District Jhalawar (Rajasthan) v. Mohd. Shafik S/o

Judgment

1. Mohd. Shafik S/o Shri Nazeer Khan, R/o Mohalla Sultanpura, Pirawa, District Jhalawar, Rajasthan.

3. The Director, Secondary Education, Rajasthan, Bikaner. The Rajasthan Non-Government Educational Institutions Tribunal, Mini Secretariat, Jaipur through its Presiding Officer. ----Respondents For Petitioner(s)

: Mr. Amitosh Rana For Respondent(s) : Mr. Devansh Sharma, Dy. G.C. Mr. Mohd. Haris on behalf of Mr. S.S. Hasan HON'BLE MR. JUSTICE ANAND SHARMA Order 19/08/2025

1. The petitioner has assailed order dated 31.10.2001 passed by the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur, whereby application under Section 21 filed by the respondent-employee has been allowed and termination order dated 16.05.1998 has been quashed with further direction to the respondent-Institution to reinstate him by maintaining continuity in service and to grant him benefits of pay and allowances equal to the pay and allowances admissible to the employees of the State Government. [2025:RJ-JP:33425] (2 of 7) [CW-8303/2002]

2. It is stated that the petitioner is an institution recognized under the provisions of Rajasthan Non-Government Educational Institutions Act, 1989 (for short, 'the Act of 1989') and was also receiving grant in aid from the State Government. It was submitted that the respondent No.1 was appointed on the post of P.T.I. on 01.12.1992, however, his services were never regularized as he was appointed on contractual basis from year to year and subsequently his services were terminated on

16.05.1998.

3. Before termination, the respondent No.1 filed an application under Section 21 of the Act of 1989 for seeking regularization of his services and grant of regular pay scale. Since, during the pendency of application before the Tribunal, his services were terminated, therefore, he filed an application for seeking amendment in the application and prayer for quashing the termination order dated 16.05.1998 was also incorporated by making suitable amendment.

4. After hearing learned counsel for both the parties, the learned Tribunal allowed the application filed by the respondent No.1 and quashed the termination order dated 16.05.1998 along with all consequential benefits.

5. Learned counsel appearing for the petitioner submits that the prayer for quashing of termination order was not there in the original application and the same was included later on by the respondent No.1 by making amendment in the application. Such amendment in the application was as afterthought and therefore, prayer with regard to quashing of termination order ought to have been ignored by the learned Tribunal. [2025:RJ-JP:33425] (3 of 7) [CW-8303/2002]

6. Learned counsel appearing for the petitioner also submits that even otherwise the respondent No.1 was appointed on contract basis year to year and his appointment was not regular, therefore, only on completion of contract his services were terminated. Under these circumstances, the provisions of Section 18 of the Act of 1989 and Rule 39 of the Rules of 1993 made under the Act of 1989, were not applicable. The respondent No.1 was neither entitled for any notice for inquiry prior to his termination nor was there any requirement for prior approval of the Director of Education or his nominee before issuing the order of termination. However, learned Tribunal has totally ignored the applicability of the provisions, which are otherwise applicable only in the cases where a person is regularly appointed in aided institutions.

7. Learned counsel appearing for the petitioner further submits that the findings given by the learned Tribunal in order dated 31.10.2001 with regard to granting benefits of same pay scale to the respondent No.1 is patently against Section 29 of the Act of 1989 which provides for granting same pay and allowances as admissible to employees of government institutions, only to the persons holding aided post. In the instant case, the respondent No.1 was not appointed against any aided post, therefore, he was not entitled for the benefit of regular pay and allowances under Section 29 of the Act of 1989.

8. Learned counsel appearing for petitioner further adds that the findings given by the learned Tribunal are perverse, irrational and against the manifest provisions of the Act of 1989, therefore, order dated 31.10.2001 deserves to be quashed. [2025:RJ-JP:33425] (4 of 7) [CW-8303/2002]

9. Per contra, learned counsel appearing for respondent No.1 defended the order dated 31.10.2001 and submitted that the aforesaid order has been passed after considering the pleadings of the parties, documents on record and law prevailing at the relevant time. Hence, there is no infirmity or illegality in the impugned order dated 31.10.2001.

10. Learned counsel appearing for respondent No.1 also submits that admittedly respondent No.1 was appointed on

01.12.1992 and he continued for around six years but only on account of the fact that the respondent No.1 approached learned Tribunal by way of filing application under Section 21 of the Act of 1989 for seeking benefit of regular pay scale and regularization, during the pendency of his application, without following the principles of natural justice and without following the specific provisions of Section 18 of the Act of 1989 and Rule 39 of the Rules of 1993, services of the respondent No.1 were terminated. Hence, under these circumstances, the respondent No.1 amended his application already pending before the learned Tribunal and incorporated the prayer for quashing the termination order dated

16.05.1998.

