Rajasthan High Court - Jaipur
Agrawal Shiksha Samiti (Shri) And Anr. vs State Of Rajasthan on 24 March, 2006
Equivalent citations: RLW2006(2)RAJ1642, 2006(3)WLC1
Author: Prem Shanker Asopa
Bench: Prem Shanker Asopa
JUDGMENT Prem Shanker Asopa, J.
1. By this writ petition the petitioners- Institution seeks to challenge the order dated 1.8.1994 of the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur (for short 'the Tribunal) in case No. 127/94 whereby the Tribunal has directed the petitioners-Institution to fill the vacant post of Library LDC by promoting respondent No. 3 Beni Prasad Saini, who is class-IV employee.
2. Briefly stated the relevant facts of the case are that the respondent No. 3 filed an appeal before the Tribunal for seeking direction for filling the post of Library LDC by promoting him and further the advertisement issued for filling the same be quashed. It has also been prayed that in case during pendency of the appeal, the post is filled in pursuance to the said advertisement, then the same be declared illegal and contrary to law. In the appeal before the Tribunal, the respondent No. 3 has submitted that he is class-IV employee in Agrawal College since 25 years having qualification of Higher Secondary with Certificate in library science and a post of Library LDC is vacant in the college, hence, the same be filled by promotion taking into consideration the Rajasthan Subordinate & Ministerial Staff Service Rules, 1957 (for short 'the Rules of 1957') wherein 13% quota is reserved for filing the post of LDC from class-IV. He has also submitted that one Shri Awdesh Kumar - Class IV employee was given promotion to the post of Lab Assistant.
3. The reply was filed by the petitioners-Institution before the Tribunal and it was submitted that there is no provision in the Rajasthan Non-Government Educational Institutions Act, 1989 (for short 'the Act of 1989') and the Rajasthan Non-Government Educational Institutions Rules, 1993 (for short 'the Rules of 1993') for filling the post by way of promotion and further it provides for direct recruitment of all the posts. It was further submitted that the Rules of 1957 are not applicable to the educational institution covered by the Act of 1989, rather Rules are applicable only to the employees of the State Government. It was also submitted that no direction can be issued for granting promotion, more particularly, when there is no provision in the Act of 1989 and the Rules of 1993 for doing so. The petitioners- Institution in its reply before the Tribunal has further denied that Shri Awdesh Kumar was given promotion from class-IV post to the post of Lab Assistant and it was submitted that he was class- IV employee in Agarwal Senior Secondary School which is the different institution and he was appointed by direct recruitment on the post of Lab Assistant.
4. The Tribunal after hearing both the parties, considered the aims and objects of the Act of 1989, Section 29 of the Act of 1989 and grant of selection scale on completion of 9, 18 and 27 years of service of the Government servants which was been made applicable to the non-Government institution also and further the Tribunal has relied on a Supreme Court judgment in Raghunath Prasad Singh v. Secretary, Home (Police) Department, Government of Bihar and Ors. reported in AIR 1988 SC 1033 and vide its judgment dated 1.8.1994 came to the conclusion that the respondent No. 3 is working as class-IV employee since 25 years and has a right to be promoted as Library LDC. While deciding the right of respondent No. 3 for the said vacant post of Library LDC, has given the finding that the Tribunal has the jurisdiction to give judgment on the issue as there is a dispute with regard to service condition of promotion. The relevant portion of the aforesaid judgment of the Tribunal is as follows:
mijksDr foospu ds i'pkr vf/kdj.k dk fu"d"kZ gS fd izkFkhZ csuh izlkn tks fd djhc 25 o"kZ ls vizkFkhZ laLFkk esa lsokjr gS dk iqLrdky; dfu"B fyfid ds in ij inksUufr ikus dk vf/kdkj gSA IzkFkhZ fdUgh dkj.kksa ls ;g ij izkIr djus ds fy, v;ksX; gS ,slk dksbZ ekeyk vizkFkhZ i{k us vf/kdj.k dks ifjfpr ugha djk;k gSA Lo;a vizkfkhZ i{k blls iwoZ vo/ks'k dqekj prqFkZ Js.kh deZpkjh dks iz;ksx'kkyk lgk;d ds in ij inksUufr nh gSA vxj csuh izlkn dks vizkFkhZ i{k inksUufr ugha nsrs gSa rks izcU/k ¼esustesUV½ dks bl izdkj HksnHkko djus dh btktr ugha nh tk ldrhA jktLFkku jkT; us vius prqFkZ Js.kh deZpkjh ds fy, 13 izfr'kr ¼rsjg izfr'kr½ vkj{k.k dh lqfo/kk inksUufr dh ns j[kh gSA vf/kdj.k ds er esa ;g lqfo/kk futh f'k[k.k laLFkkij ykxw dh tkrh gS rks ;g U;k;iw.kZ o mfpr gSA vizkFkhZ ds fo}ku vf/koDrk us nyhy nh fd ,d in esa vkj{k.k ykxw ugha gksrk gSA bl laca/k esa vf/kdj.k dk er gS fd ;g nyhy vLohdkj dh tkrh gS D;ksafd vizkFkhZ laLFkk us dfu"B fyfid Lrj ds dqy in fdrus gS ;g ugha crk;k x;k gSA vr% ,d in dks vkj{k.k ls Hkjk ugha tk ldrkA ;g nyhy vLohdkj dh tkrh gSA mijksDr foospu ds i'pkr ;g vf/kdj.k ;g fu"d"kZ nsrk gS fd futh f'k{k.k laLFkk ds prqFkZ Js.kh in ds fy, inksUufr dk volj Lohdkj dh tkuh pkfg;sA Qyr% vkosnu bl izdkj Lohdkj fd;k tkrk gS%& vkns'k vkosnu Lohdkj fd;k tkrk gS vizkFkhZ dks vkns'k fn;k tkrk gS fd os viuh laLFkk esa iqLrdky; dfu"B fyfid dk fjDr in csuh izlkn dks nsdj HkjsaA
5. Against the aforesaid judgment of the Tribunal, the present writ petition has been filed by the Institution on the same grounds taken in reply to the appeal and while dealing with the same, the Tribunal has committed error apparent on the face of the record with additional ground that the Tribunal has no authority to issue direction for promotion.
6. The State Government has filed reply to the writ petition but no reply to the writ petition has been filed by respondent No. 3. The State in its reply has submitted that the Rules of 1957 are exclusively applicable to the employees of the State Government and further aims, objects and reasons cannot be allowed to be read some thing which is not provided in the provisions of the Act or Rules. It has also been submitted by them in reply that all appointments are to be made by direct recruitment subject to approval of Director of College Education.
7. Although no reply has been filed by respondent No. 3 but the memo of appeal filed by him before the Tribunal is on record as Annexure-1.
8. The submission of Shri Maloo, learned Counsel for the petitioners-Institution is that as per the Act of 1989 and the Rules of 1993 all posts are required to be filled by direct recruitment and there is no provision for promotion. He further submits that the Rules of 1957 are not applicable on the non- Government educational institutions and the grant of selection scale is in lieu of promotion. The Tribunal has committed serious illegality in giving the finding that the aforesaid submissions are limited and narrow and the same are not the solution of the problem and further everything is not to be written in law. The further submission of Shri Maloo, learned Counsel for the petitioners-Institution is that apart from above, the Tribunal has seriously committed an illegality in giving the direction to fill the post of Library LDC by promoting respect No. 3 as the Courts can give direction to consider the case for promotion where promotional avenue exists but can not give direction to make promotion. Shri Maloo has also submitted that it is true that the State Government has power to regulate the terms and conditions of employees of the non-Government educational aided institutions as per Section 16 of the Act of 1989 but in the said Section, the term regulate recruitment and conditions of service "did not include the promotion".
9. The State Government has also not supported the judgment of the Tribunal by adopting the aforesaid submissions.
10. None has appeared on behalf of respondent No. 3 to support the judgment of the Tribunal.
11. Heard learned Counsel for the parties, perused the record of the writ petition and further considered the submissions made by the petitioners-Institution and the State Government.
