School managements challenged Tribunal rulings that reinstated terminated contract teachers, arguing Section 18 did not apply to fixed-term employees. The Court held Section 18(iii) applies to all employees, regular or temporary, upheld the Tribunal judgments and rejected all the writ petitions.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Civil Writ Petition No. 3668/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
Connected With
S.B. Civil Writ Petition No. 3669/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 3670/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
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(2 of 36)
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 3671/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 3672/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 3676/2017
Managing Committee, Dayanand Bal Niketan Senior Secondary
(3 of 36)
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School, Ramganj, Ajmer (Raj.) through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 3677/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 3678/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
(4 of 36)
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----Respondents
S.B. Civil Writ Petition No. 3679/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 3680/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 7591/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
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(5 of 36)
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 7592/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 7593/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 7594/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya,
(6 of 36)
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Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 7595/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 7596/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
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(7 of 36)
----Respondents
S.B. Civil Writ Petition No. 7597/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 7598/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 7599/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
(8 of 36)
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about 29 years, Resident of H.no. 346/34 Nr. Ramdev Ji Mandir, Pal Bichla, Ajmer Raj.
----Respondents
S.B. Civil Writ Petition No. 7732/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 14614/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 14615/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
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----Petitioner
(9 of 36)
Versus
----Respondents
S.B. Civil Writ Petition No. 14647/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 14648/2017
Managing Committee, Dayanand Bal Niketan Senior Secondary School, Ramganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
(10 of 36)
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S.B. Civil Writ Petition No. 14649/2017
Managing Committee, Virjanand Senior Secondary School, Girls Wing Ist. Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 14650/2017
Managing Committee, D.A.V.uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 14651/2017
Managing Committee, Dayanand Bal Niketan Senior Secondary School, Ramganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
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(11 of 36)
----Respondents
S.B. Civil Writ Petition No. 14652/2017
Managing Committee, D.A.V.uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 14653/2017
Managing Committee, Virjanand Senior Secondary School, Girls Wing Ist. Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 14654/2017
Managing Committee, D.A.V.Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
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(12 of 36)
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 16980/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 16991/2017
Managing Committee, D.A.V.Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 16993/2017
(13 of 36)
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Managing Committee, Dayanand Bal Niketan Senior Secondary School, Ramganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 16994/2017
Managing Committee, Dayanand Bal Niketan Senior Secondary School, Ramganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 16995/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
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(14 of 36)
Bikaner (Rajasthan)
----Respondents
S.B. Civil Writ Petition No. 16996/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 16997/2017
Managing Committee, Dayanand Bal Niketan Senior Secondary School, Ramganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
S.B. Civil Writ Petition No. 17175/2017
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
(15 of 36)
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----Respondents
S.B. Civil Writ Petition No. 17182/2017
Managing Committee, Virjanand Senior Secondary School, Girls Wing Ist. Kesarganj, Ajmer Raj. through Regional Director, D.A.V. College Managing Committee, Pahaganj, New Delhi, Regional Office, D.A.V. Shatabdi Ucch Madhyamik Vidyalaya, Jaipur Raj.
----Petitioner
Versus
----Respondents
| For Petitioner(s) | : Ms. Naina Saraf |
|---|---|
| For Respondent(s) | : Mr. Virendra Lodha, Sr. Adv. With |
| Mr. Ankit Rathore | |
| Ms. Anjum Praveen Salawat for | |
| Ms. Namita Parihar, Dy.GC | |
| Mr. Ramesh Acharya,through VC |
JUSTICE ANOOP KUMAR DHAND
Order
Reserved on : 28/03/2025 Pronounced on : 08/04/2025 Reportable
INDEX
(1) Prelude……………..………………………………….…...….…..16 (2)Submissions by counsel for petitioner……….…………...17
(16 of 36)
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(3) Submissions by counsel for respondents……..….……...18 (4)Discussions & Analysis…………….………………….………...20 (5) Judgments referred…………………………….…….………….27 (6) Conclusion & Directions……………………………………….. 34
Prelude:
“a) By appropriate writ, order or direction, the writ petition may kindly be allowed and the order dated 14.09.2016 may kindly be quashed and set aside.
(b) Any other appropriate order or direction which this Hon’ble Court deems expedient in the facts and circumstances of the case may also kindly be passed in favour of the petitioners.”
