1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Shri Gurunanak Education Society & Anr. v. State of Rajasthan & Ors. D.B.CIVIL SPECIAL APPEAL NO.1564/1999 against the judgment dated 5.11.1999 passed by learned Single Judge. Date of Judgment :: 16th July, 2009 P R E S E N T HON'BLE MR.JUSTICE N.P.GUPTA HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Rajeev Purohit, for the appellants. None present, for the respondents. .... BY THE COURT : (PER HON'BLE GOVIND MATHUR,J.) The appellants have preferred this appeal to assail validity, correctness and propriety of the judgment dated 5.11.1999, passed by learned Single Judge affirming the order dated 19.9.1998, passed by the Rajasthan Non Government Educational Institutions Tribunal, Jaipur (hereinafter referred to as “the Tribunal”). 2 The factual matrix necessary to be noticed is that the appellants by an order dated 20.2.1997 terminated its employee Jaswant Singh from service due to non availability of adequate funds. A challenge given to the same was by the employee concerned, before the Tribunal by way of filing an appeal as per provisions of Section 19 of the Rajasthan Non Government Educational Institutions Act, 1989 (hereinafter referred to as “the Act of 1989”), came to be accepted vide order dated 19.9.1998 on the count that neither approval from the Director, Education as required under Section 18 of the Act of 1989 read with Rule 39 of the Rajasthan Non Government Educational Institutions Rules, 1993 (hereinafter referred to as “the Rules of 1993”) was taken by the management nor any opportunity of hearing was accorded before terminating the employee. The society, by way of filing a petition for writ before this Court questioned validity, correctness and propriety of the order dated 19.9.1998 on various counts including that termination of the employee was not stigmatic, and as such, there was no need to adhere the provisions of Section 18 of the Act of 1989 read with Rule 39 of the Rules of 1993. By the judgment impugned, learned Single Judge refused to interfere with the order passed by the Tribunal while exercising powers under Articles 226 and 227 of the Constitution of India. 3 It is contended by counsel for the appellants that the order passed by the Tribunal dated 19.9.1998 suffers from patent error as there is no need for adhering the provisions of Section 18 of the Act of 1989 read with Rule 39 of the Rules of 1993, if the termination is not stigmatic but simplicitor. It is asserted that employee Jaswant Singh was not terminated from service by causing any stigma and as such his termination from service was neither a dismissal nor a removal. Section 18 of the Act of 1989 provides that “subject to any rules that may be made in this behalf, no employee of a recognised institution shall 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”. Proviso to the provision aforesaid prescribes that no final order with regard to dismissal, removal or reduction in rank of an employee shall be passed unless prior approval of the Director of Education or an officer authorised by him in this behalf has been obtained. Sub-rule(2) of Rule 39 of the Rules of 1993 provides procedure, that is required to be adopted for removal or dismissal of the employee from service. As per the rule aforesaid after completion of inquiry against the delinquent employee, the records of the inquiry together with a copy of the notice given and the representation, if any, made by the employee is 4 required to be forwarded by managing committee of the recognised institution to the Director of Education or an officer authorised by him in this behalf, for necessary approval. From reading of the provisions of Section 18 of the Act of 1989 and Rule 39(2) of the Rules of 1993, it is apparent that these provisions relate to imposition of penalty i.e. of dismissal, removal or reduction in rank. In the case in hand the employee was neither dismissed nor removed from service but was terminated due to non-availability of adequate funds. Such discontinuation from service is nothing but termination simplicitor and, therefore, no need was there for the appellants to adhere the provisions of Section 18 of the Act of 1989 read with Rule 39(2) of the Rules of 1993. The error, therefore, is apparent in the order passed by the learned Tribunal while holding that termination of the respondent employee was bad being in violation of Section 18 of the Act of 1989 read with Rule 39(2) of the Rules of 1993. Learned Single Judge also failed to appreciate that the provisions aforesaid are having no application in present case. In view of whatever said above, this appeal deserves acceptance and, therefore, the same is allowed. The writ petition filed by the appellants is also allowed and the appeal preferred by the 5 respondent employee as per Section 19 of the Act of 1989 is dismissed, accordingly, the order dated 19.9.1998 passed by learned Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and the judgment passed by learned Single Judge dated 5.11.1999 are hereby quashed. It shall be open for the respondent employee to challenge his termination from service on the grounds other than adjudicated in this appeal by way of availing appropriate remedy as per law. ( GOVIND MATHUR ),J. ( N.P.GUPTA ),J. kkm/ps