Rajasthan High Court - Jaipur
Nisha Saxena vs State Education Departmentanr on 8 April, 2022
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 18382/2011
Nisha Saxena D/o Late Munni Lal, aged about 50 years, R/o 111-
A/412, Ashok Nagar, Kanpur U.P.
----Petitioner
Versus
1. State Of Rajasthan Through Commissioner, College Education
Government Rajasthan, Shiksha Sankul, J.L.N. Marg, Jaipur
2. The Secretary, J.B. Shah Girls (P.G.) College, Jhunjhunu Raj.
3. Dr. Manorama Tyagi, Lecturer, S.v. Govt. College, Khetri, Near
SDM Court, Neem Ka Thana Road, Khetri, Distt. Jhunjhunu,
Rajasthan
----Respondents
For Petitioner(s) : Mr. Sandeep Saxena
Mr. Shiv Charan Gupta
For Respondent(s) : Mr. N.K. Maloo, Sr. Adv. assisted by
Mr. Vishnu Bohra
Ms. Charvi Patni for
Mr. V.B. Sharma, AAG
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
Order
Date of Reserve :: 29.03.2022
Date of Pronouncement :: April 8, 2022
Reportable
Instant petition has been filed by the petitioner with the following prayers:-
"It is, therefore, respectfully prayed that:-
1. The Hon'ble Court may kindly be pleased to call the entire record of the case and after examining the same be pleased to quash and set aside the action of the respondents and the respondents are directed to consider the petitioner to be appointed on aided post w.e.f. 01.04.1994 with all consequential benefits and respondent No.2 may directed to send the service record of the petitioner to the respondent No.1 and respondent No.1 may directed to consider the candidature of the petitioner (Downloaded on 13/04/2022 at 09:05:34 PM) (2 of 21) [CW-18382/2011] for appointment on the post of Senior Lecturer (Psychology) under the Rajasthan Voluntarily Rural Education Service Rules, 2010 w.e.f. 29.07.2011, with all consequential benefits.
2. Any prejudicial order to the interest of the petitioner, if passed during the pendency of the writ petition, the same may kindly be taken on record and be pleased to quash and set aside.
3. Any other appropriate writ, order or direction, which this Hon'ble Court may consider just and proper, in the facts and circumstances of the case, may kindly be passed in favour of the petitioner.
4. Cost of the writ petition may be quantified in favour of the petitioner."
Brief facts of the case are that vide order dated 17.07.1986 the petitioner was appointed on the post of College Lecturer in Psychology in J.B. Shah Girls P.G. College, Jhunjhunu i.e. respondent No.2 initially for a period of one year on probation basis. Subsequently, her services were confirmed on the said post on 15.12.1987 and thereafter the University of Rajasthan granted approval on the appointment of the petitioner vide order dated 13.03.1992. Thereafter the services of the petitioner were terminated vide order dated 20.02.1993. Against which she submitted an appeal before the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short 'RNGEI Tribunal') and the same was allowed vide judgment dated 02.05.2001 and her order of termination dated 20.02.1993 was quashed and set aside and she was directed to be reinstated with continuity in service along with back wages and consequential benefits.
The case of the petitioner is that the judgment passed by the RNGEI Tribunal was challenged by the respondent No.2- College before this Court by way of filing SB CWP No. 2809/2001 and the same was decided on 12.09.2001. The said order was challenged by the respondent No.2 before the Division Bench by (Downloaded on 13/04/2022 at 09:05:34 PM) (3 of 21) [CW-18382/2011] way of filing DB Civil Special Appeal (Writ) No. 896/2001 and the same was dismissed vide judgment dated 15.10.2001 against which Special Leave to Appeal (Civil) No. 4337/2002 was submitted by the respondent No.2 and the same was also dismissed vide order dated 04.03.2002.