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technical point that provisions of Sections 18 of the Act of 1989 & Rule 39 of the Rajasthan Non-Government Educational Institutions Rule, 1993 (for short ‘Rules of 1993’) are not applicable in the case of employees who are appointed purely on contract basis.
Submissions by counsel for petitioner:
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5.) Dr. Sadhana Godika vs. Managing Committee, Agarwal Shikshak Parshikshan Mahavidhyalaya, Jaipur through General Secretary/Secretary & Ors.; D.B. Special Appeal Writ No.878/2016 decided on 25.10.2017
6.) Principal & Ors. vs. Presiding Officer & & Ors. reported in 1978 AIR 344.
Submissions by counsel for respondents:
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the respondents were appointed, after going through the selection process in accordance with law, but the petitioner-management has shown their appointment as temporary, with a view to maintain facets of exploitation and to keep the employees on temporary basis in order to restrain them from becoming permanent. Counsel submits that without following the provisions contained under Section 18 of the Act of 1989, the services of all the employees were terminated. Counsel submits that such an action on the part of the petitioner-management is in contravention of the provisions contained under the Act of 1989, hence, under these circumstances, the employees were having no other alternative except to file an application under Section 21 of the Act of 1989 before the Tribunal. Counsel submits that the word “employee” has been defined under Section 2(i) of the Act of 1989 which includes a teacher or every other employee working in a recognized institution. The definition is not concerned with whether he/she was appointed on a sanctioned post on temporary or contract basis. Counsel submits that the issue raised in the instant writ petitions is no more res integra, as the same has been decided by the Co-ordinate Single Bench and Division Benches of this Court in catena of judgments.
vs. Ravindra Pareek & Anr. reported in 1996 (3) WLC 102
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Discussions & Analysis:
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The principle underscores that no wrong should go without a remedy. This maxim should be applied to establish a principle that safeguards the fundamental rights of citizens who may suffer due to legal proceedings. According to this maxim, whenever common law recognizes a right or prohibits an injury, it also provides a remedy. In other words, any constitutional or statutory right possessed by a citizen must be protected by the courts.
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SCC 437 that if legal injury is caused to any person, then aggrieved person has at least one remedy of appeal to challenge the correctness of the order impugned passed against him.
Ors., reported in 2018 SCC Online HP 1450 has observed that the right to appeal is a creation of statute but in absence of such provision, the aggrieved person cannot be left remediless and it has been held in para 5 as under:-
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determination of the actual loan amount payable by the borrower or the petitioner. We thus, direct Registrar Cooperative Societies to entertain the arbitration application/petition, as may be preferred by the petitioner under Sections 72 (d) & (e) and 73 of the 1968 Act, and adjudicated the same in accordance with law and principles of natural justice within a period of four months from the date of filing of such petition. The petitioner shall be at liberty to seek interim relief before the authority referred to above.”
This Court finds no merit in the pleadings and arguments presented by the respondents-employees claiming that they were appointed after following the selection process, as no supporting documents have been produced by them. There was neither any advertisement nor any approval of the State Government regarding their appointment. Therefore, it is not possible to assume that their appointment was made after following the regular selection process. In fact, their appointment was made on temporary basis, for a fixed term and on completion of the same, their services were to be terminated, without following the
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mandate, contained under Section 18(iii) of the Act of 1989. For
ready reference, Section 18 is reproduced as under:
“ Section 18 of the Act of 1989.
Removal, dismissal or reduction in rank of employees – Subject to any rules that may be made in this behalf, no employee of a recognised institution shall be removed, dismissed or reduced in rank unless he has been given by the management a reasonable opportunity of being heard against the action proposed to be taken:
Provided that no final order in this regard shall be passed unless prior approval of the Director of Education or an officer authorised by him in this behalf has been obtained:
(iii) Where the managing committee is of unanimous opinion that the services of an employee can not be continued without prejudice to the interest of the institution, the services of such employee are terminated after giving him six months notice or salary in lieu thereof and the consent of the Director of Education is obtained in writing.”
“ Rule 39 of the Rules of 1993. Removal or Dismissal from Service -
(1)The services of an employee appointed temporarily for six months, may be terminated by the management at any time after giving at least one month’s notice or one month’s salary in lieu thereof. Temporary employee, who wishes to resign shall also give atleast one month’s
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notice in advance or in lieu thereof deposit or surrender one month’s salary to the management.
