Allowed

Sri Sanatan Dharm Shastri Sans v. State of Raj and Ors.

Rajasthan HC12 Mar 2013CW/3196/2003

Case brief

AI extract

What is this about?

Court upheld Tribunal's award of regular pay scale to an employee in an aided private institution. It clarified that grant-in-aid does not make private employment public and rejected self-abandonment plea. Pay scale granted from reinstatement date with notional fixation.

What did the court decide?

Reinstatement and regular pay scale from date of reinstatement with notional fixation from application date; arrears granted.

Sri Sanatan Dharm Shastri Sans Vs State of… — Public Procurement and Tenders | Rajasthan HC (2013)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH

¶3

S.B. Civil Writ Petition No.3196/2003

¶4

Sri Sanatan Dharm Shastri Sanskrit Mahavidyalaya

¶5

Versus

¶6

The State of Rajasthan & Ors.

¶7

DATE OF ORDER : 12 /03/2013 HON'BLE MR. JUSTICE M.N. BHANDARI

¶8

Mr. Virendra Dangi, Sr. Adv. with Mr. Kamal Sharma, for petitioners Mr. Ganesh Meena, Govt. Counsel, for State Mr. D.P. Sharma, for respondent

¶9

¶10

By this petition, a challenge is made to the order of Rajasthan Non-Government Educational Institutions Tribunal where application preferred by non-petitioner-employee was allowed for regular pay scale after holding it to be a case of termination of service in violation of Law.

¶11

Learned counsel submits that non-petitioner was not engaged by the institution, but was by the Chairman. As per Grant-in-Aid Rules, 1963 (in short “Rules of 1963”), the Managing Committee was competent to make appointment against a duly sanctioned aided post. The non-petitioneremployee herein was appointed on his application at daily rated basis without an advertisement and at the instance of incompetent person. The appointment was thus de-hors the rules. It is moreso when appointment was in an aided institution hence it is in the nature of public employment

¶12

¶13

governed by Articles 14 & 16 of the Constitution of India. Reference of judgments of Hon'ble Apex Court and High Court has been given to show that even aided institutions are doing work akin to the Government. A further reference of judgment of Hon'ble Supreme Court has been given to indicate that no right can be claimed based on back-door entry. The Tribunal however ignored the aforesaid and held that non-petitioner did not abandon his service since 07.07.1995, but is entitled to the pay scale.

¶14

Coming to the facts, it is stated that non-petitioneremployee was engaged on 17.12.1990, thereafter he stopped coming since 07.07.1995. He was time and again asked to resume duties as supplementary examination was scheduled since 20^th July, 1995. He came in the office on 27.07.1995 to drop a letter, but did not report on duties thus it became a case of self-abandonment of service. In view of the aforesaid, impugned order of the Tribunal deserves to be set aside holding it to be a case of termination. It was further stated that pursuant to the direction of this court, non-petitioner is presently working with the institution but is not offered regular pay scale.

¶15

Learned counsel for respondent has supported the impugned order. It is stated that non-petitioner-employee was

¶16

¶17

engaged at the instance of institution as he was paid salary not by the Chairman, but by the institution itself. After taking work for more than 5 years, petitioners cannot challenge the appointment of non-petitioner showing it to be in violation of Rules of 1963. The aforesaid rules were not even statutory in nature thus cannot have binding force. The engagement of non-petitioner was not in the Government or its agencies, but was in a private institution. The judgment in reference to the public employment has no application to this case. If theory propounded by petitioners regarding application of Articles 14 & 16 is accepted then private institution should also fall in the ambit of Article 12 of the Constitution of India. It is otherwise a fact that private institution does not fall under Article 12 even though receive grant-in-aid. The public employment requires many-fold conditions and cannot be satisfied with grant in aid thus none of the judgments referred by petitioners has application to this case.

¶18

As per Sections 16 and 29 of Rajasthan NonGovernment Educational Institutions Act, 1989 (in short “the Act of 1989”) and Rules of 1993, employees of the aided institutions are entitled to the pay scale at par with Government employees. The word “employee” has been defined which does not show distinction between an

¶19

¶20

employee engaged on daily wages basis or otherwise. The non-petitioner thus falls in the definition of “employee” and entitled to the regular pay scale. It was denied to the non-petitioner in an arbitrary manner. The Tribunal decided the issue by well-considered judgment. A reference of judgment of this Court in the case of K.B.C.L.J.V.M.S., Jaipur Vs. R.N.E.I.T., Jaipur & ors., reported in RLR 1995 (1) 765 has been given. Therein, theory of “equal pay for equal work” was applied. It is thus prayed to maintain the impugned order. The other issue is regarding abandonment of service w.e.f. 07.07.1995.

¶21

Learned counsel submits that non-petitioner-employee was not allowed to work thus he was left with no option but to approach the Tribunal immediately when his effort could not come positive. The Tribunal was approached in the year 1995 itself. In view of above, case of self-abandonment is not made out. The fact position would have been different, if one approaches Tribunal with unexplained delay requiring presumption of self-abandonment. The case in hand is not of that nature because non-petitioner preferred an application in the month of November, 1995 itself. The Tribunal thus rightly held it to be a case of discontinuance instead of abandonment of service.

¶22

¶23

I have considered the submissions of the rival parties and perused the record.