11. Learned counsel appearing for the respondents would further submit that as the respondent-Institution is an aided Institution, therefore, it was under a legal obligation to make strict compliance of the provisions of the Act of 1989 and Rules made thereunder before passing any order of termination of services.

12. It was also submitted by the learned counsel for the respondent No.1 that all the employees of aided institutions are entitled for the benefit under Section 29 of the Act of 1989 with [2025:RJ-JP:33425] (5 of 7) [CW-8303/2002] regard to grant of same pay and allowances which are otherwise admissible to the staff of similar category working in government institutions. Thus, no illegality whatsoever has been committed by the learned Tribunal in allowing the application filed by the respondent No.1.

13. I have considered rival submissions put forward by the learned counsel for the parties and perused the record.

14. It is an admitted fact that the petitioner was an aided institution under the provisions of the Act of 1989 and Rules made thereunder and was receiving grant in aid from the State Government. The respondent No.1 was appointed on 01.12.1992 on the post of P.T.I., however, was not being paid salary in regular pay scale and only consolidated meagre salary was being paid to him. Feeling aggrieved, he filed application under Section 21 of the Act of 1989 for seeking regular pay scale and regularization. During the pendency of such application, order dated 16.05.1998 was passed by the respondents for terminating his services.

15. Contention of learned counsel for the petitioner that Section 18 of the Act of 1989 and Rule 39 can be made applicable only in the cases where the person was holding aided post, this Court finds that such contention is misconceived and without force. In this regard, it would be relevant to refer to explanation appended to Rule 2(c) of the Rules of 1993 makes it quite clear that if any part of an Institution receives maintenance grant, then entire Institution shall be treated as aided Institution irrespective of whether any part of the Institution is or is not covered by the aid. [2025:RJ-JP:33425] (6 of 7) [CW-8303/2002]

16. The aforesaid Rules makes it abundantly clear that irrespective the fact that the petitioner was holding any aided post or unaided post, for the purpose of benefits under the Act of 1989 and Rules of 1993, he would be treated as a part of aided Institution and cannot be deprived of any benefit merely by stating that although the Institution was an aided Institution yet the respondent No.1 was not holding aided post.

17. Provisions of Section 18 of the Act of 1989 and Rule 39 of the Rules of 1993 are apparently clear where even before terminating services of a temporary employee, notice or pay in lieu of notice is required to be issued and such termination can be made only after prior approval of the Director of Education or his nominee.

18. Even otherwise in the case of Gajanand Sharma Vs. Adarsh Siksha Parisad Samiti & Ors. reported in 2023 (18) SCC 581, after examining the provisions of the Act of 1989 and Rules of 1993, the Hon'ble Supreme Court has held that irrespective of the fact that the Non-Government Educational Institution recognized under the Act of 1989, is or is not receiving grant in aid, compliance of Section 18 of the Act of 1989 is mandatory.

19. In view of above, where admittedly the respondent No.1 was not given any notice or pay in lieu of notice before passing termination order dated 16.05.1998, nor was there any approval of such termination by the Director or his nominee, learned Tribunal has committed no mistake in quashing the same.

20. As regards the directions given for granting benefits of pay and allowances as admissible to the Government employees, [2025:RJ-JP:33425] (7 of 7) [CW-8303/2002] provisions of Section 29 of the Act of 1989 are quite clear where the aided Institution are under an obligation to grant the pay scale prevailing in Government Institutions for the similar of the staff.

21. In view of the aforesaid provisions of Section 29 of the Act of 1989, no exception can be carved out in the case of respondent No.1 by stating that he was not holding the aided post. As stated hereinabove, in view of explanation appended to Rule 2 (c) of Rules of 1993, even if any part of the Institution is receiving aid for the purposes of Act of 1989 and Rules made thereunder, the entire Institution shall be treated as aided Institution.

22. Hence, in view of above, learned Tribunal has committed no error in issuing directions for granting pay and allowances to the respondent No.1 equal to the pay and allowances prevailing in Government Institutes.

23. In light of aforesaid discussions, I do not find any ground to interfere in order dated 31.10.2001 passed by the learned Tribunal and the writ petition filed by the petition is hereby dismissed. DAKSH/43 (ANAND SHARMA),J