It is the case of the petitioner that the Government of Rajasthan granted financial aid to the respondent No.2- College for four sanctioned posts of Lecturer in Psychology subject and at the relevant time when the aid was granted by the Government to the respondent No.2- College, the petitioner alone was the confirmed Lecturer in Psychology subject and the other three Lecturers in Psychology subject namely; Mrs. Reena Shaktawat, Ms. Neelam Krishnia and Ms. Priti Singh were temporary and respondent No.3- Dr. Manorama Tyagi was not in service. Thereafter, the Director of College Education gave approval to the appointment of the petitioner vide order dated 17.04.1995. Thereafter, the Screening Committee regularized the services of three temporary Lecturers i.e. Mrs. Reena Shaktawat, Mrs. Reena Shaktawat, Ms. Neelam Krishnia and Ms. Priti Singh vide order dated 04.12.1995 but the name of the respondent No.3 Dr. Manorama Tyagi was not considered for her regularization on the post of Lecturer in Psychology.
It was also pleaded in the writ petition that the Rajasthan Voluntary Rural Education Service Rules, 2010 (for short 'the Rules of 2010') came into effect on 01.12.2010 for appointment of the employees of Non-Government Aided Educational Institution who are working against the sanctioned and aided posts, who desire to be appointed under the Rules of 2010 and in pursuance of the said Rules the petitioner submitted (Downloaded on 13/04/2022 at 09:05:34 PM) (4 of 21) [CW-18382/2011] an application on 04.02.2011 expressing her desire to be appointed under the Rules of 2010. It is also the case of the petitioner that the option forms of the other junior Lecturers were sent by the respondent No.2- College to the Government for their appointment under the Rules of 2010 but the service record of the petitioner was not sent by the respondent No.2- College. Hence, the case of the petitioner was not considered by the Government for her appointment under the Rules of 2010 and she was not absorbed/appointed in Government service.
Reiterating the above facts pleaded in the writ petition as well as in the rejoinder and in the additional affidavit, the counsel for the petitioner argued that the petitioner was working on the approved, aided and sanctioned post of College Lecturer in Psychology, so, the respondent No.2- College may be directed to send the service record of the petitioner to the respondent No.1- Commissioner, College Education and the respondent No.1 be directed to consider the candidature of the petitioner for her appointment on the post of Senior Lecturer (Psychology) under the Rules of 2010 w.e.f. 29.07.2011 with all consequential benefits.
On the other hand counsel for the respondent No.2 submitted a detailed reply to the writ petition and denied the averments of the petition and stated that the petitioner was appointed on the post of Lecturer (Psychology) on 17.07.1986. The institution was not aided and the post was neither sanctioned nor approved by the Government. The College was given the status of aided Institution w.e.f. 01.04.1994 but the post held by the petitioner was neither sanctioned nor aided. It was pleaded by the respondent that the College is affiliated by the University of (Downloaded on 13/04/2022 at 09:05:34 PM) (5 of 21) [CW-18382/2011] Rajasthan and only four posts of Lecturer (Psychology) were sanctioned on which aid was given by the Government i.e. four posts for Dr. Manorama Tyagi, Mrs. Reena Shaktawat, Ms. Neelam Krishnia and Ms. Priti Singh were sanctioned and approved by the Government under Rules 26 and 27 of the Rajasthan Non- Government Educational Institutions Rules, 1993 (for short 'RNGEI Rules, 1993'). It was also pleaded by the respondent No.2- College that no aid was ever received by the College on the post held by the petitioner as her appointment was not approved by the Government of Rajasthan as per Rules 26 and 27 of the Rules of 1993. It was also pleaded in the reply that since the post of the petitioner was neither sanctioned nor approved nor aided by the Government, hence, the Rules of 2010 are not applicable and the petitioner is not entitled to get the benefit of the same as she never worked on the aided post nor the College received aid against this post of the petitioner as the petitioner was working on an unaided post.
