Dismissed

Dharma Chand Jain v. State Higher Education Depors

Rajasthan HC18 May 2023CW/1949/2012

Case brief

AI extract

What is this about?

The Court dismissed petitions challenging the absorption of petitioner services at Class-IV post instead of LDC. It held that the promotion to LDC was illegal due to non-compliance with mandatory recruitment procedures, thus precluding absorption at the higher post.

What did the court decide?

Petitions dismissed; no absorption on LDC post; stay applications dismissed.

Dharma Chand Jain Vs State Higher… — Pension and Retirement Benefits | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 1949/2012

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Dharam Chand Jain S/o. Shri Late M.L. Jain, aged 46 years, Resident of 10/463, Malviya Nagar, Jaipur Raj.

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----Petitioner

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Versus

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State Of Rajasthan Through Principal Secretary, Higher Education, Secretariat, Govt. Of Rajasthan, Jaipur Raj.

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The Director, College Education, Radhakrishnan Shiksha Sankul, Jawahar Lal Nehru Marg, Jaipur.

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Shri Veer Balika P.G. Mahavidyalya Through Its Secretary, Purani Kotwali Ka Rasta, Johari Bazar, Jaipur Raj.

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----Respondents

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Connected With

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S.B. Civil Writ Petition No. 1950/2012

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Babulal Swami S/o Shri Satya Narayan Swami, aged 40 years, resident of vilalge Swamiyon Ki Dhani, Tala, Tehsil Jamwaramgarh, District Jaipur (Raj.)

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----Petitioner

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Versus

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State Of Rajasthan Through Principal Secretary, Higher Education, Secretariat, Govt. Of Rajasthan, Jaipur Raj.

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The Director, College Education, Radhakrishnan Shiksha Sankul, Jawahar Lal Nehru Marg, Jaipur.

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Shri Veer Balika P.G. Mahavidyalya Through Its Secretary, Purani Kotwali Ka Rasta, Johari Bazar, Jaipur Raj

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Respondents

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For Petitioner(s) : Mr. Shailesh Prakash Sharma For Respondent(s) : Mr. Aditya Sharma

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HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Order

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18/05/2023

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Since common question of law and facts are involved in both petitions, hence the same are decided by this common order. For convenience, to decide these matters, the facts and prayer mentioned in S.B. Civil Writ Petition No. 1949/2012 has been taken into consideration:

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“It is therefore prayed that this Hon’ble Court may kindly peruse the relevant documents submitted in the writ and after examining the same:-

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(i) By an appropriate writ, order or direction, the impugned order dated 01.08.2011 passed by the Joint Director (Administration) College Education, qua the petitioner, wherein petitioner’s name finds place at serial No. 558 of the list and being treated as Class-IV employee, may kindly be quashed and set aside by this Hon’ble Court and the respondents be directed to treat the petitioner as LDC on the terms and conditions as fixed by the Respondents.

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(ii) Any other prejudicial to the interest of the petitioner and affecting his rights, if passed by the Hon’ble Court, the same may kindly be allowed to be taken on record and may kindly be quashed and set aside by this Hon’ble Court.

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(iii) Any other order, which this Hon’ble Court deem just and proper may kindly be passed in favour of the petitioner.

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(iv) Cost of the writ petition may kindly be awarded in favour of the petitioner.”

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Learned counsel for the petitioner submits that initially the petitioner was appointed on the post of Class-IV. Counsel submits that after acquiring the qualification for appointment on the post of Lower Division Clerk (for short, ‘LDC’), thereafter the petitioner was promoted on the post of LDC vide order dated 26.08.2010. Counsel submits that after passing of the aforesaid order, the matter was sent to Commissioner, College Education, Jaipur seeking approval/ sanction and aid on this post. Counsel submits that vide order dated 14.09.2010 conditional approval was granted by the Joint Director with condition that no aid would be granted on this promotion post and it would be granted to the original post i.e. the post of Class IV. Counsel submits that after enactment of the Rajasthan Voluntary Rural Education Service

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Rules, 2010 (for short, ‘the Rules of 2010’) option were invited from the persons working in Government Aided Institution for absorbing their services in Government services. Counsel submits that petitioner had submitted his option for his absorption in Government Service on the post of LDC, but his services were absorbed on the post of Class-IV while his services should have been absorbed on the post of LDC as the petitioner was working on the sanctioned/approved post though the institution was not receiving any aid on the said post. Counsel submits that respondents were supposed to absorb the services of the petitioner on the post of LDC but without any justified reason they have absorbed the services of the petitioner on the post of Class IV. In support of his contentions, he has placed reliance upon the judgment passed by this Court at Principal Seat in the case of Dillp Singh Rathore Vs. State of Rajasthan and Ors: S.B.Civil Writ Petition No. 564/2012, decided on 25.04.2023. Counsel submits that instant petition be disposed of in the light of the similar directions issued by this Court in the case of Dillip Singh

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Rathore (Supra).