12. Section 16(1) of the Act of 1989 is reads as follows: -
16. Power of the State Government to regulate the term and conditions of employment. - (1) The State Government may regulate the recruitment and conditions of service, including conditions relating to qualifications, pay, gratuity, insurance, age of retirement, entitlement of leave, conduct and discipline, of persons appointed as employees of aided institution in the State.
Provided that the rights and benefits accruing to an employee of an existing institution under the grant-in-aid rules in force at the commencement of this Act shall not be varied to the disadvantage of such employee:
Provided further that every such employee shall be entitled to opt for such terms and conditions of service as were applicable to him immediately before the commencement of this Act:
Provided also that, irrespective of the age of retirement prescribed, action may be taken for compulsory retirement of such an employee after completion of 25 years of service or on attainment of the age of 50 years whichever is earlier, in accordance with the procedure as may be prescribed.
(2)...
13. From the pleadings of the parties and submissions made by them in the light of Sections 16 and 17 of the Act of 1989, Rules 26, 27 and 28 of Chapter-V of General Conditions of Service of the Rules of 1993 as well as the judgment of the Tribunal, following questions emerge for consideration: -
(1) Whether term regulate the recruitment and condition of service under Section 16(1) of the Act of 1989 includes promotion also. In other words, whether the promotion is a condition of service.
(2) Whether an employer is under obligation to create promotional avenues.
(3) Whether grant of selection scale on completion of 9, 18 and 27 years of service is a substitute for promotion.
(4) Whether any direction for promotion can be issued by the Court.
14. (1) Whether term regulate the recruitment and condition of service under Section 16(1) of the Act of 1989 includes promotion also. In other words, whether the promotion is a condition of service:
The Supreme Court in State of Madhya Pradesh v. Sardul Singh 1970 SLR 101, in para Nos. 8 and 9, has held that 'condition of service' is an expression of wide import which means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it, in matters like pension. The same view has been followed in Lily Kurian v. Sr. Lawina 1979 (1) SLR 26, in para No. 13 and it has been held that expression 'condition of service' includes everything from the stage of appointment to the stage of termination of service and even beyond, and relates to matters pertaining to disciplinary action and in State of Punjab v. Kailash Nath 1989 (1) SLR 12, in para Nos. 6 and 7 dealing with a case of prosecution against a retired Government employee, the Supreme Court while interpreting the term "condition of service", further followed the judgment of Sardul Singh (supra), and it was held that in the normal course what falls within the purview of the term "condition of service" may be classified as salary or wages including subsistence allowance during suspension, the periodical increments, pay-scale, leave, Provident Fund, Gratuity, Confirmation, promotion seniority, tenure or termination of service, compulsory or premature retirement, superannuation, pension, changing the age of superannuation deputation and disciplinary proceedings. Para No, 7 of the aforesaid judgment is as follows: -
7. In the normal course what falls within the purview of the term "condition of service" may be classified as salary or wages including subsistence allowance during suspension, the periodical increments, pay-scale, leave, Provident Fund, Gratuity, Confirmation, promotion, seniority, tenure or termination of service, compulsory or premature retirement, superannuation, pension, changing the age of superannuation deputation and disciplinary proceedings. Whether or not a Government servant should be prosecuted for an offence committed by him obviously cannot be treated to be something pertaining to conditions of service. Making a provision that a Government servant, even if he is guilty of grave misconduct or negligence which constitutes an offence punishable either under the Penal Code or Prevention of Corruption Act or an analogous law should be granted immunity from such prosecution after the lapse of a particular period so as to provide incentive for efficient work would not only be against public policy but would also be counter productive. It is likely to be an incentive not for efficient work but for committing offence including embezzlement and misappropriation by some of them at the fag end of their tenure of service and making an effort that the offence is not detected within the period prescribed for launching prosecution or manipulating delay in the matter of launching prosecution. Further, instances are not wanting where a Government servant may escape prosecution at the initial stage for want of evidence but during the course of prosecution of some other person evidence may be led or material may be produced which establishes complicity and guilt of such Government employee. By that time period prescribed, if any, for launching prosecution may have expired and in that even on account of such period having expired the Government servant concerned would succeed in avoiding prosecution even through there may be sufficient evidence of an offence having been committed by him. Such a situation, in our opinion, cannot be created by framing a rule under Article 309 of the Constitution laying down an embargo on prosecution as condition of service.
