Allowed

Dr Arti Mathur and Anr. v. State Education Departmentors

Rajasthan HC22 May 2014WMAP/233/2013

Case brief

AI extract

What is this about?

The High Court of Rajasthan quashed termination orders passed against lecturers of a private aided college. Relying on a coordinate Bench judgment, the Court held that 'existing staff' includes those not having resigned for government service, directing the State to restore their jobs and grants despite the earlier cessation of aid due to the vacancy of other posts.

What did the court decide?

Orders dated 26.3.2012 terminating the applicants' services are quashed; they are entitled to all consequential benefits under the order dated 16.4.2013.

Dr Arti Mathur and Anr. Vs State Education… — Pension and Retirement Benefits | Rajasthan HC (2014)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

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:: ORDER ::

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D.B. CIVIL MISC.APPLICATION NO.233/2013 IN

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D.B. CIVIL WRIT PETITION NO.829/2012

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22.05.2014

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HON'BLE THE CHIEF JUSTICE MR. AMITAVA ROY HON'BLE MR.JUSTICE VEERENDR SINGH SIRADHANA

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Mr.R.D.Rastogi for the applicants. Mr.R.K.Mathur, Senior Advocate assisted by Mr.Aditya Mathur for the respondent No.6.

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BY THE COURT (PER HON'BLE THE CHIEF JUSTICE) :

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Heard Mr.R.D.Rastogi, learned counsel for the applicants and Mr.R.K.Mathur, learned Senior Counsel assisted by Mr.Aditya Mathur, learned counsel for the respondent No.6.

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The facts, in short, necessary for the present adjudication, are that the applicants had instituted D.B.Civil Writ Petition No.829/2012 , seeking inter alia the annulment of the amendment to Section 7(1) of the Rajasthan Non-Government Educational Institutions Act, 1989 (for short, hereafter referred to as 'the Act') , as referred to therein, and for an appropriate writ, order or direction to the respondents to continue the payment of grant-in-aid to their college, against their posts. They pleaded that they had been the working lecturers in L.B.S.College, Jaipur in Zoology and English respectively, run by the respondent No.6 against sanctioned and aided posts on permanent basis, after due selection. Referring to the Rajasthan Voluntary Rural Education Service Rules, 2010

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(for short, hereafter referred to as 'the Rules') , the applicants/writ petitioners disclosed that they were not interested to join the government job, as contemplated therein, but with the promulgation of the Ordinance, making amendment to Section 7(1) of the Act predicating that the aid granted under the provisions thereof or the Rules made thereunder, might be stopped by the State Government at any time, they, alongwith many others, being awed and apprehensive of the probable consequences, approached this Court for redress. On 13.12.2011, an order was passed by the Director, College Education, Government of Rajasthan, Jaipur to the effect that since most of the lecturers working in private aided educational institutions on aided and sanctioned posts had opted for government job under the Rules, it had been decided to discontinue the grant-in-aid, hitherto provided by the government to such institutions. According to the applicants/writ petitioners, during the pendency of their writ petition, alongwith those of others, two separate orders dated 26.3.2012 were passed by the Managing Committee of LBS College, Jaipur, informing them that in view of the stoppage of grant-in-aid, their aided posts had come to an end, and therefore, their services were terminated w.e.f.27.3.2012. The applicants/writ petitioners have stated that these termination orders were brought on record by filing D.B.Civil Second Stay Application No.3825/2012 , but as the matters were in the process of being finally heard, no interim relief of keeping those in abeyance was passed. The applicants/writ petitioners have categorically pleaded that they did not

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submit any option to join government job under the Rules, and as a matter of fact, did not join the same. They stated further that their writ petition, alongwith others, in a batch, was disposed of by a coordinate Bench of this Court vide judgment and order dated 16.4.2013 holding

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thus:-

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“. . . . . The transition of a majority of the teaching and non-teaching staff to the Government service under the Rules, 2010, by itself, does not in our estimate warrant and justify withdrawal of the grant to all the institutions as a whole. Thus, exposing these, not only to the risk of the closure in absence of Government patronage but also pushing the continuing teaching and non-teaching staff, though minimal to a state of dolorous uncertainty in life. The possibility of withdrawal of Govt. vigil and interventions consequent upon total withdrawal of the grant also, cannot be ruled out in view of certain provisions indicative thereof. The apprehension of the petitioners that in such a case, existing teaching and nonteaching staff would be left at the mercy of the management of their institutions, thus, cannot be lightly brushed aside. The consequential adverse impact on the quality of teaching and education, is also a potent probability.

