In The High Court of Judicature for Rajasthan Jaipur Bench, Jaipur O R D E R S.B. Civil Writ Petition No.10246/2005 Mrs. Jyotsna Kulshrestha Vs. Management Committee, Shri Khandelwal Vaish Post Graduate Women College & Ors. Date Of Order :: 14.10.2011 Hon'ble Mr. Justice Ajay Rastogi Mr. R.N. Mathur, Sr. Adv. With Mr. Shrey Gahrana, for petitioner. Mr. Dharmendra Jain ] Mr. Anant Bhandari ] for respondents.
Instant petition is directed against the order passed by the Non-Government Educational Institution Tribunal dt.24.10.2005 rejecting appeal preferred by the petitioner filed against the order terminating her from the post of Principal which she was holding after regular selection vide order dt.13.01.2005.
It has come on record that the petitioner initially joined service as Lecturer in Shri Veer Balika College on 09.11.1985 which is also a government aided educational institution and served there till December,1990 and was thereafter appointed after regular selection as Lecturer in Shri Khandelwal Vaish Women College under the respondent management committee. While she was substantively holding the post of Lecturer in aided institution the management committee of the institution (respondent-1) advertised the post of Principal for Shri Khandelwal Vaish Post Graduate Women College on 12.09.1996 and the petitioner considering herself to be eligible submitted application form for the post of Principal and participated in the selection process and on the basis of her performance and educational credentials and overall performance she was found suitable and the recommendation made by the selection committee was duly approved by the Director of College Education and also by the University of Rajasthan vide communication respectively dt.13.11.1996 & 25.03.1997 and she was appointed and placed on probation for a period of one year on the post of Principal vide order dt.14.11.1996 and before the completion of the period of probation she was confirmed vide order dt.22.03.1997.
It appears that a complaint was made to the State Government that the petitioner was not eligible for the post of Principal and despite the same she was permitted to participate and got appointment which was not in conformity with the scheme of Rules and pursuant thereto a show cause notice was issued to her on 13.11.2002 and the management committee finally took decision to terminate her services and after the approval being granted by the State Government her services were terminated vide order dt.13.01.2005 (Annx.2) which she assailed by filing appeal u/S.19 of the Rajasthan Non-Government Educational Institution Act,1989 before the Non Government Educational Tribunal and the question arose for consideration was how far action of the respondents was justified in terminating her services from the post of Principal on which she was appointed after her regular selection in conformity with the scheme of Act,1989. However, after hearing the parties, her contention did not find favour and appeal preferred by the petitioner came to be rejected by the Tribunal vide order impugned dt.24.10.2005.
It will also be relevant to further record that the State Government during pendency of the writ petition in exercise of power conferred by the proviso u/Art.309 of the Constitution has framed the Rajasthan Voluntary Rural Education Service Rules,2010 and the employees of the Non Government aided Educational Institutions are to be considered after being screened for their permanent absorption and to become member of Rules,2010 and to safeguard interest of the petitioner in third stay application filed it was observed by the Court in its order dt.30.03.2011 that if the petitioner finally succeeds in writ petition impediment may not come in her way in seeking further relief regarding her entitlement for consideration of her application under the Rules,2010.
Shri RN Mathur, Sr. Adv., assisted by Mr. Shrey Gahrana, appearing for the petitioner vehemently contended that finding which the Tribunal has recorded in the order impugned is not legally sustainable in the eye of law and deserves to be quashed. He has further tried to convince this Court that the petitioner was eligible and fulfilled all the conditions of eligibility under the scheme of Rules in vogue at the time when the post of Principal was advertised vide advertisement dt.12.09.1996 and the procedure which the respondent followed in giving her regular appointment was also in conformity with the scheme of Rules. However, further submits that the petitioner was substantively holding the post of Lecturer in the institution and while in service the post of Principal came to be advertised by the respondent in daily newspaper Rajasthan Patrika on 12.09.1996 and being employee for her better future the petitioner considered herself to be eligible submitted application and participated in the process which the respondent initiated holding selection for the post of Principal and on being found suitable she came to be appointed vide order dt.14.11.1996 and it is also admitted that she never concealed any fact in her application form or at any later stage but if still it was considered that she was not eligible to hold the post of Principal at least the decision of the respondent terminating her services vide order impugned dt.13.01.2005 could not be held to be justified and at the best she could be reverted back to the substantive post of Lecturer on which she was appointed after regular selection since it was not a case where the action was taken against her on account of misconduct if there is any being committed and it was also not the case of the respondent that she was ineligible to hold or continue on the post of Lecturer as well which she was holding on substantive basis and this fact has not been looked into by the Tribunal while upholding the order terminating her services dt.13.01.2005, at least the order terminating her services to this extent cannot be held to be legally sustainable.
