Rajasthan High Court - Jaipur
Sri Sanatan Dharm Shastri Sans vs State Of Raj & Ors on 19 September, 2013
Author: Amitava Roy
Bench: Amitava Roy
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT D.B. Civil Special Appeal (Writ) No.522/2013 Sri Sanatan Dharm Shastri Sanskrit Mahavidyalaya Versus State of Rajasthan & Ors. Date of Judgment :: 19th September, 2013 PRESENT HON'BLE THE CHIEF JUSTICE MR. AMITAVA ROY HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA Mr.Sanjeev Prakash Sharma, Senior Counsel assisted by Mr. Gaurav Sharma, for appellant. Mr.D.P. Sharma, for respondent-employee. <><><> BY THE COURT : (Per Hon'ble V.S. Siradhana, J.)
The subject matter of the present intra-court appeal is the judgment and order dated 12th March, 2013 wherein the learned Single Judge while adjudicating upon the impugned order dated 30th July, 2001 passed by the Rajasthan Non-Government Educational Institutions Tribunal (hereinafter referred to as 'the Tribunal', for short) upheld the directions of the Tribunal for grant of regular pay scale with arrears to the respondent No.4 (Sunil Kumar Rajoriya), an employee of the appellant Institute from the date the respondent-employee was reinstated in service in compliance of the impugned order dated 30th July, 2001 passed by the Tribunal. However, the benefit of pay fixation has been modified and has been made admissble on notional basis from the date of application before the Tribunal.
2. Necessary facts for adjudication of the present controversy are that the respondent-employee was engaged on 17th December, 1990 on daily wages basis, but as pleaded by the appellant, he abandoned the service w.e.f. 7th July, 1995. It is further the case of the appellant Institute that the Chairman of the Institute was not vested with the power to appoint the respondent-employee in view of the Grant-in-Aid Rules, 1963 (hereinafter referred to as 'the Rules of 1963', for short) and a valid appointment could only be made only by the Managing committee and therefore, the appointment was de-hors the rules and violative of mandate of Article 14 and 16 of the Constitution of India since the functions of the aided institutions are akin to the institutions of the Government. The appointment was also stated to be a 'back door entry'. According to the appellant, the respondent-employee was called upon to resume his duties as supplementary examinations were scheduled to be held on 20th July, 1995, but he failed to do so.
3. On the contrary, the respondent-employee pleaded that his appointment was at the instance of the appellant Institute, who paid him the salary and after putting him to work for almost five years, the appellant Institute was precluded from assailing its own order stating it to be in violation of the Rules of 1963 or on the anvil of Article 14 and/or 16 of the Constitution of India. Further, the Rules were not of statutory flavor and therefore, had no binding force since the Institute is a non-government Institute.
4. The Tribunal on the basis of the pleaded facts and after a careful scrutiny of the evidence brought on record by the parties as well as taking into consideration the provisions of the Rajasthan Non-Government Educational Institutions Act, 1989 (hereinafter referred to as 'the Act of 1989', for short) and Rajasthan Non-Government Educational Institutions Rules, 1993 (hereinafter referred to as 'the Rules of 1993', for short), made an elaborate discussion and on the appreciation of evidence arrived at the findings concluding that the term 'employee' does not make any distinction between the 'employee' engaged on daily wages basis or otherwise. The Tribunal on a careful analysis of the facts and appreciation of the evidence further recorded a finding to the effect that the action of the appellant Institute in terminating the service of the respondent-employee, was in violation of the provisions of the Act of 1989 and the Rules of 1993 framed thereunder and therefore, allowing the claim of the respondent-employee held him entitled to reinstatement with continuity in service and regular pay scale as well as pay fixation along with allowances; which has been modified by the learned Single Judge as indicated hereinabove.
5. We have heard the learned counsel for the appellant Institute and the learned counsel for the respondent-employee and with their assistance perused the material available on record.
6. The learned counsel for the appellant Institute reiterating the stand taken in the writ application assailed the impugned order of the Tribunal dated 30th July, 2001 and the order of the learned Single Judge dated 12th March, 2013 on the ground that the appointment of the respondent-employee was not on a regular post, rather purely temporary in nature, on daily wages basis, without conducting any selection and therefore, a back door entry contrary to the mandate of Article 14 and 16 of the Constitution of India. Further, according to the learned counsel for the appellant Institute, the findings arrived at by the Tribunal are based on surmises and conjectures and at the same time contrary to the material available on record, hence, perverse. Moreover, the respondent-employee himself abandoned the job and also indulged in fabricating the documents since two documents produced in evidence did not bear dispatch number. Since the appointment was void-ab-initio, inoperative and a nullity in the eye of law and therefore, his continuation in the employment did not validate and legalize the initial illegal appointment. It was further contended that the initial appointment of the respondent-employee on daily wages basis, that too, without there being any sanctioned aided post did not confer any right of continuation in service or right to a post in any manner and thus is not entitled to any relief. Apart from voluntary abandonment by the respondent-employee, he did not turn up in spite of being called upon time and again.
7. 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.
8. We have given out thoughtful consideration to the rival submissions of both the parties and have perused the record. The Tribunal having considered the pleaded facts and evidence brought on record in a great detail, arrived at the findings on the basis of the pleadings of the parties and after appreciation of evidence brought on record. The learned Single Judge while scrutinizing the order dated 30th July, 2001 passed by the Tribunal, did not find any error in exercise of supervisory jurisdiction. However, the relief granted in favour of the respondent-employee has been modified in order to balance the equities between the parties.
9. By now, it is well settled proposition of law that the supervisory jurisdiction of the High Courts under Article 227 of the Constitution of India is confined to decision making process and not to correct an error to review or reassess the evidence on the basis of which the inferior Court or Tribunal purports to have passed the order. In the instant case at hand, the respondent-employee soon after termination of his employment, availed of the legal remedy as per law in the month of November, 1995 and his claim has been granted by the Tribunal with continuity of service and regular pay scale subsequently modified during the proceedings on the writ application on 21st September, 2004 and while finally adjudicating upon the matter, the relief with reference to fixation of pay, has been allowed on national basis from the date of application before the Tribunal. Taking into consideration the entire facts and circumstances of the case as well as material available on record as a consequence, we do not find any error in decision making process.
10. For the reasons detailed out hereinabove and in the light of the settled principle of law declared by the Hon'ble Supreme Court, we have no hesitation, on a cumulative consideration of the matter, to conclude that the view taken by the learned Single Judge, calls for no interference.
11. In the result, the intra-court appeal is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. Interim Application Nos.22805/2013 & 29196/2013 also stand closed.
(VEERENDR SINGH SIRADHANA), J. (AMITAVA ROY), CJ. Sunil/P.A.
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
(Sunil Solanki) P.A.