(2) An employee, other than the employee referred to in sub-rule (1), may be removed or dismissed from service on the grounds of insubordination, inefficiency, neglect of duty, misconduct or any other grounds which makes the employee unsuitable for further retention in service. But the following procedure shall be adopted for the removal or dismissal of an employee:-
(a) to (g)xxxxxxxxx
(h) On receipt of the approval as mentioned in subclause (g) above, the managing committee may issue appropriate order of removal or dismissal as the case may be and forward a copy of such order to the employee concerned and also to the Director of Education or the officer authorised by him in this behalf:
Provided that the provisions of this rule shall not apply:-
(I) xxxxxxxxxxxx
(ii) xxxxxxxxxxxx
(iii) Where the managing committee is of unanimous opinion that, the services of an employee cannot be continued without prejudice to the interest of the institution, the service of such employee are terminated after giving him six months notice or salary in lieu thereof and the consent of the Director of Education is obtained in writing..”
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The Rajasthan Non-Government Educational Institutions Act, 1989 (Act No. 19 of 1992) is a social legislation to provide for better organisation and development of education in the nongovernment educational institutions in the State of Rajasthan. It is also intended to check various malpractices and mischief’s which were being committed by some unscrupulous Managements of non- government educational institutions, qua their teachers and employees. The Teachers and other employees of such institutions have been victims of arbitrary hiring and firing policy of the management as they used to adopt the policy of ad-hocism. Such Managements followed the policy of ad-hocism in appointing teachers who constituted the bulk of the educated un-employed persons. The teachers and other employees were compelled to
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accept these jobs on ad-hoc basis with miserable conditions of service as they had no option. The various provisions contained in the Act now provide sufficient safeguards against such arbitrary action of the Management. Chapter-VI of the Act under the head "Conditions of Service and Tribunal" contains regulatory provisions relating to the terms and conditions of employment of aided institutions in the State. Section-16 empowers the state Government to regulate the terms and conditions of employment. 28. The term 'employee,' as defined under Section 2(i) of the Act of 1989, refers to any individual, employed, either on regular or temporary basis. Hence, the procedure contained under Section 18(iii) of the Act is required, to be followed in the case of termination of services of a temporary employee.
Judgments referred:
29.1. In the case of Management Committee of Montfort Senior Secondary School Vs. Shri Vijay Kumar and Ors (Civil Appeal Nos. 5143 and 6593 of 2003), decided on 12.09.2005 , the Hon’ble Apex Court in para 7 has observed as under:-
“In St. Xaviers’ case (supra) the following observation was made, which was noted in Frank Anthony’s case (supra):
“A regulation which is designed to prevent maladministration of an educational institution cannot be said to offend clause (1) of Article 30. At the same time it has to be ensured that under the
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power of making regulation nothing is done as would detract from the character of the institution as a minority educational institution or which would impinge upon the rights of the minorities to establish and administer educational institutions of their choice. The right conferred by Article 30(1) is intended to be real and effective and not a mere pious and abstract sentiment; it is a promise of reality and not a teasing illusion. Such a right cannot be allowed to be whittled down by any measure masquerading as a regulation. As observed by this Court in the case of Rev. Sidhajbjai Sabhai (supra), regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as minority institution as an educational institution. Such regulation must satisfy a dual test J the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conclusive to making the institution an effective vehicle of education for the minority or other persons who resort to it.
The effect of the decision in Frank Anthony’s case (supra) is that the statutory rights and privileges of Chapter IV have been extended to the employees covered by Chapter V and, therefore, the contractual rights have to be judged in the background of statutory rights. In view of what has been stated in Frank Anthony’s case (supra) the very nature of employment has undergone a transformation and services of the employees in minorities un-aided schools governed under Chapter V are no longer contractual in nature but they are statutory. The qualifications, leaves, salaries, age of retirement, pension, dismissal, removal, reduction in rank, suspension and other conditions of service are to be governed exclusively under the statutory regime provided in Chapter IV. The Tribunal constituted under Section 11 is the forum provided for enforcing some of these rights. In Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke of Bombay and Ors. (1976 (1) SCC 496), it has been observed that if a statute confers a right and in the same breath provides for a remedy for enforcement of such right, the remedy provided by the statute is an exclusive one. If an employee seeks to enforce rights and obligations created under Chapter IV, a remedy is available to him to get an adjudication in the manner provided in Chapter IV by the prescribed forum i.e. the Tribunal. That being so, the Tribunal cannot and in fact has no power and
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jurisdiction to hear the appeal on merits and only way is to ask the parties to go for arbitration.”