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Per contra, learned counsel for the respondents opposed the arguments raised by learned counsel for the petitioner and submitted that promotion was granted to the petitioner on the post of LDC in contravention to the provisions contained under Section 17 of the Rajasthan Non-Government Educational Institutions Act, 1989 and Rules 26 of the Rules of 1993 framed therein. Counsel submits that without following the procedure contained under Section 17 of the Act of 1989 and Rule 26 of the Rules of 1993, an illegal promotion/appointment was given to the

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petitioner, hence such appointment/promotion of the petitioner on the post of LDC was void and the same amounts to nullity. Counsel submits that even as per the Rules 4 of the Rules of 2010 only regularly appointed employees in the Non-Government Aided Educational Institutions can be absorbed in Government service while the petitioner was not regularly appointed on the post of LDC, hence the respondents have not committed any error in not absorbing the services of the petitioner on the post of LDC. In support of his contentions, he has placed reliance upon the judgment of Hon’ble Apex Court in the case of State of Bihar and Ors. Vs. Devendra Sharma : Civil Appeal No. 7879/2019. Counsel submits that in view of the submissions made hereinabove, interference of this Court is not warranted and this petition is liable to be dismissed.

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Heard and considered the submissions made at Bar and perused the material available on record. 5. This fact is not in dispute that initially the petitioner was appointed on the post of Class IV employee vide order dated 14.03.1991 and the Management was receiving grant-in-aid on this post. This fact is not in dispute that the Management promoted the petitioner on the post of LDC vide order dated 26.08.2010 looking to his satisfactory services. This fact is also not in dispute that after giving promotion to the petitioner on the post of LDC, the matter was sent to the Government for seeking approval and grant of aid. This fact is also not in dispute that vide order dated 14.09.2010 the Joint Director College Education, Jaipur granted conditional approval to the promotion of the petitioner subject to the condition that no aid would be granted on

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the promotion on the post of LDC and the aid for the post of Class IV would continue. This fact is not in dispute that after enactment of the Rules of 2010, the services of the petitioner were absorbed on the post of Class IV employee. Now the question which remains for consideration before this Court is whether the services of the petitioner are liable to be absorbed on the post of LDC. Before deciding the controversy involved in this petition, it would be gainful to quote the relevant provisions mentioned in the Rajasthan Non-Government Educational Institutions Act, 1989 and Rules 1993 framed therein and Section 17 of the Act of 1989 deals with the procedure for recruitment of the employees in a recognized institution.

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For ready reference Section 17 of the Act of 1989 is quoted as under:-

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17. Recruitment of employees. - Recruitment of employees in a recognised institution shall be made either after open advertisement in a local daily newspaper or from amongst the candidates sponsored by the employment exchange in the manner as may be prescribed.

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Similarly Rule 26 of the Rules of 1993 deals with the same

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procedure which reads as under:-

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26. Recruitment .- Recruitment of employees in a recognised institution shall be made on merit, either after open advertisement in a local daily news paper having a wide circulation or from amongst the candidates sponsored by the employment exchange, in the manner prescribed here under:-

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(a) The following details shall be included in the advertisement to be published in the news paper :-

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(i) Name & number of posts,

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(ii) Required qualifications,

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(iii) Pay Scales,

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(iv) Required experience,

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(v) Other qualifications,

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(vi) Minimum and maximum age on a specific date,

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(vii) Number of post/posts reserved for Scheduled Caste/Tribes candidates.

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(b) The qualifications shall be as prescribed by the Government for similar category of employees in Government educational institutions except for the post of Organising Secretary for which the qualifications shall be as under :-

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I. Management Graduate with 5 having three or years experience more institutions as Organizing with approved Secretary in expenditure of Rs. institutions of 20 Lakhs and Category II, above, per annum below.

