1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER Prathvi Raj Sharma Vs. Shree Sanatan Dharam Senior Secondary School, Sri Ganganagar & Ors. S.B.CIVIL WRIT PETITION NO.5467/2004 Date of Order : : 17/11/2008 PRESENT HON'BLE MR.JUSTICE H.R.PANWAR Mr.R.N.Upadhyay, for the petitioner. Mr.B.L.Bhati, Addl.Govt.Counsel for the respondent No.2. BY THE COURT: By the instant writ petition under Article 226 of the Constitution of India, the petitioner has challenged the order Annexure-5 dated 28th October, 2004 passed by the respondent No.3, Rajasthan Non-Government Educational Institution Tribunal, Jaipur (for short “the Tribunal” hereinafter) on an application No.232/2000 filed by the petitioner. 2 It appears from the record that the petitioner was engaged on the post of school Lecturer in History by the respondent No.1-Shree Sanatan Dharam Senior Secondary School which is a Non-Government Educational Institution (for short “the Educational Institution” hereinafter) on consolidated salary varying from each engagement. The petitioner was initially engaged on 15th September, 1994 and thereafter, every year in the opening session of the institution, he was engaged on the said post on consolidated salary and at the end of the academic session, his services were used to be terminated. His last engagement was w.e.f. 3rd July, 1997 to 20th May, 1998 and the order of termination dated 20th May, 1998 came to be challenged by the petitioner before the respondent Tribunal by way of an application under Section 21 of the Rajasthan Non-Government Educational Institution Act, 1989 (for short “the Act of 1989” hereinafter). By order impugned Annexure-5, the application of the petitioner came to be dismissed by the respondent-Tribunal. Hence, this writ petition. I have heard learned counsel for the petitioner and learned counsel appearing for the respondent-State. 3 It is contended by learned counsel for the petitioner that the respondent-Institution has given artificial break in service of the petitioner every year and therefore, the petitioner is entitled for reinstatement in service with continuity of the service as also the salary payable to the regularly appointed school Lecturer. Learned counsel has relied on two decisions of this Court in Kalu Ram Vs. State of Rajasthan & Anr. Vs. State of Rajasthan & Anr., 1992(3) WLC (Raj.) 713 and Jai Narain Vyas University, Jodhpur Vs. Narendra Singh Rathore & Ors., 1996(1) WLC (Raj.) 57; and a decision of Hon'ble Supreme Court in Jaswant Singh Vs. Punjab Poultry Field Staff Association & Ors., (2002)1 SCC 261. Learned counsel appearing for the respondents submits that the respondent Institution is a Non-Government aided institution and there being no sanctioned post of the Lecturer in History, the respondent Institution engaged the petitioner purely on temporary basis for a fixed term on the consolidated salary which was paid from the funds of students. The period of terms for which the petitioner was engaged has expired and therefore, according to the respondents, the petitioner is not entitled to get the salary equivalent to that of 4 those teachers/lecturers who have been selected after undergoing the process of the selection and have been given appointment against the sanctioned post. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties. From the order impugned, it appears that an application was filed by the petitioner before the Rajasthan Non-Government Educational Institution Tribunal, Jaipur under Section 21 of the Act of 1989. Section 21 of the Act of 1989 reads as under:- “21. Application to the Tribunal-(1) Where there is any dispute between the management of a recognised institution and any of its employee with respect to the conditions of service, the management or the employee may make an application in the prescribed manner to the Tribunal and the decision of the Tribunal thereon shall be final.” After hearing both the parties, the learned Tribunal has dismissed the application of the petitioner. Learned Tribunal has observed that mainly the challenge was to the termination of the services of the petitioner w.e.f. 20th May, 1998 and such order is appealable under Section 19 of the Act of 1989 within a period of 90 days from the date of 5 order. It was also observed that even the application under Section 21 of the Act of 1989 be treated under Section 19 of the Act of 1989 then also it is time barred. Learned Tribunal also observed that after termination of the present engagement w.e.f. 20th May, 1998, the petitioner was engaged on a consolidated salary from 1st July, 1998 to 15 May, 1999 and thereafter, again from 1st July, 1999 to 15th May, 2000 and thus, the petitioner has accepted the term of engagement and consolidated salary. On this premises, the learned Tribunal held that the petitioner is not entitled for any relief prayed for. The petitioner failed to place on record any order appointing/engaging him or terminating his services on the sanctioned or aided post. Since no such order has been placed on record by the petitioner from which the nature of the petitioner's appointment/engagement can be examined. In Kalu Ram Vs. State of Rajasthan & Anr. (supra), while considering the question of termination of services of teacher appointed on commencement of session but terminated before summer vacation, this Court held that the termination was merely to deprive the petitioner of vacation salary and order of termination is wholly void and illegal. However, in that case, vacancies were existed and the 6 petitioner therein was engaged upto the end of academic session and again re-employed from re-opening of the session. In Jai Narayan Vyas University, Jodhpur Vs. Narendra Singh Rathore & Ors. (supra), this Court held that if the University is taking work from these part-time teachers in almost the same manner like regularly appointed teachers then there is hardly any basis for paying a lesser amount to them only because they re-termed as part-time teachers engaged on period basis. In JaswantSingh Vs. Punjab Poultry Field Staff Association & Ors. (supra), the Hon'ble Supreme court did not upheld the promotion of the appellants therein to the post of Chick Sexer. However, the appellants therein had discharged the duties of Chick Sexer and therefore, they were at least entitled to pay and other allowances attributable to that post during the period they carried out such duties. In the instant case, there is no foundation either before the Tribunal or before this Court as to whether the nature of duties discharged by the petitioner while on temporary engagement on a consolidated sum, was similar to that of those lecturers, who have undergone the process of 7 selection and have been selected on merit nor the duration of duty has been mentioned. The point of equal pay for equal work has also not been raised before the Tribunal. In my view, the decisions relied on by learned counsel for the petitioner turn on their own facts and are of no help to the petitioner. I do not find any merit in the writ petition and it is, therefore, dismissed. No costs. (H.R.PANWAR), J. NK 8 S.B.CIVIL MISC.STAY APPLICATION NO. IN S.B.CIVIL WRIT PETITION NO. Date of Order : : /09/2008 HON'BLE MR.JUSTICE H.R.PANWAR Mr. (H.R.PANWAR), J. NK