29.2. The Division Bench of this Court in the case of Sri Sanatan Dharm Sdhastri Sanskrit Mahavidyalaya Vs. State of Rajasthan and Ors. (D.B. Civil Special Appeal (Writ) No. 522/2013) , decided on 19.09.2013 in para 7 has observed as
under:-
“Learned counsel for the respondent-employee supporting the order dated 30th July, 2001 passed by the Tribunal as well as the order passed by the learned Single Judge dated 12th March, 2013 and reiterating the pleaded facts pointed out that the respondent-employee never abandoned the job rather he was exploited and harassed by the appellant to get rid of him for the reasons best known to the appellant Institute; probably for he claimed his lawful right in accordance with law and voiced against the practice to compel him for donation in favour of the appellant Institute. Further, the appellant Institute could not assail its own order after having allowed the respondent-employee to work for 5 years without any complaint from any quarter. Moreover, under the provisions of the Act of 1989 and the Rules of 1993, employees of the aided institutions are entitled to pay scale at par with the government employees in view of the principle of “equal pay for equal work”. Since the respondent-employee was not allowed to work, he had no option but to ventilate his grievance before the Tribunal. Moreover, the appellant Institute continued him in employment for almost five years and paid salary from the funds of the Managing Committee without raising any objection as to the nature and legality of his appointment. The mere fact that the appellant Institute was availing grant-in-aid did not bring the Institute within the ambit of Article 12 of the Constitution of India and therefore, it was not a case of public employment and hence, law declared by the Hon'ble Apex Court of the land in case of State of Karnataka Versus Uma Devi – [(2006) 4 SCC 1] , had no application to the facts of the instant case at hand.”
29.3. Further, the Division Bench of this High Court at principal seat, Jodhpur in the case of Bhopalwala Arya Higher Secondary School Vs. Mr. Nand Lal Saraswat & Ors. (D.B.
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Civil Special Appeal No. 860/2008) , decided on 28.11.2008
has observed in paras 3, 6, 10-13 & 15-16 as under:-
“3. The respondent no. 1 entered the services of the appellant institution on being appointed as part time Library Clerk on temporary basis, vide order dated 29.8.98 on a consolidated salary Rs.2,000/-. As per the terms of the appointment order, the temporary appointment accorded as aforesaid was to be continued till the end of the academic session. Accordingly, the services of the respondent no.1 was brought to an end on the expiry of the term, however, in the next academic session, vide order dated 5.7.99 issued on behalf of the appellant institution, he was reappointed on the said post for a period of six months w.e.f. 5.7.99 or from the date of the joining of the duties, whichever is earlier, on consolidated salary of Rs.2250/-. However, vide order dated 22.12.99, the term of the appointment was further extended till the end of the academic session 1999-2000. This arrangement of fixed term appointment till the end of the academic sessions continued upto the academic session 2004-05. Lastly, vide order dated 1.7.04, the respondent no. 1 was accorded appointment for the period 16.7.04 to 14.5.05. According to the respondent no. 1 he was in continuous service of the appellant institution ever since his initial appointment till his services were brought to an end by an oral order w.e.f. 8.7.05. In these circumstances, the validity of the termination of his services as aforesaid was assailed by the respondent no. 1 by way of an appeal u/s 19 of the Act of 1989 before the learned tribunal.
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compliance of the provisions of Act of 1989 and the Rules of 1993.
