1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.3788/1995. : : Bal Bharti Samiti & Anr. Vs. Non-Government Educational Institutions Tribunal & Anr. : : Date of Order 4.8.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. Sanjay Mehrishi for the petitioner. Mr. Sudhir Jain for the respondent No.2. Heard learned counsel for the parties. 2. This writ petition has been filed against the order dated 4.7.1995 passed by Rajasthan Non-Government Educational Institution Tribunal, Jaipur (for short “the Tribunal”) by which application filed by respondent-workman challenging the order of his termination has been allowed and the termination order dated 3.5.1994 has been quashed and set aside. 3. Shri Sanjay Mehrishi, learned counsel for the petitioner has argued that Tribunal has erred in law in 2 holding that termination of respondent No.2 Smt. Usha Batra was made without complying with provisions of Section 18 of Rajasthan Non-Government Educational Institution Tribunal Act, 1989 (for short “the Act”). It is contended that Section 18 requires as under :- “S.18. Removal, dismissal or reduction in rank of employees. Subject to any rules that may be made in this behalf, no employee of a recognized 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.” The proviso to Section 18 states that :- “No final order in this regard shall be passed unless prior approval of the Director of Education or an officer authorized by him in this behalf has been obtained.” Learned counsel contended that in the present case there was ample material before the Tribunal to hold that prior approval for terminating the services of petitioner was obtained and, therefore, the findings recorded by Tribunal are perverse and its judgment is, therefore, liable to 3 be quashed and set aside. Learned counsel referred to letter of the Office of Deputy Director, Kota Region, Kota sent to petitioner-institution calling upon it to reduce the sanctioned strength of Teacher Grade-II from 5 to only 4. It is contended that respondent No.2 being the junior most, was chosen for being recovered. Learned counsel submitted that this letter was written by the Deputy Director on the basis of an enquiry report, which was conducted by District Education Officer, Kota reference of which is made in the letter dated 20.12.1993 written by him to Assistant Accounts Officer, Primary & Secondary Education, Rajasthan, Bikaner wherein it was stated that total strength of students in the petitioner’s school in academic session for the year 1993-94 was reduced in all the classes from Class-I to Class-V and it was recommended that one post of Teacher Grade-III be accordingly reduced from number of posts approved for grant of sanction. Learned counsel submitted that it was on that basis that petitioner-institution served upon the respondent a notice dated 31.3.1994 and thereafter passed an order dated 3.5.1994, which was enclosed with cheque of salary of three months. Learned counsel also relied on the judgment of Supreme Court in N. Ramanatha Vs. State of Kerala : AIR 1973 SC, 2641 and argued that Supreme Court held that 4 abolition of post may have the consequence of termination of service, but such termination is not dismissal or removal within the meaning of Article 311 because both in case of dismissal and removal there is a stigma. The abolition of post however is not a personal penalty against the Government servant. Therefore, the opportunity of showing cause against the proposed penalty of dismissal or removal was not required in the case of abolition of post. 4. Shri Sudhir Jain, learned counsel for the respondent No.2 opposed the writ petition and submitted that prior approval for removal/dismissal of service of an employee, who has been working with a Non-Government Institution, is a mandatory requirement in terms of Section 18 of the Act even in the case of abolition of post. This view has been taken in the case of Saint Meera Brotherhood Society Vs. State of Rajasthan & Ors. : WLC 2006 (1), 677. Learned counsel submitted that although judgment of Division Bench is a subject matter of challenge before the Supreme Court and operation of said judgment has been stayed, but nevertheless the aforesaid judgment has so far not been reversed. Learned counsel also relied on the judgment in the case of State of Rajasthan & Ors. Vs. Jagdish 5 Narain Chaturvedi : Civil Appeal No.3620/09 (arising out of SLP (C) No.2848 of 2006) decided on 8.5.2009 and argued that in para No.12 of the said judgment, it has been held that seniority could be counted only from the date of confirmation. Learned counsel submitted that assertion made by petitioner that respondent Nop.2 was junior most teacher is wholly incorrect because respondent No.2 was the only confirmed teacher and all other teachers were yet not confirmed. Reference in this connection was made of order dated 13.8.1986 whereby respondent was confirmed from the date of her initial date of appointment. Moreover, learned counsel referred to