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On an overall consideration of the above, we are thus of the unhesitant opinion that though the withdrawal of the grant in aid by the Government vis a vis the posts, that have fallen vacant on the abandonment thereof by the incumbents, who had opted for Government service under the Rules, 2010, cannot be faulted with. Discontinuance of the grant as a whole cannot receive judicial imprimatur. To this extent, the impugned decision cannot be sustained.

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Though, such aid, as the Act, 1989 per se proclaims cannot be claimed as a matter of right, in view of the constituent provisions thereof catering to the objectives sought to be achieved by it, the discretion of the State Government to discontinue or withdraw the same, cannot be exercised in a manner antithetical thereto.

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The administrative communications dt.13.12.2011, 27.12.2011, 28.12.2011, 29.12.2011 and those of the institutions dt.3.1.2012 and 4.1.2012, in substance, reiterate the same ground of discontinuance of grant in aid namely the election of majority of teaching and nonteaching staff for the Government service and non-viability of payment of the earlier salary and consequential continuance of service thereat. . . . . .

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In the backdrop of the above, the impugned amendment to Section 7(1) of the Act, 1989 and the Rules, 2010 is, therefore, negated.

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However, the action of the Government in withdrawing the grant, so far as it relates to the posts in which the teaching and non-teaching staff of the NonGovernment aided educational institutions are still continuing, is adjudged to be illegal and ultravires of the Act, 1989. The impugned communications dt.13.12.2011, 27.12.2011, 28.12.2011, 29.12.2011 and those of the institutions dt.3.1.2012 and 4.1.2012, stand interfered with to this extent. The State respondents are hereby directed to undertake an exercise in association with the management of the concerned non-Government Educational institutions hitherto receiving the grant under the Act, 1989 to work out the category and extent of grant in aid, as would be essential to secure the service conditions of such existing teaching and non-teaching staff

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as contemplated by the enactment and release the same. It is made clear that this direction would be strictly confined to the existing teaching and non-teaching staff of such institutions as on date and the benefit thereof would not be extended to those, who have meanwhile opted for the Government service under the Rules, 2010 and also to the posts so abandoned, and to which, if in the meantime, any induction has been made on the terms and conditions ascribed by the management of the concerned institutions.”

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The applicants/writ petitioners have stated that it is thus apparent from the decision rendered that grant-in-aid could not be withdrawn for the teaching and non-teaching staff of the Non-Government aided educational institutions only on the premise that majority of the teachers/lecturers working on aided or sanctioned posts in such institutions have joined the government service under the Rules, and that, it could not be withdrawn for those lecturers/teachers, who had been working on sanctioned post and had not joined the government job. While quashing the consequential termination orders vis-a-vis the teachers/lecturers, who had been working on sanctioned or aided post but had not joined the government job under the Rules, their orders dated 26.3.2012 were however not annuled. It is in this backdrop that the instant application has been filed, seeking a clarification that as a corollary of the adjudication made, orders of termination of persons, who had either not opted for or had opted under the court orders, but had not joined the government job under the Rules would similarly stand

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quashed.

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The respondent No.6, in its reply, in substance, has asserted that the services of the applicants/writ petitioners though had been terminated by the order dated 26.3.2012, those were not assailed before this Court, either in their writ petition or otherwise, and therefore, those had been rightly left uninterfered by this Court. The answering respondent denied the claim of the applicants/writ petitioners that after the termination of their services, they had kept on attending the college, but were not permitted to sign the attendance register. It pleaded further that the applicants/writ petitioners were thus, not entitled to the defeasance of their orders of termination on the basis of the judgment and order dated 16.4.2013, and that, thus, the instant application for clarification is wholly misplaced.

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Mr.Rastogi has insistently argued that it being an admitted fact that the services of the applicants/writ petitioners had been terminated only on the ground of stoppage of aid to their college, in view of the emphatic and unambiguous enunciations made in the judgment and order dated 16.4.2013, they are entitled to the relief of the annulment thereof. According to the learned counsel, the applicants/writ petitioners do fall within the category of teachers/lecturers, who had not abandoned their posts in the non-aided educational institutions or had joined the government service under the Rules, and thus, if the relief claimed for by them in the instant application is not extended to them, it would result in unequal treatment ensuing in irreparable harm and

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prejudice. That the facts pertaining to the termination of services of the applicants/writ petitioners and the orders to that effect had been brought on record in time, and thus, the omission to nullify the same, on the same reasonings, if not rectified at this stage, would cause great injustice to them has been urged. To reinforce his arguments, Mr.Rastogi placed reliance on the decision of the Hon'ble Apex Court in Kedar Nath Agrawal (Dead) & Anr. Vs. Dhanraji Devi (Dead) By LRs. & Anr., (2004) 8 SCC 76 .