Counsel for respondents while supporting the finding recorded by the Tribunal submits that once the petitioner was holding the post of Principal for which indisputably she was not eligible no error has been committed by the respondent in terminating her services which was upheld by the Tribunal also as such no interference further is called for under the limited scope of judicial review of this Court u/Art.226 & 227 of the Constitution.
Mr. Dharmendra Jain further submits that no such submission was made before the learned Tribunal that she has a right to continue on the post of Lecturer and that cannot be permitted to be raised for the first time before this Court u/Art.226 & 227 of the Constitution.
This Court has heard counsel for the parties and perused the material on record.
The submission made by Mr. Dharmendra Jain, counsel for respondent, is without substance for the reason that it was pure legal submission based on the material on record and even if it was not raised before the learned Tribunal can always be considered by this Court in writ jurisdiction u/Art.226 & 227 of the Constitution.
This fact is not in dispute that the petitioner after going through the process of selection was appointed on the post of Lecturer in December,1990 in the first instance in the institution of the respondent management committee and while she was substantively holding the post of Lecturer the post of Principal came to be advertised in daily newspaper Rajasthan Partika on 12.09.1996 and for her better future if she considered herself to be eligible and submitted application and never concealed any fact from the respondents and after being found suitable she was given appointment and placed on probation and after satisfactory service being rendered she was confirmed still if at all there was any legal impediment regarding fulfillment of conditions of eligibility for her participation in the process which the respondent initiated for the post of Principal which has been examined by the Tribunal and held that she was not eligible to hold the post of Principal and terminating her services vide order dt.13.01.2005 from the post of Principal was justified still this Court finds substance in the submission made by counsel for petitioner that even if she was ineligible to continue to hold the post of Principal at least her services could not have been terminated and at the best she could have been reverted back to the post of Lecturer which she was substantively holding and this salient fact was neither considered by the respondent management committee nor by the Educational Tribunal while passing the order impugned dt.13.01.2005 and so also dt.24.10.2005 respectively.
It is also relevant to record that it was not the case of any misconduct being committed by the petitioner and if she was not found to be eligible at a much later stage after satisfactory service being rendered for more than nine years to continue on the post of Principal there appears to be no justification available for the respondent to terminate her services vide order dt.13.01.2005 and was required to be reverted to the post which she was substantively holding i.e. Lecturer in the respondent institution and in the opinion of this Court order of termination dt.13.01.2005 could not be held to be legally sustainable.
It will be further relevant to record that such of the employees who were in service when the Rules,2010 came into force they were to be screened by the committee constituted by the Government under the Rules,2010 and appropriate orders regarding such of the employees who are found suitable are absorbed by the Government and became member of the Rules,2010 and this being a later development which took place this Court also noticed in the third stay application filed by the petitioner and her right of consideration under the Rules,2010 has been safeguarded.
Consequently, the writ petition stands partly allowed and the order of the Tribunal dt.24.10.2005 & so also the order of termination dt.13.01.2005 are quashed and modified to the extent that the petitioner is reinstated with continuity of service on the post of Lecturer held by her on substantive basis in the respondent management committee (respondent-1) and on reinstatement she will be entitled for notional fixation of pay but not the salary for intervening period for which she had not actually worked and respondent-1 is directed to recommend the case of the petitioner as she was holding the post of Lecturer after grant of notional fixation of pay to respondents-2-4 within a period of one month from today and on her application being received in the office of the State Government (respondents-2 to 4) they are further directed to consider and screen the candidature of the petitioner under the Rajasthan Voluntary Rural Education Service Rules,2010 and appropriate orders may be passed within a period of two months thereafter. No cost.
(Ajay Rastogi),J.
VS Shekhawat/-p.9
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