¶24

From the facts available on record, it comes out that non-petitioner was engaged at the instance of Chairman on his own application thus it was without evolving procedure for recruitment as provided under non statutory Rules of 1963. It is thus clearly coming out that non-petitioner's engagement was not at the instance of Managing Committee, but was at the instance of Chairman alone. In view of the facts aforesaid, one of the arguments of learned counsel for petitioners could have been accepted. The issue does not come to an end here in view of subsequent event to the appointment. The non-petitioner was continued by the institution nearly for five years without questioning his appointment and even paid salary from the funds. The payment and continuance thus come at the instance of Managing Committee, otherwise proper action could have been taken to discontinue non-petitioner then and there. In view of the above, petitioner-institution cannot take benefit of their own default to question nature of appointment. If such a plea is allowed at the instance of private institutions, they will first engage employees in violation of procedure for recruitment and after keeping them for years together

¶25

¶26

discontinue them in an arbitrary manner. The very purpose of Act of 1989 will then frustrate. In view of the above, while initial appointment may be at the instance of Chairman, but having continued non-petitioner for nearly five years and paid salary, presumption for its engagement by Managing Committee goes in favour of employee and so as the procedure for appointment.

¶27

The question now comes as to whether it is a case of public employment. The argument of the learned counsel for petitioners is based on grant-in-aid received by the institution. I do not find that mere grant-in-aid makes engagement of the employee in private institution to be a case of public employment. In view of the above, reference of various judgments given by learned counsel for petitioners needs no elaboration. Those judgments are in reference of employment in the Government. Since much emphasis was made on the judgment of Hon'ble Apex Court in the case of State of Karnataka Vs. Uma Devi, reported in (2006) 4 SCC-1 , it is referred and clarified that ratio propounded therein does not apply to the private institution. In view of the above, none of the judgments referred by learned counsel for petitioners are having application on the facts of this case. The non-petitioner employee was engaged on daily wages

¶28

¶29

basis and is paid accordingly. The Tribunal has awarded regular pay scale to the non-petitioner, though it is not specified to be from retrospective date but awarded back wages for the intervening period. The challenge to the aforesaid order was made by this petition and stay order to maintain status quo was passed. The order aforesaid was modified on 21.09.2004 to stay on the payment of arrears clarifying that no interim order exists on reinstatement. The non-petitioner was then reinstated but he is paid on daily rated basis.

¶30

In my opinion, there is no illegality for direction of regular pay scale to the non-petitioner. It is looking to Sections 16 and 29 of the Act along with definition of “employee” given under the Act. It is apart from the fact that if service of non-petitioner is taken in continuity, it comes to be more than 23 years, though after 07.07.1995 till reinstatement, he did not work. The fact however remains that he worked nearly for a period of four and half years earlier and now after reinstatement. The reinstatement was not made immediately even after clarification of this court vide order dated 21.09.2004. In view of the above, while holding non-petitioner to be eligible for regular pay scale, to balance the equities, he is made entitled to the regular pay

¶31

¶32

scale from the date he was reinstated in service pursuant to the impugned order of Tribunal but with notional benefit of fixation from the date of application before the Tribunal as petitioners did not raise grievance for regular pay prior to it. The order of the Tribunal with detailed reasonings for grant of regular pay scale is thus maintained, though with modified directions. I am not reiterating the grounds already decided by Tribunal as the writ petition has been argued mainly in reference of the nature of appointment and showing it to be public employment with its consequences. The view is supported by the judgment in the case of K.B.C.L.J.V.M.S., Jaipur (supra).

¶33

The question of self-abandonment of service has been raised by petitioners. If facts are looked into, allegation of not reporting on duties is since 07.07.1995. The non-petitioner worked with the petitioners for a period of four and half years earlier. If one does not report on duties, a notice is given under normal circumstances. The pleading of writ petition shows an effort in that regard by oral communication. If petitioners did not discontinue non-petitioner, then on submission of application within a period of four months before Tribunal, petitioner-institution should have come with willingness to allow him to join service. It cannot be

¶34

¶35

presumed that a person leaving or abandoning job will approach Tribunal soon thereafter. In view of the above and looking to the finding of fact recorded by Tribunal holding it not to be a case of self-abandonment, I do not find it proper to cause interference in those findings. It is moreso when jurisdiction under Article 226 is quite limited as held by Hon'ble Apex Court in the case of Sadhna Lodh Vs. National Insurance Co. Ltd. & Anr. reported in (2003) 3 SCC 524 . Relevant Paras 7 & 8 of the aforesaid judgment are quoted hereunder for ready reference:

¶36

“7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution of India is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate Court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.

¶37

For the aforesaid reasons, we are of the view that since the insurer has a remedy by filing an appeal before the High Court, the High Court ought not to have entertained the petition under Articles 226/227 of the Constitution and for that reason, the judgment and order under challenge deserves to be set aside. We, accordingly, set aside the judgment and order under appeal. The appeal is allowed. There shall be no order as to costs. However, it would be open to the insurer file an appeal if it is permissible under the law.”

¶38

¶39

In view of the discussion made above, I do not find any error in the impugned order so as to cause interference other than modification of the direction as indicated in the preceding paras.

¶40

The writ petition is disposed of with the modified directions. Accordingly, while not interfering in the finding regarding termination/abandonment of service, nonpetitioner-employee is made entitled to the reinstatement and since he has been taken on duty, to be entitled to the regular pay scale from the date of reinstatement with arrears and notional fixation from the date of application before Tribunal. This disposes of stay application as well.

¶41

FRBOHRA/3196CWP2003.doc

¶42

Certificate:

¶43

“All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.”

¶44

FATEH RAJ BOHRA, P.A.

Sri Sanatan Dharm Shastri Sans v. State of Raj and Ors.

Case brief

What is this about?

What did the court decide?

Sri Sanatan Dharm Shastri Sans v. State of Raj and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Dwarka Prasad Yadav Vs State Panchayati Raj Dep Ors.

Suresh Kumar Vs State Education Departmentanr

Mushtaq Hussain Vs State Education Departmentanr

Sanatan Dharam and Ors. Vs Sunil Kumar and Ors.

Tripati Vyas Vs State of Rajasthan and Anr.

Niranjan Ajmera Vs Pankaj Soni