The respondent No.1 submitted reply to the writ petition and denied the averments of the writ petition and submitted that the respondent No.2- College was included in the list of aided Institutions in the year 1994-1995 and four posts of Lecturer (Psychology) were approved, sanctioned and granted aid. It was also pleaded that Smt. Manorama Tyagi, Mrs. Reena Shaktawat, Ms. Neelam Krishnia and Ms. Priti Singh were working on the post of Lecturer (Psychology) and approval was given to their appointment under Rules 26 and 27 of the RNGEI Rules, 1993 and accordingly aid was given to the institution for these above four sanctioned posts. The Selection Committee never recommended the name of the petitioner for her approval on the (Downloaded on 13/04/2022 at 09:05:34 PM) (6 of 21) [CW-18382/2011] post she was holding. It was also pleaded in the reply that the Rules of 2010 came into effect on 01.12.2010 and in view of Rule 4 of the Rules of 2010, she is not eligible to get appointment as her case does not fall within the definition of Rule 2(g) of the Rules of 2010. Rule 2(g) deals with word "employee", means an employee working in a recognized non-government aided educational institution and who is working against aided and sanctioned post and as per Rule 4 of the Rules of 2010 only appointed employees in the Non-Government Aided Educational Institutions who are working against sanctioned and aided post on the date of commencement of these rules and who desire to be appointed under the Rules of 2010, in accordance with the terms and conditions mentioned in these Rules, can be given appointment subject to the condition that an application in Form-I is submitted to the Secretary of the concerned institution. Sub- rule (2) of Rule 4 of the Rules of 2010 says that the Secretary of the institution shall, after verifying the service particulars, forward the applications to the concerned appointing authority along with complete service record of the employees within 10 days from the last date of receipt of applications. The Secretary of the institution shall append a certificate to the effect that the service particulars mentioned by the employees are correct. It was pleaded by the respondent No.1 in the reply that since the petitioner was not working on sanctioned, approved and aided post, hence, she is not eligible to be considered under Rule 4 of the Rules of 2010 to get appointment.
Counsel for the respondents reiterated the facts pleaded by them in their reply and placed reliance on the following judgments:-
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1. Rajendra Prasad Sharma and Ors. Vs. State & Ors., reported in 2014(2) RLW 1520 (Raj.); and
2. Ravi Shankar Srivastava and Ors. vs. The State of Rajasthan and Ors., reported in 2011 SCC Online (Raj.) 116.
Heard.
Considered the arguments of both sides.
The issue in this petition is "Whether the petitioner was working on the sanctioned, approved and aided post of Senior Lecturer (Psychology) in J.B. Shah Girls College at Jhunjhunu? If yes, whether she is entitled for appointment on the post of Senior Lecturer (Psychology) in Government service under Rule 4 of the Rules of 2010?"
Rule 4 of the Rules of 2010 deals with the procedure for appointment in Government service and the same is reproduced as under:-
"4. Procedure of appointment in government service.
-- (1) Such regularly appointed employees in the Non- Government Aided Educational Institutions who are working against sanctioned and aided post on the date of commencement of these rules and who desire to be appointed under the Rajasthan Voluntary Rural Education Service Rules, 2010, in accordance with the terms and conditions mentioned in these rules, shall submit within 15 days from the date of publication of these rules in the official gazette an application in Form-I, to the Secretary of the concerned institution mentioning therein his/her service particulars with an advance copy to the concerned appointing authority.
(2) The Secretary of the institution shall, after verifying the service particulars, forward the applications to the concerned appointing authority along with complete service record of the employee within 10 days from the last date of receipt of application. The Secretary of the institution shall append a certificate to the effect that the service particulars mentioned by the employees are correct.
(3) The suitability of employees of various Non-Government Aided Educational Institutions for appointment on the various posts under these rules shall be adjudged by the screening committee comprising of :--
(a) in the case of post within the purview of the Commission --
(i) Chairman of the Commission or his Chairman
nominee
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(ii) Principal Secretary, Department of Member
Personnel or his nominee not below the
rank of Dy. Secretary
(iii) Principal Secretary of the concerned Member
Department or his nominee not below the
rank of Dy. Secretary
(iv) Director of the concerned Department Member
Secretary
(b) in the case of post not within the purview of the Commission --
(i) Director of the concerned Department Chairman or his nominee
(ii) Concerned appointing authority Member Secretary (4) The committee after adjudging the suitability of the candidates shall forward the name(s) of the suitable candidate(s) to the concerned appointing authority for appointment."