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II Managements Sr. Secondary . having three or Pass more institution with approved expenditure of Rs. 10 Lakhs or above but below Rs. 20 lakhs, per annum

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(c) All application received in response to the advertisements shall be scrutinized by the Secretary of the managing committee who shall prepare a list of eligible candidates and summon them for interview by the selection committee,

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(d) The selection committee shall consist of the following :-

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(i) Two representatives of the Managing Committee.

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(ii) Head of the concerned institution.

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(iii) One officer nominated by the Director of Education.

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For Colleges two experts/Educationists in case of selection for the post of Principal and one educationist expert in case of other post as nominated by the concerned University shall also be included in the selection Committee besides the above members.

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(e) The nominee of the Director of Education to be a member of the Selection Committee shall be as follows :-

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S.	Name of	Institution	Status of
No .	Posts		Departmental Officer
1	2	3	4
1	Principal	Degree and Shastri Colleges	Joint Director of Education
2	Principal	Post-Graduate College and Acharya Colleges	The Director of Education
3	Lecturers/ Head of the Departme nts	Degree and P.G. Colleges (General and Sanskrit)	Joint Director of Education
4	Headmast er/Princip al	Secondary, Upper Primary Schools, including Praveshika and Upadhyaya	Joint Director of Education (P and S and Sanskrit)
5	Lecturers School Education	Sr. Secondary Schools, including Upadhyaya	Addl. D.E.O./Dy. D.E.O. Or Inspector of Sanskrit Education
6	Senior Teachers	Secondary, Upper Primary Schools, Montessory and other special Schools including Praveshika and Purva Praveshika	Headmaster/Pri ncipal, Sr. Secondary School or Upadhyaya
7	Teachers	All Institutions	Dy. D.E.O./Inspecto r of Sanskrit Education
8	Ministerial Staff	All Institutions	Dy. D.E.O./ Inspector of Sanskrit

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			Education
9	Organisin g Secretary and other post of Special institution s	Secondary Schools of Special and Central Office	D.E.O./Inspecto r of Sanskrit Education

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(f) Reservation policy as laid down by the government and instructions issued from time to time with regard to the appointment of candidates belonging to Scheduled Castes and Scheduled Tribes shall invariably by followed by the aided institutions for all categories of services i.e. Teachers, Ministerial and Class - IV employees etc.

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(g) The Selection committee, after having interviewed all the candidates shall prepare a penal of candidates arranging them in order of merit and submit its recommendations for appointment to the Managing Committee.”

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Bare perusal of the aforesaid provisions clearly indicate that recruitment of an employee in a recognized institution shall be made either upon the advertisement in the local daily newspaper having a wide circulation or from amongst the candidates sponsored by the employement exchange, but here in the instant case, aforesaid procedure was not adopted by the respondent No. 3 at the time of granting promotion to the petitioner on the post of LDC.

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The Hon’ble Apex Court in the case of Devendra Sharma (Supra) has dealt with the identical situation in para 38 to 46 as here:

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“38) The appointments made have been examined by five-member Committee. 91 candidates have been found to be a case of irregular appointment. Such candidates are continuing in service. None of the candidates in the present set of appeals could point out

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that they were appointed in a manner meant for filling up of vacant post of public appointment i.e. by advertisement and by giving opportunity to all eligible candidates to apply.

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This Court inState of Jharkhand & Ors. v. Manshu Kumbhkar13, while allowing of the appeal of the State found that the respondent was not sponsored by the employment exchange. There was no advertisementand there was not even any properly constituted committee to make the selection.

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This Court in State of Bihar v.Upendra Narayan Singh & Ors.14 allowed the appeal of the State and that Section 4 of Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 casts a duty on the employer in every establishment in public sector in the State or a part thereof tonotify every vacancy to the employment exchange before filling up the same.

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This Court in Union of India & Anr. v. Raghuwar Pal Singh15 was examining a case, where the appointment letter came to be issued without approval of the competent authority, then whether such appointment letter issued to the respondent, would be a case of nullity or a mere irregularity? If it is a case of nullity, affording opportunity to the incumbent would be a mere formality and non-grant of opportunity maynot vitiate the final decision of termination of his services. This Court held that in absence of prior approval of the competent authority, the Director Incharge could not have hastened issuance of the appointment letter. The act of commission and omission of the Director Incharge would, therefore, suffer from the vice of lack of authority and nullity in law.