15. The Supreme Court has further held in Sitaram Jivyabhai Gavali v. Ramjibhai Potiyabhia Mahala and Ors. that new condition of service can be prescribed by executive order. The relevant para No. 13 of the aforesaid judgment is as follows: -
13...It is well recognised that a new service condition may be brought into effect by an executive order and such condition would remain in force as long as it is not repealed either expressly or by necessary implication by another executive order or a rule made under the proviso of Article 309 of the Constitution or by a statute.
16. Thus it can safely be concluded that not only the conditions of service which are initially prescribed will be covered by the terms and conditions of the service but the same can also be subsequently prescribed either by Rules or by executive order.
17. Promotion is a condition of service as held by the Supreme Court in State of Maharashtra v. Jagannath Achyut Karandikar 1989 (2) S.L.R. 31. In para No. 7 of the aforesaid judgment, the Supreme Court has also heldahat the Government preserved power to dispense with, or relax the requirements of any rule regulating "the condition of service of Government servants; or any class there of"'. The relevant portion of para No. 7 of the aforesaid judgment is reproduced hereunder for ready reference: -
7...The aforesaid Rules expressly provided power to the Government to grant more chances for passing the examination in any individual case or in class of cases. Under the 1955 Rules, the Government preserved power to dispense with, or relax the requirements of any rule regulating "the conditions of service of Government servants; or any class there of". In the exercise of this power, the Government could dispense or relax the operation of any rule, if it cause undue hardships in any particular case. It is needless to state that this power includes the power to relax the conditions prescribed for promotion since promotion is a condition of service. There is no restriction as to the exercise of the power or discretion.
18. As regards condition of service detailed out in Section 16(1) of the Act of 1989, the expression "condition of service" as mentioned in Section 16(1) of the Act of 1989 is inclusive, therefore, the same has to be given the meaning of wide import. The list of service conditions illustrated in the said Section is inclusive and not exhaustive. The Supreme Court while interpreting the word "includes" in definition "Industry" under Section 2(j) of the Industrial Disputes Act, 1947 in the case of The State of Bombay and Ors. v. The Hospital Mazdoor Sabha and Ors. , in para No. 10, interpreting the inclusive definition, has held that the inclusive definition denote extension and cannot be treated as restricted in any sense. Where the Courts are dealing with an inclusive definition, it would be inappropriate to put a restrictive interpretation upon terms of wider denotation. Para No. 10 of the aforesaid judgment is reproduced hereunder for ready reference: -
10. There is another point which cannot be ignored. Section 2(j) does not define "industry' in the usual manner by prescribing what it means; the first clause of the definition gives the statutory meaning of "industry" and the second clause deliberately refers to several other items of industry and brings them in the definition in an inclusive way. It is obvious that the words used in an inclusive definition denote extension and cannot be treated as restricted in any sense. (Vide: Stroud's "Judicial Dictionary", Vol. 2, p. 1415), Where we are dealing with an inclusive definition it would be inappropriate to put a restrictive interpretation upon terms of wider denotation.
19. The said judgment has been held to be a good law by the majority view of the seven Judges Constitution Bench of the Supreme Court in Banglore Water Supply @ Sewerage Board v. A. Rajappa and Ors. , in para No. 140, while again interpreting the term "industry" which was given a wide import. Similarly the Supreme Court in State of Maharashtra v. Labour Law Practitioners' Association and Ors. , in para No. 10, has held that term "District Judge" indicates that a wide interpretation is to be given to the expression "District Judge'. The extensive definition of a District Judge under Article 236 is inclusive Judge of the Labour Court and the Judge of the Industrial Court.
20. In view of the above, not specifying the term 'promotion' as a condition of service in Section 16(1) of the Act of 1989 is of no help to the petitioners. The term of regulate condition of service will include promotion also.
21. As concluded herein above, even new condition of service for promotion can be laid down by the State Government, we have no hesitation in holding that the State Government can still make promotion as a condition of service either by amending the rules or by executive order for employees of non-Government educational institutions.