Similarly Rule 5 of the Rules of 2010 deals with the terms and conditions for appointment of employees in Government service and the same is reproduced as under:-
"5. Terms and condition for appointment of employees in Government Service.--The regularly appointed existing employees in the No.- Government Aided Educational Institutions who are working against sanctioned aided post on the date of commencement of these rules shall be appointed under the Rajasthan Voluntary Rural Education Service on the following terms and conditions, namely :--
(i) The employee should possess the requisite educational and professional qualification for the respective posts as per the relevant service rules applicable to the Government servant of similar cadre.
(ii) The posts on which the employees shall be appointed in the Government shall constitute a separate dying cadre for each category of employees.
(iii) The appointed employees shall be posted only in the colleges/ schools, as the case may be, in the rural areas on the equivalent posts specified in column number 2 of the Schedule.
However, in case there is no such equivalent post in the government, they shall be appointed on other posts carrying the same pay scale of aided posts:
[Provided further that in the case of non-teaching staff, screened for appointment on non-teaching posts in College Education Section and posts for posting in rural areas are not available, such person shall be appointed on any equivalent (Downloaded on 13/04/2022 at 09:05:34 PM) (9 of 21) [CW-18382/2011] post in rural areas in any other department governed by these rules. Such person shall be deemed to be appointed in the new department from the date of joining in the Directorate of College Education.]
(iv) The employees appointed under these rules shall not be entitled for any promotion till they attain the age of superannuation. However, they shall be allowed benefit of Assured Career Progression/Career Advancement Scheme as allowed to other employees of the State Government. The period from the date of their appointment on the sanctioned and aided posts would be counted for the purpose of grant of Assured Career Progression/Career Advancement Scheme.
(v) The posts shall be automatically abolished as and when the posts become vacant for any reason whatsoever i.e. on account of superannuation/ voluntary retirement / termination of service / death while in service/resignation of the employee etc.
(vi) The salary of all the appointed employees shall be fixed on the basis of the salary as drawn at the time of appointment as per the Sixth Pay Commission with effect from the date they join in the government under these rules. Those who are drawing salary in Rajasthan Civil Services (Revised Pay Scale) Rules, 1998, Rajasthan Civil Services (Revised Pay Scales) for Government College Teachers including Librarian and PTI Rules, 1999 and Rajasthan Civil Services Revised Pay Scales for Government Polytechnic College Teachers, Librarians and Physical Training Instructors Rules, 2001 shall be allowed benefit of Rajasthan Civil Services (Revised Pay) Rules, 2008, Rajasthan Civil Services (Revised Pay Scales) for Government College teachers including Librarian and PTI Rules, 2009 and Rajasthan Civil Services (Revised Pay Scales) for Government Polytechnic College Teachers, Librarians and Physical Training Instructors Rules, 2010 respectively with effect from the date they join in the Government after appointment under these rules.
(vii) No arrears on any account whatsoever, (including arrears of salary, selection scale, Assured Career Progression or Career Advancement Scheme) shall be paid by the State Government for the period prior to the date of their joining in the Government after appointment under these rules.
(viii) Carry forward of the balance of Privilege Leave shall not be allowed. Employees shall be free to get payment of encashment of balance of P. L. from the respective grant-in-aid educational institutions.