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In Nidhi Kaim & Anr. v. State of Madhya Pradesh & Ors.16, a three Judge Bench was dealing with admission of students to MBBS Course on the basis of illegal and unfair admission process. The Court held as under:

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“92. ...Having given our thoughtful consideration to the above submission, we are of the considered view that conferring rights or benefits on the appellants, who had consciously participated in a well thought out,

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and meticulously orchestrated plan, to circumvent well laid down norms, for gaining admission to the MBBS course, would amount to espousing the cause of “the unfair”. It would seem like allowing a thief to retain the stolen property. It would seem as if the Court was not supportive of the cause of those who had adopted and followed rightful means. Such a course would cause people to question the credibility of the justice-delivery system itself. The exercise of jurisdiction in the manner suggested on behalf of the appellants would surely depict the Court's support in favour of the sacrilegious. It would also compromise the integrity of the academic community. We are of the view that in the name of doing complete justice it is not possible for this Court to support the vitiated actions of the appellants through which they gained admission to the MBBS course. xx xx xx

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...Even in situations where a juvenile indulges in crime, he has to face trial, and is subjected to the postulated statutory consequences. Law, has consequences. And the consequences of law brook no exception. The appellants in this case, irrespective of their age, were conscious of the regular process of admission. They breached the same by devious means. They must therefore, suffer the consequences of their actions. It is not the first time that admissions obtained by deceitful means would be cancelled. This Court has consistently annulled academic gains arising out of wrongful admissions. Acceptance of the prayer made by the appellants on the parameter suggested by them would result in overlooking the large number of judgments on the point. Adoption of a different course, for the appellants, would trivialise the declared legal position. Reference in this behalf may be made to the judgments relied upon by the learned counsel representing Vyapam.

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...In the facts and circumstances of the case in hand, it would not be proper to legitimise the admission of the appellants to the MBBS course in exercise of the jurisdiction vested in this Court under Article 142 of the Constitution. We, therefore, hereby decline the above prayer made on behalf of the appellants.”

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In another three Judge Bench judgment in Chairman and Managing Director, Food Corporation of India & Ors. v. Jagdish Balaram Bahira & Ors.17, the Court was examining the consequences of false caste certificate produced to seek appointment. The Court held as under:

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“69. For these reasons, we hold and declare that:

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69.3 The decisions of this Court in R. Vishwanatha Pillai [R. Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC 105 : 2004 SCC (L&S) 350] and in Dattatray [Union of India v. Dattatray, (2008) 4 SCC 612 : (2008) 2 SCC (L&S) 6] which were rendered by Benches of three Judges laid down the principle of law that where a benefit is secured by an individual-such as an appointment to a post or admission to an educational institution —on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon verification would result in the appointment or, as the case may be, the admission being rendered void or non est.

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xx xx xx

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69.7 Withdrawal of benefits secured on the basis of a caste claim which has been found to be false and is invalidated is a necessary consequence which flows from the invalidation of the caste claim and no issue of retrospectivity would arise;”

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In view of the aforesaid judgments, it cannot be said that the appointment of the employees in the

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present set of appeals were irregular appointments. Such appointments are illegal appointment in terms of the ratio of Supreme Court judgment in Uma Devi. As such appointments were made without any sanctioned post, without any advertisement giving opportunity to all eligible candidates to apply and seek public employment and without any method of recruitment. Such appointments were backdoor entries, an act of nepotism and favoritism and thus from any judicial standards cannot be said to be irregular appointments but are illegal appointments in wholly arbitrary process.

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In light of the above discussion, we find that the order dated July 12, 2011 or other similar orders passed by the High Court cannot be sustained in law and, thus, are set aside. The appeals filed by the State are allowed.

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We do not find any error in the order of the High Court dated September 24, 2014, and, therefore, the appeals filed by the candidates against such order are dismissed. The pending applications, if any, shall stand disposed of.“

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Perusal of the aforesaid judgment clearly indicates that if any appointment has been given in contravention to the mandatory provisions then such appointment are to be treated illegal appointment and the same amounts to nullity. Even perusal of Rule 4 of the Rules of 2010 clearly indicates that only service of a regularly appointed in Non-Government Institutions can be absorbed. Here in the instant case, the petitioner were not given regular appointment as per the mandate of Section 17 of the Act of 1989, hence the respondents have not committed any error in not absorbing the post of LDC.

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