Rajasthan High Court - Jodhpur
Secretary,Mana.Commi vs Smt. Shakuntala Joshi on 10 April, 2017
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas, G.R. Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 861 / 2007
Secretary, Managing Committee, Shri Bhairav Ratan Matra, Senior
Secondary School, Beganiyon Ka Chowck, Bikaner, Raj.
----Appellant
Versus
Smt. Shakuntala Joshi wife of Shri Kishore Chandra Joshi, aged
about 43 years, resident of Giriraj Kutir, Outside Nathusar Gate,
Bikaner, Raj.
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Kuldeep Mathur
For Respondent(s) : Mr. Vineet Jain
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE G.R. MOOLCHANDANI Judgment Per Hon'ble Mr. Justice Gopal Krishan Vyas 10/04/2017 The instant appeal has been filed by the appellant under Article 215 of the Constitution of India against the order dated 28.5.2007 passed by the learned Single Judge in SBCWP No.5356/2004 whereby the learned Single Judge set aside the impugned order dated 6.10.2004 passed by the Rajasthan Non- Government Educational Institution Tribunal, Jaipur and allowed the appeal preferred by the respondent-petitioner under Section 19 of the Rajasthan Non-Government Educational Institution Act, 1989 (hereinafter referred to as the Act of 1989 for short), so also held the order dated 2.4.2003 passed by the appellant institution (2 of 6) [SAW-861/2007] for terminating the services of the respondent petitioner illegal and quashed the same and issued direction to reinstate the respondent petitioner as Assistant Teacher with all consequential benefits.
The instant appeal was listed before the coordinate bench on 21.9.2007. On that date, the following order was passed by the Division Bench of this Court, which reads as under:
"Heard learned counsel for the appellant. The appeal is admitted only on the issue about grant of consequential financial benefits as a result of quashing of the order of termination. However, the appeal against setting aside the order of termination of the service of the petitioner respondent being indisputably not made by following the procedure laid under Rule 39(2) of the Rules under the Act of 189 does not suffer from any infirmity. The contention that a part time employee is not an employee at all of the institution cannot be accepted as held by the learned Single Judge.
Issue notice. Notices returnable within four weeks. Meanwhile, the claim for arrears of emoluments prior to the date of reinstatement shall remain stayed. This order shall be subject to the reinstatement of respondent."
Upon perusal of the above order, it is obvious that notices were issued only with regard to claim for arrears prior to the date of reinstatement.
Learned counsel for the appellant vehemently argued that the learned Single Judge without recording any finding with regard to mode of appointment of the respondent-petitioner issued direction to reinstate the respondent-petitioner as Assistant Teacher whereas she was appointed on part time basis in the appellant institution, therefore, the direction for reinstatement of the respondent-petitioner as Assistant Teacher with all consequential benefits is not in accordance with law and illegal (3 of 6) [SAW-861/2007] because the application filed under Section 19 of the Act of 1989 by the respondent -employee before Rajasthan Non-Government Educational Institution, Jaipur was dismissed on 6.10.2004. Therefore, now direction for reinstatement on the post of Assistant Teacher with all consequential benefits deserves to be quashed because respondent-petitioner was appointed on part time basis.
Per contra, learned counsel appearing on behalf of the respondent-petitioner vehemently argued that no post of part time teacher is in existence or permissible under the Act of 1989, therefore, there was no question for the learned Single Judge to adjudicate the said controversy. The order has been passed for reinstatement in the lowest post of teacher, which is known as Assistant Teacher, therefore, there is no error in the direction given by the learned Single Judge for reinstatement on the post of Assistant Teacher, therefore, the appellant institution is under obligation to comply with the direction given by the learned Single Judge for reinstatement of respondent-petitioner as Assistant Teacher and to grant all consequential benefits.
After hearing learned counsel for the parties, first of all, it is required to be observed that finding of the learned Single Judge for quashing the termination order has already been upheld while passing interim order by the coordinate bench on 21.9.2007, therefore, obviously, we are required to adjudicate the question of entitlement of respondent-petitioner on the post of Assistant Teacher with all consequential benefits.
It is admitted fact that at the time of appointment, the respondent-petitioner was possessing qualification of Post (4 of 6) [SAW-861/2007] Graduation, more so, M.A. and B.Ed and she was provided appointment way back in the year 1994. The appellant institution was utilizing her services as regular teacher, but not make her payment of salary to her in parity with other teachers. Admittedly, for the said claim a representation was made by her on 1.4.2003 to the Managing Committee but appellant institution instead of considering grievances of the respondent-petitioner terminated her services w.e.f. 2.4.2003, which was subject matter of the litigation.
In our opinion, when respondent-petitioner was qualified and her services were utilized by the appellant institution as regular teacher then obviously under Article 39D of the Constitution of India there was no question to pay less salary than the teacher working on regular basis. The learned Single Judge while considering entire facts of the case finally allowed the writ petition and quashed the judgment of the learned tribunal and issued direction for reinstatement for the post of Assistant Teacher with all consequential benefits.
In our opinion, no error has been committed by the learned Single Judge to quash the orders of termination and tribunal and to reinstate of respondent-petitioner in service on the post of Assistant Teacher with all consequential benefits. Therefore, no interference is called for in the judgment impugned. However, learned counsel for the appellant submits that at present appellant institution is not getting any aid from the State of Rajasthan, therefore, due to poor financial conditions, the appellant institution is not in position to pay arrears, therefore, the order of (5 of 6) [SAW-861/2007] the learned single Judge for granting consequential benefits may be modified and arrears right from initial appointment to the judgment dated 28.5.2007 may kindly be waived. The appellant institution is ready to pay arrears w.e.f. 28.5.2007 in the pay scale of Assistant Teacher as ordered by the learned Single Judge.
We have considered the aforesaid prayer made by the learned counsel for the appellant and it is ordered that the salary of respondent-petitioner may be fixed in the pay scale of Assistant Teacher w.e.f. her initial appointment, which is 5.1.1994 and after fixation of salary, the amount of arrears may be calculated upto 28.5.2007,the date of which the learned Single Judge passed the order for granting all consequential benefits for the post of Assistant Teacher and out of total arrears upto the said date, 50% amount may be paid to the respondent-petitioner, but the arrear of salary from 28.5.2007 to the date of retirement of respondent- petitioner shall be calculated after fixation of the salary and be paid as ordered by the learned Single Judge for the post of Assistant Teacher. The entire exercise may be completed within a period of four months.
Consequently, the special appeal is hereby dismissed with above observations and directions.
(G.R. MOOLCHANDANI)J. (GOPAL KRISHAN VYAS)J. cpgoyal/ps (6 of 6) [SAW-861/2007]