[(ix) The persons who are appointed in the government service under these rules shall be governed by the provisions of the Rajasthan Civil Services (Contributory Pension) Rules, 2005 and the Provision of the Rajasthan Civil Service (Pension) Rules, 1996 shall not be applicable to them. Contributory Provident Fund Contribution, if not deposited by the Non- (Downloaded on 13/04/2022 at 09:05:34 PM)
(10 of 21) [CW-18382/2011] Government Aided Educational Institutions for the period prior to the date of their joining in the government after appointment under these rules, shall not be paid by the State Government.]
(x) The period of service in the aided institutions shall not be counted for payment of gratuity, The employees shall be free to obtain payment of gratuity from the respective grant in aid educational institution.
(xi) Each employee shall be required to execute an undertaking, in Form - II, that he/she voluntarily accepts all the terms and conditions of service prescribed under these rules and agrees to serve in the government educational institutions situated in the rural areas till attaining the age of superannuation in the service of Government." Bare reading of Rules 4 and 5 of the Rules of 2010 clearly indicate that a regularly appointed employee in Non-Government Aided Educational Institution (for short 'NGEI') working on a sanctioned and approved post can be given appointment on certain terms and conditions.
Rule 2(g) of the Rules of 2010 defines the word "employee", which is reproduced as under:-
"Rule 2(g) "employee" means an employee working in a recognized non-government aided educational institution and who is working against aided and sanctioned post."
As per Rule 2(g), the employee means an employee working against the aided and sanctioned post.
Now the core question is "Whether the petitioner was working against the aided and sanctioned post?"
Admittedly, the petitioner was appointed in the respondent-
College on 17.07.1986 on the post of Lecturer (Psychology) on probation. On completion of probation period, her services were confirmed on 15.12.1987. On 13.03.1992, the University of Rajasthan passed an order of approval of above appointment of the petitioner subject to the condition that she would obtain degree in M.Phil. in the respective subject of Post-Graduation and (Downloaded on 13/04/2022 at 09:05:34 PM) (11 of 21) [CW-18382/2011] she passed the same. On 20.02.1993, her services were terminated by the respondent-College and she submitted an appeal before the RNGEI Tribunal and the same was allowed on 02.05.2001 and her order of termination was quashed and a direction was issued to the respondent-College to reinstate her with all benefits and on 20.07.2001, she was allowed to join.
In the meantime, the RNGEI Rules, 1993 came into effect and the Government took a decision to grant 70% aid to the respondent- College vide order dated 11.01.1994. And on 08.02.1996 the Government approved and sanctioned the appointment of (1) Smt. Reena Shekhawat (2) Neelam Krishnaiya (3) Preeti Singh and (4) Dr. Manorama Tyagi on the post of Lecturer (Psychology) as the Screening Selection Committee approved the selection of the above four persons in its meeting dated 11.12.1995, meaning-thereby there were only four sanctioned, aided and approved posts of Lecturer in Psychology in the respondent-College upon which aid was given by the Government and the names of the above four persons were approved and sanctioned by the Government.
On 30.08.2001, the Joint Director (Law) College Education, Rajasthan, Jaipur, wrote a letter (Annexure R/2/1) to the Secretary of the respondent- College in which it has been mentioned that following four Lecturers are working on the approved, aided and sanctioned post:-
Sr. No. Name Date of Appointment
1. Smt. Reena Shekhawat 11.12.1995
2. Smt. Priti Singh 11.12.1995
3. Dr. Manorama Tyagi 11.12.1995
4. Smt. Neelam Krishnaiya 26.02.1996
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It was specifically mentioned in the aforesaid letter dated 30.08.2001 that no aid was given to the post of the petitioner. Thus, the respondent- College is liable and responsible for the post of the petitioner. Hence, it is clear that the petitioner was not working on the sanctioned, approved and aided post of Lecturer (Psychology) in the College of the respondent No.2. This letter dated 30.08.2001 was well within the knowledge of the petitioner but the petitioner has not challenged the validity of the same and it appears that the petitioner has accepted the contents of this letter. Hence, the petitioner is estopped to raise the claim now that she is working on the sanctioned, approved and aided post of Lecturer (Psychology) since 01.04.1994.
