1 In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur Order 1. S.B.Civil Writ Petition No.6665/2008 Managing Committee Vedik Kanya P.G. College, Jaipur and another vs Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ors. 2. S.B.Civil Writ Petition No.6664/2008 Managing Committee Vedik Kanya P.G. College, Jaipur and another vs Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ors. 3. S.B.Civil Writ Petition No.6666/2008 Managing Committee Vedik Kanya P.G. College, Jaipur and another vs Rajasthan Non-Government Educational Institutions Tribunal, Jaipur and ors. Date of order ::: 29.05.2009 Present Hon'ble Mr.Justice Prem Shanker Asopa Mr.S.K.Sharma for Mr.Kamlakar Sharma, for the petitioners. Mr.Vinod Goyal for Mr. Virendra Lodha, for the respondents. By the Court: 1.By all the aforesaid writ petitions, the petitioners have challenged the order of the Rajasthan Non-Government Educational Tribunal dated 22.4.2008 whereby the order of the petitioner-management dated 9.5.2007 of declaring the private-respondents No.3 2 in CWP No.6665/2008 Dr.Usha Chaturvedi, in CWP No.6664/2008 Dr. Pratibha Gaur and CWP No.6666/2008 Dr. Rajni Pandy as surplus and consequential removal from their services with effect from 30.6.2007, has been quashed and set aside. 2.At the outset, counsel for the petitioner- Management Committee of Vaidik Kanya P.G. College,Jaipur has submitted that petitioners' Institution has no objection in case the surplus employees are absorbed in any other Institution without fastening any liability upon the petitioners' management. He further submits that the similar type of controversy has been decided by this court in S.B.Civil Writ Petition No.1717/2006 (Managing Committee Vaidik Kanya P.G. College, Jaipur and another vs The Presiding Officer, Rajasthan Non-Government Educational Tribunal, Jaipur and ors.) on 01.05.2009. 3.Both the counsel submit that they are limiting their argument only to the surplus and absorption as held in the aforesaid case and the issue of consent be decided in 3 these writ petitions. 4.In view of the above, the contest is between the State and the private respondents. 5.Counsel for the State has submitted that there is no provisions in the rule for absorption in any other Institution. 6.Counsel for the private respondents submits that the State being a welfare state has to take into consideration the issue of their absorption at the time of making the fresh appointment for which a policy is to be evolved as held by this Court in case titled Managing Committee Vaidik Kanya P.G. College, Jaipur and another(supra). 7.I have gone through the record of the writ petitions and considered the rival submissions. 8. The relevant paragraph Nos. 13 to 20 of the judgment titled as Managing Committee Vaidik Kanya P.G. College, Jaipur and another(supra) are as follows: “(13) Before proceeding further, I would like to quote Section 16 of Rajasthan Non- Government Educational Institutions Act, 1989 and Rules 92 and 93 of the Rajasthan Non-Government Educational Institutions Rules, 1993 which read as under: 4 Section-16. Power of the State Government to regulate the terms and conditions of employment- (1) The State Government may regulate the recruitment and conditions of service, including conditions relating to qualifications, pay, gratuity, insurance, age of retirement, entitlement of leave, conduct and discipline of a persons appointed as employees of aided institutions in the State. Provided that the rights and benefits accruing to an employee of an existing institution under the grant in aid rules in force at the commencement of this Act shall not be varied to the disadvantage of such employee: Provided further that every such employee shall be entitled to opt for such terms and conditions of service as were applicable to him to him immediately before the commencement of this Act: Provided also that, irrespective of the age of retirement prescribed, action may be taken for compulsory retirement of such an employee after completion of 25 years of service or on attainment of the age of 50 years whichever is earlier, in accordance with the procedure as may be prescribed. (2)Every recognized institution shall constitute a provident fund for the benefit of its employees in such manner and subject to such conditions as may be prescribed and contribute to such fund and pay interest on the deposited amount at such rate as may be prescribed from time to time. (Emphasis supplied) Rule- 92 Powers to exempt from Rules- The State Government may, by general or special order exempt any institution or any class of institutions from any of the provisions of the rules or may direct that such provisions shall apply to such institution or class or institutions with such modification and, or conditions as may be specified in the orders. Rule-93 Removal of Doubts- Where a doubt 5 arises as to the interpretation of any of the provisions of these rules or their applicability, the matter shall be referred to the Government in the Education Department, whose decision thereon shall be final. (14) In the case title as Avas Vikash Sansthan and Anr. Vs Avas Vikash Sansthan Engineers Assocation and ors (Supra), the Supreme Court has observed in para 51 as under:- “ Power to abolish posts as a measure of economy: It is well settled that the power to abolish a post which may result in the holder thereof ceasing to be a