The definition of the "employee" set out in Section 2(i) of the Act of 1989 is couched in very wide terms and it includes within its ambit a teacher and every other employee working in the recognised institution, therefore, it goes without saying that the provisions of Section 18 of the Act of 1989, which provides that no employee of a recognised institution shall be removed, dismissed or reduced in rank unless he has been given by the management a reasonable opportunity of being heard against the action proposed to be taken, shall apply even to the temporary employees. However, in view of the provisions of Rule 39(1) of the Rules of 1993, the services of an employee appointed temporarily only for a period of six months may be terminated by the management of the institution at any time after giving him at least one month's notice or one month's salary in lieu thereof, therefore, before termination of services of such a temporary employee, no opportunity of hearing is required to be given and before termination of his services, the consent of the Director of Education is also not required to be obtained. But, from the provisions of Rule 39(1) of the Rules of 1993, it can be in no manner inferred that in case of fa fixed term appointment, may be for a period of six months or more, the management is required to give an employee a notice even if he is allowed to continue in service for entire term of the appointment and his services comes to an end with the expiry of the term of appointment.
But then, as per clause (iii) of the second proviso to Section 18 and clause (iii) of proviso to Rule 39, the provisions of Section 18providing for reasonable opportunity of being heard against the action proposed to be taken shall not apply where the management committees is of the unanimous opinion that the services of an employee cannot be continued without prejudice to the interest of the institution, however, the services of such employee can be terminated only after giving him six months notice or salary
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in pursuance thereof and after obtaining the consent of the Director in writing.
In our considered opinion, if an employee has continued in service of an educational institution governed by the provisions of Act of 1989 and the Rules of 1993, even on temporary basis for years together then, his services otherwise than by way of disciplinary proceedings can be terminated by the management committee of the institution on the existence of the contingency provided under clause (iii) of second proviso to Section 18 after giving him six months notice or salary in lieu thereof and obtaining the consent of the Director of Education in writing.
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services could not have been brought to an end without compliance of the provisions of Section 18 of the Act of 1989 and Rule 39 of the Rules of 1993. Admittedly, neither any notice in terms of Section 18 or the salary in lieu thereof was given to the respondent no. 1 before termination of his services nor the consent of the Director of Education has been obtained before termination of his services, therefore, in our considered opinion, the learned tribunal has committed no error in holding termination of the services of respondent no. 1 as illegal being violative of the provisions of Section 18 and Rule 39 of the Rules of1993.
29.4. The Coordinate Bench of this Court in the case of Managing
Committee Vs. Smt. Pushpa Sharma; reported in (2006) 3
WLC 504 in para 11 has observed as under:-
“11. As regards further submission on applicability of Section 18 of the Act of 1989, only in case action is taken by way of disciplinary action and not simple termination, we are of the view that the main Section 18 and Proviso (iii) of the Act of 1989 will cover both type of cases and said Section has (iii) of the Act of 1989 will cover both type of cases and said Section has been enacted with a view to check the arbitrary action of the management in removing, dismissing, reducing in rank and termination also. Therefore, the provisions of reasonable opportunity/unanimous resolution of Managing Committee and approval/consent of the Director are made mandatory in the order to ensure the fairness of the action. Neither there is unanimous resolution of the Managing Committee nor six months notice was given nor payment of six months salary in lieu of notice was given nor consent of the Director was taken. Therefore, even if the case is taken to be of termination, then also mandatory Proviso (iii) of Section 18 of the Act of 1989 has been violated. The said Section is applicable in respect of all the employee whose services have been dismissed by way of disciplinary action or simple termination.”
Ors. (Civil Appeal Nos. 100-101 of 2023) , decided on 19.01.2023, in para 5.5 and 5.6 has categorically held as under:-
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“5.5 Even on fair reading of Section 18 of the Act, 1989, we are of the opinion that in case of termination of an employee of a recognized institution prior approval of the Director of Education or an officer authorised by him in this behalf has to be obtained. In Section 18, there is no distinction between the termination, removal, or reduction in rank after the disciplinary proceedings/enquiry or even without disciplinary proceedings/enquiry. As per the settled position of law the provisions of the statute are to be read as they are. Nothing to be added and or taken away. The words used are “no employee of a recognized institution shall be removed without holding any enquiry and it further provides that no final order in this regard shall be passed unless prior approval of the Director of Education has been obtained.” The first part of Section 18 is to be read along with first proviso. Under the circumstances, taking a contrary view that in case of dismissal/removal of an employee of a recognized institution which is after holding the departmental enquiry the prior approval of the Director of Education is not required is unsustainable and to that extent the judgment of the Larger Bench of the Rajasthan High Court in the case of Central Academy Society (supra) is not a good law.