It is the case of the respondent- College that the post of the petitioner was neither sanctioned nor approved by the Government. The respondent- College came in the list of the aided institutions w.e.f. 01.04.1994 but even then the post of the petitioner was never sanctioned nor aided.
Chapter V of the RNGEI Rules, 1993 deals with general conditions of service.
Rule 26 of the RNGEI Rules, 1993 deals with recruitment of employees in recognized institution. Rules 27 and 28 of the RNGEI Rules, 1993 deals with approval of appointment which are reproduced as under:-
"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 :-
(a) The following details shall be included in the advertisement to be published in the news paper :-
(i) Name & number of posts,
(ii) Required qualifications, (Downloaded on 13/04/2022 at 09:05:34 PM) (13 of 21) [CW-18382/2011]
(iii) Pay Scales,
(iv) Required experience,
(v) Other qualifications,
(vi) Minimum and maximum age on a specific date,
(vii) Number of post/posts reserved for Scheduled Caste/Tribes candidates.
(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 :-
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.
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
(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,
(d) The selection committee shall consist of the following :-
(i) Two representatives of the Managing Committee.
(ii) Head of the concerned institution.
(iii) One officer nominated by the Director of Education.
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.
(e) The nominee of the Director of Education to be a member of the Selection Committee shall be as follows :-
S. Name of Institution Status of
No. Posts Departmental
Officer
1 2 3 4
1 Principal Degree and Shastri Joint Director of
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Colleges Education
2 Principal Post-Graduate College The Director of
and Acharya Colleges Education
3 Lecturers/ Degree and P.G. Colleges Joint Director of Head of (General and Sanskrit) Education the Departme nts 4 Headmast Secondary, Upper Joint Director of er/Principa Primary Schools, Education (P and l including Praveshika and S and Sanskrit) Upadhyaya 5 Lecturers Sr. Secondary Schools, Addl. D.E.O./Dy.
School including Upadhyaya D.E.O. Or
Education Inspector of
Sanskrit
Education
6 Senior Secondary, Upper Headmaster/Prin
Teachers Primary Schools, cipal, Sr.
Montessory and other Secondary
special Schools including School or
Praveshika and Purva Upadhyaya
Praveshika
7 Teachers All Institutions Dy.
D.E.O./Inspector
of Sanskrit
Education
8 Ministerial All Institutions Dy. D.E.O./
Staff Inspector of
Sanskrit
Education
9 Organising Secondary Schools of D.E.O./Inspector
Secretary Special and Central Office of Sanskrit and other Education post of Special institutions
(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.
(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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27. Approval of Appointments.- The Managing Committee shall, within a fortnight of selection, forward the list of selected candidates, with its recommendations, alongwith information in the following proforma, to the competent authority as specified in Appendix - IX, for its approval :
S.No. Name of the post Reasons for posts becoming vacant Retirement Termination Resignation 1 2 3 4 5 Pay scale Name of Names of Names of Date of Qualificatio of the post persons members persons birth ns called for of the selected interview Selection Committee 6 7 8 9 10 11 Experien Norms Marks Date of Pay and Outstandi Remark ce fixed by given by initial pay ng s, if any the the appointm scales qualificati Selection Selection ent ons/exper Committe Committ ience e for ee to giving each marks candidate 12 13 14 15 16 17 18
28. Approval by Competent Authority.- The competent Authority may after -due consideration either approve the recommendations of the Managing Committee or reject the same for reasons to be recorded in writing."
