the mandatory procedure of holding an enquiry laid down in Section 18 of the Act and Rule 39 of the Rules and therefore, the impugned order dated 22.5.1999 does not call for any interference whatsoever in this writ petition.

I have heard and considered the arguments advanced by the learned counsel appearing for the parties and have gone through the impugned judgment.

The main controversy revolves around the issue, as to whether the termination of the respondent No. 3 was on the ground of abolition of post or a termination simplicitor. The language of the order (Annex.3) dated 30.6.1998, whereby the respondent''s service was terminated is relevant for the disposal of the writ petition and the same is quoted hereinbelow for the sake of convenience:--

A bare look at the language of the termination order (Annex.3) clearly shows that the termination of the respondent No. 3 was purportedly for misconduct. It has been mentioned in the order that the respondent No. 3 refused to accept the order dated 20.5.1998 whereby his services were extended by one year and thus, this amounted to misconduct. The order also refers to the teacher''s refusal to continue with the petitioner Institution. Thereupon, his services were terminated w.e.f. 1.7.1998. Even before the Tribunal, the petitioner did not plead that the removal of the respondent and the other teacher namely Mahesh Chandra was on the ground of abolition of post. Had it been the case that the removal of the respondent No. 3 was on the ground of abolition of post, then there was no reason to mention in the order (Annex.3) that the respondent No. 3 was offered extension of services for a period of one year w.e.f. 20.5.1998. Obviously, the plea taken by the learned counsel for the petitioner that the impugned judgment deserves to be quashed on the basis of the ratio of Supreme Court''s Judgment in the case of Shri Maheshwari Senior Higher Secondary School (supra) has no legs to stand whatsoever. In the aforesaid case, the Hon''ble Apex Court ruled that where the removal from service of a temporary employee was on account of abolition of post, holding of inquiry was not necessary. In the case at hand, the dismissal order (Annex.3) clearly reads that the dismissal of the employee was on the ground of misconduct and in such a situation, holding an inquiry as prescribed under Section 18 of the Act and Rule 39 of the Rules was mandatory. The controversy stands squarely covered by the Division Bench Judgment rendered in the case of Managing Committee through Chairman (Brid.) Dy. G.O.C., Army School and Anr. v. Smt. Pushpa Sharma and Ors. (supra) and relied upon by the learned counsel for the respondent No. 3.

It is further relevant to note here that the Tribunal was seized of two appeals; one by the respondent No. 3 Ajay Kumar and the other by another teacher namely Mahesh Chandra, both of whose services were terminated by the common order (Annex.3). The Tribunal''s judgment qua the above teacher Mahesh Chandra was assailed by the petitioner institution by filing a writ petition being S.B. Civil Writ Petition No. 2361/1999. The said writ petition was dismissed by this Court on the basis of an application filed by the Petitioner Institution stating that the respondent No. 3 continued to work in the school. The specific case of the petitioner before the Tribunal and in the instant writ petition is that it was not possible to offer appointment to respondent No. 3 for the reason that there were only 5 sanctioned posts of Teachers in the Institution against which, teachers namely Devi Sharan Gupta, Smt. Kusumlata Gupta, Smt. Uma Shashi, Smt. Savita Panwar and Smt. Veena Chorasiya are working. Had there been an iota of truth in the said submission, then there was no reason to give up the challenge made to the Tribunal''s judgment in the case of the teacher Mahesh Chandra.

As a consequence of the aforesaid discussion, this Court is of the opinion that the judgment (Annex.9) passed by the Tribunal dated 22.5.1999 whereby the dismissal of the respondent No. 3 from the petitioner''s service was held to be illegal on ground of violation of the provisions of Section 18 of the Act and Rule 39 of the Rules and on account of non-holding of enquiry is perfectly in accordance with law and calls for no interference.

Consequently, the writ petition being devoid of any merit is hereby dismissed.

No order as to costs.