letter of District Education Officer, Boys Institution, Kota dated 25.7.1994 addressed to petitioner- institution in which it was clearly mentioned that respondent No.2 cannot be taken as junior most teacher out of five teachers. It was, therefore, directed that she should be taken back in service and then action be taken in accordance with. 5. Upon hearing learned counsel for the parties and perusing the material on record, I find that first argument that there was indeed one surplus teacher with petitioner- institution as per determination made by Deputy Director of School Education and such teacher was required to be 6 removed in terms of direction dated 31.3.1994 needs to be upheld for the reasons to be stated shortly hereinafter. The District Education Officer deputed an Inspector to go and inspect the institution of petitioner. The local inspection was carried out by Additional District Education Officer, who in his report submitted that total strength of students from Class-I to Class-V in the school during the academic session 1993-94 was only 161, which could justify only four teachers so the District Education Officer, Kota wrote to the Director of School Education, Bikaner for reducing the strength of teachers by one post. Acting thereupon the Office of Deputy Director, Boys Kota Region, Kota served upon a notice in the strength of teachers of 5 to 4 thus reducing one post. Petitioner has placed on record the letter dated 3.5.1994 in which it was conveyed compliance of aforesaid direction to the Office of Deputy Director, Kota Region, Kota and requested that grant-in-aid be continued to be paid for remaining post and one post should be reduced on the strength of sanction for grant-in-aid w.e.f. 31.3.1994. What is, therefore, seen that whether in the facts of the case can it be said that Section 18 of the Act was still violated. Even if it is assumed for the sake of arguments that in the event of abolition of post also the prior sanction of the 7 Directorate of Education or any officer in this behalf could be necessary for passing consequential order of removal. Section 18 of the Act in its main provision requires that prior to making such removal/dismissal of rank, the employee of the recognized institution should be given by the management a reasonable opportunity against the action proposed to be taken, but this is subject to further proviso thereto where it is said that no final order in this regard was passed unless prior approval of Director of Education or an officer authorized by him in this behalf shall be obtained. Here in the instant case, removal of respondent No.2 was although founded on the instructions of Director of Education that there should be reduction in the number of sanction strength valid for payment of grant-in-aid from 5 to 4 thus in fact one post would no longer be available leading to consequential termination of one of the teachers, but then action of petitioner proceeds on the assumption that respondent No.2 was the junior most and, therefore, she was chosen for being removed. Many of the documents, which the petitioner is now relying before this Court including the letter dated 20.12.1993 which the District Education Officer, Boys Institutions, Kota wrote to the Director of Education informing about inspection carried out by Additional District 8 Education Officer and the letter dated 25.7.1994, which the respondent No.2 has produced with her reply by which the District Education Officer, Boys Institution, Kota wrote to the petitioner that respondent No.2 was not the junior most teacher, were not placed before the Tribunal for its consideration. Obviously, the Tribunal rendered its findings without appreciating such document, which are now being placed before this Court. In the normal course, a matter which has remained pending for so long ought not to be remanded to the Tribunal, but since in peculiar circumstances of this case, the very action taken by petitioner is founded on the assumption of the fact that respondent No.2 was junior most teacher, which assumption appears to be doubtful in view of letter dated 25.7.1994, which the respondent NO.2 has now produced before this Court, I deem it appropriate to remand this matter to the Rajasthan Non-Government Educational Institution Tribunal, Jaipur for deciding it afresh after giving opportunity to both the parties to produce material evidence on the question of nature of appointment of respondent No.2 as well as other teachers and decide this question as to whether the respondent No.2 was the junior most teacher out of the five teachers who were at the material time working with petitioner-institution. 9 With those observations and directions, the writ petition is disposed of. The matter is remanded back to the Tribunal with further direction to decide the same afresh within a period of one year from the date copy of this order is produced before it by either of the parties. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.H/4.