The legality and constitutional validity of section 2(g) of the Rules of 2010 was challenged before the Division Bench of this Court in the case of Rajendra Prasad Sharma (supra) and the same was upheld by this Court by observing in para nos. 4, 16, 23, 24, 25, 28, 44, 65, 66 and 67 as under:-
"4. The grievance of the petitioners is that the action of the respondent-State in providing an option for absorption in the government service, only to those employees of the Non-
Government Aided Educational Institutions working on aided (Downloaded on 13/04/2022 at 09:05:34 PM) (16 of 21) [CW-18382/2011] sanctioned posts, ignoring the employees working on non-
aided sanctioned posts of the Non-Government Aided Educational Institutions, even though their appointment was made by the very same Selection Committee(s), which included a government nominee; is arbitrary, discriminatory and violative of the mandate of the Article 14 and 16 of the Constitution of India. The challenge has been made specifically to Rule 2(g) of the Rules of 2010, promulgated vide notification dated 29.11.2010, which reads thus:-
2(g). employee means an employee working in a recognized non-government aided educational institution and who is working against aided and sanctioned post.
16. Mr. Rakesh Sharma, learned counsel for the petitioner in D.B. Civil Writ Petition No.5641/2012 (Ghisa Ram Sharma Versus State of Rajasthan & Ors.) adopting the submissions made by the counsel preceding him, submitted that the initial appointment of the petitioner, on the post of Lab Assistant was against the sanctioned aided post, but the institute declined to accept grant-in-aid w.e.f. 01.04.2008, though the State Government did not stop the grant-in-aid of the institution and therefore, the petitioner could not be faulted for the action of the institution of the petitioner, declining to avail the facility of grant-in-aid. The learned counsel pointed out the instance of an employee of Bal Bharati Kothari School, Sikar, which received grant-in-aid upto 2010, and made an attempt to equate his case to that of the employee of Bal Bharati Kothari School, Sikar, in support of his claim, but the fact remains that the institution (Downloaded on 13/04/2022 at 09:05:34 PM) (17 of 21) [CW-18382/2011] of the petitioner did not avail of the grant-in-aid w.e.f.
01.04.2008.
23. The institution is under an obligation to file an application by 31st May of each year to the Director of Education as stipulated under Rule 17 of the Rules of 1993.
Rule 26 of the Rules of 1993 provides for procedure of recruitment of an employee in a recognized institution. Clause (d) of Rule 26 details out the constitution of the Selection Committee and clause (f) of Rule 26 provides for reservation policy, which shall be invariably followed by the aided institutions for all categories of services. The appointments made in accordance with the procedure provided under Rule 26 of the Rules of 1993 are subject to approval by the competent authority as per mandate of Rule 28 of the Rules of 1993 and it is only after the approval of the competent authority, the Managing Committee may make necessary appointment. The competent authority is defined under Rule 2(f) of the Rules of 1993. Scruples compliance of the Rules of 1993 may entitle an institution to claim grant-in-aid from the State Government and the posts are sanctioned by the Director of Education in accordance with the provisions of Rule 17 of the Rules of 1993. Therefore, an institution facilitated with grant-in-aid, is obliged to accord appointment on a sanctioned post as per procedure and subject to approval by the competent authority under the Rules of 1993. Hence, the category of employees so appointed constitutes a separate class.
24. The institutions are categorized under the advice of Grant-in-aid Committee and are accorded grant-in-aid even (Downloaded on 13/04/2022 at 09:05:34 PM) (18 of 21) [CW-18382/2011] to the extent of 80%. Further, the special category of the institutions engaged in education on experimental and pioneering lines, in accordance with the criteria laid down by the Department of Education, the grant-in-aid may extend upto 90%. Thus, the employees who are working against the aided and sanctioned posts and major part of their remuneration is provided by the State, they have been allowed an option to enter the Government Service under the Rules of 2010 whereas with reference to the employees working on unaided posts, the State has no financial burden.
25. The object underlying the promulgation of the 'Rules of 2010' was/is to stop the grant-in-aid of such aided posts where the employees opted for voluntary service under the Rules of 2010, and the same is a dying cadre so as to relieve the respondent-State of the financial burden.
28. Further, the provisions of the Act of 1989 and the Rules of 1993, provide for grant-in-aid to the educational institutions on submission of application in the prescribed form and subject to fulfillment of certain conditions. Moreover, grant-in-aid is sanctioned on yearly basis. There is no privity of contract for employment between the State and the Teachers since they are employees of the respective educational institutions.
