IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R 1) S.B. CIVIL WRIT PETITION NO.6172/1997. Smt.Kanta Sharma Vs. State of Rajasthan & Ors. 2) S.B. CIVIL WRIT PETITION NO.6173/1997. Smt.Madhu Gupta Vs. State of Rajasthan & Ors. 3) S.B. CIVIL WRIT PETITION NO.6174/1997. Smt.Suhasini Phadke Vs. State of Rajasthan & Ors. 4) S.B. CIVIL WRIT PETITION NO.6175/1997. Smt.Pushpa Sharma Vs. State of Rajasthan & Ors. Date of Order:- May 6, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri J.P. Gargey for the petitioners. Shri S.D. Khaspuria, Additional Government Counsel. ****
All these four writ petitions are directed against the judgment & order of the Rajasthan Civil Services Appellate Tribunal Bench Jaipur dated 30/9/1997 by which, appeals filed by the petitioners against the order discontinuing their services vide order dated 29/6/1996 were dismissed.
2) Shri J.P. Gargey, learned counsel for the petitioners has argued that Tribunal rejected the appeals illegally while not considering the fact that appointment of the petitioners was made in the year 1985 and thus, they had completed more than 10 years services in the service of the respondents. Government had issued a Circular on 20/7/1991 to say that such of the untrained teachers who have completed more than 10 years of service, would be entitled to minimum of the regular pay scale. The Tribunal misread the instructions as well as the circulars issued by the government. Learned counsel submitted that petitioners had earlier filed an application before the Tribunal with the prayer that respondents be directed to pay their salary in the regular pay scale of 1200-1350 and regularise their services. Tribunal allowed that application vide order dated 30/5/1995 requiring respondents to consider case of the petitioners for regularization within a period of three months. Respondent-institution did not comply with the order passed by the Tribunal. Therefore, petitioners had to file contempt petition which was referred to this Court. Respondent-institution approached this Court by filing SBCWP No.298/1995 in which, an interim-order was passed by this Court on 19/6/1999. But, subsequently, Tribunal vacated the stay order by observing that application of the petitioners was misconceived and when they are terminated, they would have sufficient cause of action to have approached the Tribunal. Writ petition filed by the respondents was accordingly disposed of by this Court vide judgment dated 29/5/1991. Respondents thereupon filed a special appeal before this Court in which, interim-order was passed by the Division Bench on 29/5/1991 directing respondents to pay minimum wages but in the meantime, services of the petitioners were terminated vide order dated 29/6/1996. In the special appeal filed by the respondents however, Division Bench vide order dated 3/9/1997 directed that till petitioners were in service, they be paid minimum of the pay scale however, in the meantime, respondents illegally terminated services of the petitioners vide order dated 29/6/1996. It is contended that neither provisions of Section 18 of the Act were complied with while terminating services of the petitioners nor Rule 13 was followed before passing the aforesaid order. Therefore, order was passed in an illegal manner ignoring the fact that petitioners continued in service for a pretty long period. According to Section 18 of the Act, respondents were duty obliged to seek prior approval of the Director of School Education. Rule 39 provides that termination can only be made after making payment of salary of six months whereas, compliance of the order was not made therefore this order was sought to be set-aside on this count alone.
3) Notifications of the Government dated 18/2/1993 and 21/7/1995 provided that untrained teachers are entitled to regular pay scale as well as regularisation in service but the respondents clearly violated the said circulars by terminating services of the petitioners. Learned counsel therefore submitted that writ petitions be allowed and the judgment passed by the Tribunal be set-aside and the petitioners be held entitled to be reinstated in services with all consequential benefits.