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Per contra, Mr.Mathur has argued that in absence of any challenge by the applicants/writ petitioners to the termination orders dated 26.3.2012, the relief of annulment thereof, at this distant point of time, ought not to be granted, as the same would otherwise amount to allowing them to take advantage of their own wrong/failure. Referring to the additional affidavit filed on behalf of the respondent No.6, Mr.Mathur urged that following the termination of the services of the applicants/writ petitioners, appointment against their posts had been made on contract basis, and that, the said incumbents are continuing in service. On being queried by this Court, the learned senior counsel has submitted, on instructions, that for the present, there are no posts to accommodate the applicants/writ petitioners. Reliance was placed on the decision of the Hon'ble Apex Court in State of Kerala & Ors. Vs. P.T.Thomas, (2005) 12 SCC 347 .

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We have analyzed the pleaded facts and the documents on record, to the extent necessary and have also applied ourselves to the arguments

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advanced.

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This Court, by the judgment and order dated 16.4.2013, referred to hereinabove, did, in clear terms, adjudge the action of the government in withdrawing the grant-in-aid qua the posts in which the teaching and non-teaching staff of the Non-Government aided educational institutions had been continuing, to be illegal and ultra vires . Resultantly, the communications, as referred to therein, were quashed and the State-respondents were directed to undertake an exercise in association with the management of the concerned NonGovernment educational institutions hitherto receiving the grant under the Act to workout the category and extent of grant-in-aid, as would be essential to secure the service conditions of such existing teaching and non-teaching staff, as contemplated by the enactment and to release the same. This Court however, clarified that this direction would be strictly confined to the existing teaching and non-teaching staff of such institutions as on that date and the benefit thereof would not be extended to those, who have meanwhile opted for the government service under the Rules and also to the posts so abandoned, and to which, if in the meantime, any induction had been made on the terms and conditions stipulated by the management of the concerned institutions.

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Having regard to the quintessence of the conclusions so recorded, it is apparent that the existing teaching and non-teaching staff, as comprehended, did include those, whose orders of termination passed

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for want of receipt of grant, had been quashed. Resultantly, the corresponding posts, if the incumbents thereof had not joined the government service under the Rules, were not considered to have been abandoned. In that view of the matter, inductions thereto by the management were not intended to be protected, so as to deny restoration of the teachers/lecturers, whose termination orders had been set at naught by the decision.

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A bare perusal of the letters dated 26.3.2012 terminating the services of the applicants/writ petitioners would reveal that this consequence had ensued singularly for the cessasion of the grant-in-aid to their posts, lodged in the rolls of their institution. In that view of the matter, in our comprehension, even if the applicants/writ petitioners had not challenged the validity thereof, they cannot be denied the benefit of the judgment and order dated 16.4.2013, if they are otherwise eligible therefor. It is a matter of record that they indeed had filed the second stay application being D.B.Civil Second Stay Application No.3825/2012 , seeking stay of these orders, which however, was not granted. This eventuality as well, in our opinion, does not disentitle them to the reliefs otherwise extendable to them, in terms of the judgment and order dated 16.4.2013, as the assailments made and examined therein had been answered in the affirmative.

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The Hon'ble Apex Court in Kedar Nath Agrawal (Dead) & Anr. (supra) , on the aspect of relevance of subsequent events and the bearing thereof on the decision to be eventually rendered by a court of law, had

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observed in paragraph 16 of the judgment, as hereunder:-

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“In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the law is well settled on the point, and it is this: the basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a suit/proceeding, cannot be considered at all. It is the power and duty of the court to consider changed circumstances. A court of law may take into account subsequent events inter alia in the following circumstances: (i) the relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or (ii) it is necessary to take notice of subsequent events in order to shorten litigation; or (iii) it is necessary to do so in order to do complete justice between the parties.”

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We fully subscribe to the above exposition, the eventual purpose of an adjudication being to ensure complete justice between the parties. The decision in State of Kerala & Ors. Vs. P.T.Thomas(supra) is distinguishable on facts, and thus, is of no avail to the respondent No.6.

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In the above view of the matter, the orders dated 26.3.2012 terminating the services of the applicants/writ petitioners are hereby quashed and they are entitled to all consequential benefits, in terms of

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the order dated 16.4.2013, referred to hereinabove.

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The application is allowed to the extent indicated hereinabove. No

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costs. IA No.36453/2013 stands disposed.

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(VEERENDR SINGH SIRADHANA),J. (AMITAVA ROY),C.J.

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Skant/-

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