22. (2) Whether an employer is under obligation to create promotional avenues:
The Supreme Court in Raghunath Prasad Singh v. Secretary, Home (Police) Department, Government of Bihar and Ors. (supra), has held in para No. 4 of the aforesaid judgment that reasonable promotional opportunities should be available in every wing of public service that generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects, the service is bound to degenerate stagnation kills the desire to serve properly and the State of Bihar was directed to provide at least two promotional opportunities. Para No. 4 of the aforesaid judgment is as follows: -
4. Before we part with the appeal, we would like to take notice of another aspect. In course of hearing of the appeal, to a query made by us, learned Counsel for the appellant indicated the reason as to why the appellant was anxious to switch over to the general cadre. He relied upon two or three communications which are a part of the record where it has been indicated that there is no promotional opportunity available in the wireless organisation. Reasonable promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects, the service is bound to degenerate stagnation kills the desire to serve properly. We would, therefore, direct the State of Bihar to provide at least two promotional opportunities to the officers of the State Police in the wireless organisation within six months from today by appropriate amendment of Rules. In case the State of Bihar fails to comply, with this direction, it should, within two months thereafter, give a fresh opportunity to personnel in the Police wireless organisation to exercise option to revert to the general cadre and that benefit should be extended to everyone in the wireless organisation.
23. In Council of Scientific and Industrial Research and Another v. K.G.S. Bhatt and Anr. , in para No. 9, the Supreme Court has considered the case of an employee who was left without opportunity for promotion for about 20 years and has observed that this is indeed a sad commentary on the appellant's management and has held as under: -
9...It is often said and indeed, adroitly, an organisation public or private does not 'hire a hand' but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. Every management must provide realistic opportunities for promising employees to move upward. "The organisation that fails to develop satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors. There cannot be any modern management much less any career planning, manpower development, management development etc. which is not related to a system of promotions.
24. Recently in the case of State of Tripura and Ors. v. K.K. Roy , the Supreme Court has affirmed the aforesaid two judgments.
25. Thus, question No. 2 is answered to the effect that every management must provide realistic opportunities for promising employees to move upwards.
26. (3) Whether grant of selection scale on completion of 9, 18 and 27 years of service is a substitute for promotion:
The main aim and object of the grant of selection scale is conferment of the higher scale on the same post on completion of 9, 18 and 27 years of service when a employee is not getting first, second and third promotion within the aforesaid period but the same cannot be a substitute for promotion as the promotion results in exaltation. The selection scale has been further provided to avoid stagnation on the same post also on account of achieving maximum of the scale and further the Full Bench of this Court in S.R. Higher Secondary School and Anr. v. Raj. Non-Government Educational Institutions Tribunal, Jaipur and 23 Ors. 2002 (3) WLC 586, in para No. 17, has held that the grant of selection scale is not a promotion to higher post but a higher pay scale on the same post. Thus, the contention of the petitioner that grant of selection scale is a substitute for promotion, has no force and the question is answered in the manner that selection scale on the same post is not a substitute for promotion.
27. (4) Whether any direction for promotion can be issued by the Court:
It is well settled that no direction can be issued for promoting an employee. Only a direction for consideration of promotion as per existing rules or orders can be given. If any reference is needed, then we may refer the case of N.F. Sali v. State of Karnataka and Ors. reported in 1992 (5) S.L.R. 637 and Life Insurance Corporation of India and Ors. v. Jagmohan Sharma and Ors. . In case there is no promotional avenues, then the Court certainly direct the respondents to create promotional avenues in the light of the aforesaid judgments of the Supreme Court and consider the case of employee accordingly.
28. In view of the above, we affirm the finding of the Tribunal for creation of promotional opportunities and the final direction for promoting respondent No. 3 is set-aside. Resultantly, the Tribunal's order is modified as under: -
(1) Respondent No, 1 is directed to create promotional avenues from class-IV to L.D.C. in non-Government Educational Institutions in the light of the judgments of the Supreme Court and this judgment within a period of six months.
(2) After creation of the promotional avenues, the petitioners are directed to consider the case of respondent No. 3 and other eligible class-IV employees accordingly within a period of one month and pass necessary order.
29. The petition stands disposed of accordingly.