4) Per contra, Shri S.D. Khaspuria, learned Additional Government Counsel opposed the writ petitions and submitted that Division Bench modified the earlier order of the Tribunal by which, respondent-institutions were directed to pay to the petitioners salary in the regular pay scale together with allowances. Said order to say that petitioners would be entitled to be paid minimum of the pay scale and dearness allowance and that order hold good only till petitioners remained in service. Services of the petitioners were terminated therefore that order ceased to exist. It was argued that Tribunal has duly considered the contention of the petitioners with regard to Circular dated 20/7/1990; that circular granted one time exemption binding on all such Teacher Gr.III candidates who were appointed either prior to 1/9/1976 or 1/9/1981 or 31/8/1981. None of the petitioners were appointed during that period. This argument was examined by the Tribunal in paras 21 & 22 of the impugned judgment. Learned counsel argued that Tribunal in the impugned judgment has relied not only on the judgments of Supreme Court but also of this Court. Respondents also cited judgment of Supreme Court in Ram Sukh and others Vs. State of Rajasthan and others : AIR 1990 SC 592 in which, it was held that untrained primary school teachers in rural schools under Panchayat Samitis cannot be directed to be reinstated because untrained teachers can never be proper substitute to trained teachers. Learned counsel also cited another judgment of Supreme Court in U.P. Shiksha & Education Board Vs.Rajender Prasad Gupta : AIR 1996 SC 1336 in which case also, termination of ad-hoc temporary untrained teachers was assailed. Learned counsel in this connection also relied on the Division Bench judgment of this Court in Hemant Kumar Vaidhya Vs. Adarsh Shiksha Parishad Samiti & Anr. (DBSAW No.533/1996) decided on 11/7/1997 and argued that this Court in the aforesaid judgment has held that provisions of Section 18 and Rule 39 would not be attracted in the case of teachers who are appointed on fixed term on temporary basis and not against any vacancy. Only because they continued for the aforesaid period, they should not be pre-supposed without he was confirmed in service in view of judgment in Director, Instititue of Management Development, U.P. Vs. Pushpa Srivastava (Smt.). Learned counsel also cited another judgment of co-ordinate Bench of this Court in Rajasthan Vidyapeeth Kul. Ajmer & Another Vs. Judge, Rajasthan Non-Government Educational Institutions Tribunal, Jaipur & Anr. (SBCWP No.222/1998) decided on 19/5/1998 to the same effect. Lastly, learned counsel relied on the judgment of this Court in Manju Sharma Vs. The Rajasthan Non Government Educational Institutions Tribunal, Rajasthan, Jaipur & Ors. (SBCWP No.7151/2002) decided on 22/1/2009 in which case also, petitioner was appointed on ad hc temporary basis for particular session and on expiry of that period, was discontinued from service. Tribunal rejected the appeal and the judgment of the Tribunal was upheld by the Supreme Court.
5) In so far as the argument of the petitioners that there should be a presumption that petitioners would be dispensed with, that very order dated 20/7/1991 was not challenged by the government, cannot be accepted because Tribunal while reproducing that circular of the government in its para 20 of the judgment, observed that petitioner who has completed more than 10 years of service on the post of untrained teacher, would not be required for further training and accordingly he should be paid regular pay scale. In other words, they would start getting salary and other allowances etc. only when they complete 10 years of service. It does not reflect that they would be deemed to have been regularised or that necessity of acquiring training would stand dispensed with. Tribunal in para 22 of the judgment in this connection also referred to the subsequent explanation issued by the government and held that petitioners were not entitled to any benefit on the strength of the said Circular. Petitioner has referred to various other government notifications in ground D of the writ petition but none of these notifications are placed on record. Learned counsel for respondents in this connection referred to the government notification pertaining to engagement of teachers in panchayati raj department but there can be no presumption that petitioners would be entitled to regularisation straightway without being availing training qualification. Tribunal in para 12 of the judgment, has considered the scheme of Rule 26B framed thereunder. Tribunal has observed that same qualification of eligibility should insist upon for those who are engaged as teachers in aided government educational institutions. Rule 10(xiii) of the rules contains the stipulation that ad hoc educatinal institution shall follow such rule and would appoint untrained teachers. This postulates that grant-in-aid would be paid only against the post and where the trained teachers are working. Tribunal in para 13 found that while four posts of teachers were filled in by regular teachers, but services of four untrained teachers were utilised by availing their services but then respondents initiated process and finally filled in those posts by appointing trained teachers. It was by virtue of engagement of the trained teachers that respondents terminated services of the petitioners. Action of the respondents cannot be said to be laconic or arbitrary or otherwise unauthorised. Condition of obtaining prior sanction of the Director School Education in terms of Rule 38 cannot be insisted or disengaging untrained teachers with a view to make appointment of trained teachers because such was the requirement of the rules. None of those notifications or circulars were produced either before the Tribunal or even before this Court.
6) In the course of arguments, learned counsel for petitioners submitted that subsequent to issuance of the Circular dated 20/7/1991, Government has extended period stipulated in that circular between period of appointment i.e. 1/7/1976 to 31/8/1991 when the appeal was disposed of by the Tribunal vide order dated 30/9/1997 and the writ petitions were filed on 3/11/1997. No such circular was produced either before the Tribunal or before this Court to show that such period was extended by the Government. But the fact remains that Circular merely entitle the untrained teachers to claim their salary at the minimum of the regular pay scale which would mean that they would start getting usual allowances and increments etc. only after their acquiring equivalence of training. Circular itself shows necessity of obtaining qualification of training for that.
7) In my considered view therefore, Tribunal has not committed any error both on facts or law in dismissing the appeals filed by the petitioners. I do not find any merit in these writ petitions.
8) In the result, all the four writ petitions fail and are hereby dismissed.
(MOHAMMAD RAFIQ), J.
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