44. It is not in dispute that there exist two set of posts in the Non-Government Aided Educational Institutions, one being aided sanctioned posts and another being non-aided sanctioned posts.
65. The State as a policy decision has decided, in the backdrop of the fact that the employees, who are working on (Downloaded on 13/04/2022 at 09:05:34 PM) (19 of 21) [CW-18382/2011] aided sanctioned post, a major part of their remuneration is provided by the State and therefore, has restricted the entry to the rural service under the Rules of 2010, keeping in view the financial burden; cannot be faulted, for the reason that the State Government will stop the grant-in-aid on such posts whereas on the other hand the employees working on non-aided sanctioned post, the State Government has no financial burden to pay their salary and remuneration etc. Further, Section 7 of the Act of 1989 is an enabling provision and sufficient guidelines have been provided for the exercise of the power. The reasons for exercise of the power are valid and germane. As a one time measure, only those employees of the Non-Government Aided Educational Institutions working against aided and sanctioned posts, have been accorded option to enter into the Government Service under the Rules of 2010 as per the mandate of Rule 2(g).
66. Article 14 guarantees similarity of treatment contra- distinguished from identical treatment. Mere differentiation or inequality of treatment does not per se amount to discrimination. There is no right to grant-in-aid since it depends upon the financial resources and other relevant considerations. The classification under the Rules of 2010 is founded on an intelligible differentia with a rational relation to the object sought to be achieved. The learned counsel for the petitioners could not persuade us for any tenable reason, pointing out any clear transgress of the constitutional principle(s).
67. Thus, for the reasons and discussions detailed out hereinabove, we have no hesitation in holding that Rule 2(g) (Downloaded on 13/04/2022 at 09:05:34 PM) (20 of 21) [CW-18382/2011] of the Rules of 2010 issued vide notification dated 29.11.2010 is perfectly legal and valid."
The same question arose before this Court in the case of Ravi Shankar Srivastava & Ors. (supra) and it was decided that the employees who are working on non-aided posts, are not entitled to claim any benefit to get appointment under the Rules of 2010. For ready reference, the view expressed by this Court is reproduced as under:-
"In my opinion, an attempt has been made by the Government to grant an opportunity to those employees working in aided schools against aided posts, for which, the Government is providing funds and finance. This action of the Government is aimed at maintaining educational standards in the rural areas also. Further, appointments on aided posts is required to be made after following procedure laid down in the rules; but, appointments on management or other than aided posts, upon which, aided institutions are not following the procedure laid down in the rules for appointment, therefore, those employees cannot be treated at par with the employees working against the aided posts because, at the time of sanctioning funds and finance, there is rider imposed by the Government that appointment to the post shall be made while following the rules and qualifications for the said post shall also be considered at the time of providing appointment. In this view of the matter, if any, benefit is extended to those employees who are working in the aided schools against sanctioned aided posts, then such benefit cannot be claimed by other employees (Downloaded on 13/04/2022 at 09:05:34 PM) (21 of 21) [CW-18382/2011] who are working against management or other non-aided posts."
Since the appointment of the petitioner was not as per the provisions and procedure contained under Rules 26, 27 and 28 of the RNGEI Rules, 1993, hence, it cannot be said that the petitioner was working on the approved, sanctioned and aided post. The respondent- College was not getting any aid from the government against the post of the petitioner. Since the petitioner was not working on the approved and sanctioned post of Lecturer (Psychology), hence, the petitioner is not entitled to get appointment in government service under Rule 4 of the Rules of 2010.
In view of the discussions made herein above, there is no merit in this petition and the same is accordingly dismissed.
Stay application as well as all pending application(s), if any, also stand dismissed.
(ANOOP KUMAR DHAND),J Sharma NK/32 (Downloaded on 13/04/2022 at 09:05:34 PM) Powered by TCPDF (www.tcpdf.org)