5.6 Therefore, on true interpretation of Section 18 of the Act, 1989, it is specifically observed and held that even in case of termination/removal of an employee of a recognized institution after holding departmental enquiry/proceedings prior approval of the Director of Education has to be obtained as per first proviso to Section 18 of the Act, 1989.“
Conclusion & Directions:
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unscrupulous management of the educational institutions. The Act of 1989 and the Rules of 1993 made thereunder are social legislation enacted to ameliorate and improve educational system. Intention of the Act and the Rules formed thereunder, is to check the various malpractices and mischiefs committed by the mighty management to exploit its employees whether appointed on regular or temporary basis. The language contained under Section 18 and Rule 39 is clear and specific and it requires no other interpretation. These provisions are available to all employees, whether he/she is appointed on regular or temporary basis.
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(ANOOP KUMAR DHAND),J
GARIMA /413-451
3 issues framed by the court
Whether services of a contractual or fixed-term employee can be terminated without following Section 18(iii) of the Act of 1989?
Whether an appeal against such termination is maintainable under Section 19 of the Act of 1989?
Whether an aggrieved person can be left remediless if the statute provides no appeal?
Colour shows how this judgement treated each authority
Shri Jatin Swetambar Terapanthi Manav Hitkari Sangh vs. The Rajasthan Non-Government Educational Institutions Tribunal & Ors.Distinguished¶33
D.B. Civil Writ Petition No.3610/2003
Dr. Sadhana Godika vs. The Managing Committee & Ors.Distinguished¶33
S.B. Civil Writ Petition No.3103/2014
Managing Committee, Shri Bhawani Mahavidyalaya, Sikar & Anr. vs. Rajasthan Non-Government Educational Institution Tribunal, JaipurDistinguished¶33
S.B. Civil Writ Petition No.8704/2009
Ramavtar Sharma vs. Rajasthan Non-Government Educational Institutions Tribunal, Jaipur & Ors.Distinguished¶33
S.B. Civil Writ Petition No.4868/1998
Dr. Sadhana Godika vs. Managing Committee, Agarwal Shikshak Parshikshan Mahavidhyalaya, JaipurDistinguished¶33
D.B. Special Appeal Writ No.878/2016
Principal & Ors. vs. Presiding Officer & Ors.Distinguished¶33
1978 AIR 344 · Who else cites this
Honorary Secretary, Maheshwari Balika Vidyalaya, Jaipur vs. Ravindra Pareek & Anr.Relied on
1996 (3) WLC 102
Yogendra Kumar Mishra vs. Rajasthan Non-Government Educational Institution TribunalRelied on
S.B. Civil Writ Petition No.2453/2001
Bhopalwala Arya Higher Secondary School Vs. Mr. Nand Lal Saraswat & Ors.Applied¶293
D.B. Civil Special Appeal No. 860/2008
Sri Sanatan Dharm Sdhastri Sanskrit Mahavidyalaya Vs. State of Rajasthan and Ors.Relied on¶292
D.B. Civil Special Appeal (Writ) No. 522/2013
Ashby Vs. WhiteReferred¶16
(1703) 92 ER 126
M/s. Shiv Shanker Dal Mills and Others Vs. State of HarayanaRelied on¶17
1980(2) SCC 437 · Who else cites this
Union of India Vs. S.B. VohraReferred¶19
(2004) 2 SCC 150 · Who else cites this
Ravinder Chatra Vs. State of Himachal Pradesh and Ors.Relied on¶20
2018 SCC Online HP 1450 · Who else cites this
Management Committee of Montfort Senior Secondary School Vs. Shri Vijay Kumar and Ors.Explained¶291
Civil Appeal Nos. 5143 and 6593 of 2003
Managing Committee Vs. Smt. Pushma SharmaApplied¶294
(2006) 3 WLC 504
Gajanand Sharma Vs. Adarsh Siksha Parisad Samiti and Ors.Applied¶30
Civil Appeal Nos. 100-101 of 2023
6 provisions across 2 enactments
Managing Committee, D.A.V. Uchh Madhyamik Vidayalaya, Kesarganj, Ajmer through Regional Director, D.A.V. College Managing Committee, New Delhi
Saurabh Upadhayaya
Smt. Hemlata Khorwal
Sh. Shivraj
Dheeraj Kumar
Director/Commissioner, Secondary Education, Rajasthan, Bikaner
Anoop Kumar Dhand
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