Government Servant has got to be recognized. The measure of economy and the need for streamlining the administration to make it more efficient may induce any State Government to make alterations in the staffing pattern of the civil services necessitating either the increase or the decrease in the number of posts or abolish the post. In such an event, a Department which was abolished or abandoned wholly or partially for want of funds, the Court cannot, by a writ of mandamus, direct the employer to continue employing such employees as have been dislodged. In the instant case, the State of Rajasthan has framed a scheme and offered alternative employment in the other local bodies as a Welfare State on humanitarian grounds.” (Emphasis supplied) (15) In the case title Agrawal Shiksha Samiti (Shri) and Anr. Vs State of Rajasthan (supra), the Division Bench of this court has observed in paras Nos. 14 to 21 as under:- “14.1.Whether term regulate the recruitment and condition of service under Section 16 (1) of the Act of 1989 includes promotion also. In other words, whether the promotion is condition of service: The Supreme Court in State of Madhya Pradesh v. Sardul Singh 1970 SLR 101, in para Nos. 8 and 9, has held that 'condition of service' is an expression of wide import 6 which means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it , in matters like pension. The same view has been followed in Lily Kurian v. Sr. Lawina 1979 (1), in para 13 and it has been held that expression 'condition of service' includes everything from the state of appointment to the stage of termination of service and even beyond, and relates to matters pertaining to disciplinary action and in State of Punjab v. Kailash Nath 1989 (1) SLR 12, in para Nos. 6 and 7 dealing with a case of prosecution against a retired Government employee, the Supreme Court while interpreting the term “ condition of service”, further followed the judgment of Sardul Singh (supra) and it was held that in the normal course what falls withing the purview of the term “condition of service” may be classified as salary or wages including subsistence allowance during suspension, the periodical increments, pay-scale, leave, Provident Fund, Gratuity, Confirmation, promotion seniority, tenure or termination of service, compulsory or premature retirement, superannuation, pension, changing the age of superannuation deputation and disciplinary proceedings. Para No. 7 of the aforesaid judgment is as follows: (7) In the normal course what falls withing the purview of the term “condition of service” may be classified as salary or wages including subsistence allowance during suspension, the periodical increments, pay-scale , leave, Provident Fund, Gratuity, Confirmation, promotion, seniority tenure or termination of service, compulsory or premature retirement, superannuation, pension changing the age of superannuation deputation and disciplinary proceedings. Whether or not a Government servant should be prosecuted for an offence committed by him obviously cannot be treated to be something pertaining to conditions of service. Making a provision that a Government servant, even if he is 7 guilty of grave misconduct or negligence which constitutes an offence punishable either under the Penal Code or Prevention of Corruption Act or an analogous law should be granted immunity from such prosecution after the lapse of a particular period so as to provide incentive for efficient work would not only be against public policy but would also be counter productive. It is likely to be an incentive not for efficient work but for committing offence including embezzlement and misappropriation by some of them at the fag end of their tenure of service and making an effort that the offence is not detected withing the period prescribed for launching prosecution or manipulating delay in the matter of launching prosecution. Further, instances are not wanting where a Government servant may escape prosecution at the initial stage for want of evidence but during the course of prosecution of some other person evidence may be led or material may be produced which establishes complicity and guilt of such Government employee. By that time period prescribed, if any, for launching prosecution may have expired and in that even on account of such period having expired the Government servant concerned would succeed in avoiding prosecution even though there may be sufficient evidence of an offence having been committed by him. Such a situation, in our opinion, cannot be created by framing a rule under Article 309 of the Constitution laying down an embargo on prosecution as condition of service. 15. The Supreme Court has further held in Sitaram Jivyabhai Gavali v. Ramjibhai Potiyabhia Mahala and others MANU/SC/0388/1987, AIR 1987 SC 1293, JT 1987 (1) SC 767, (1987) II LLJ 133 SC, 1987 (1) SCALE 608, (1987) 2 SCC 262, (1987) 2 SCR 635, 1987 (2) UJ 133 (SC) that new condition of service can be prescribed by executive order. The relevant para No. 13 of the aforesaid judgment is as follows: 13. ...... It is well recognized that a new service condition may be brought into effect by an executive order and such 8 condition would remain in force as long as it is not repealed either expressly or by necessary implication by another executive order or a rule made under the proviso of article 309 of the Constitution of by a statute. 16. Thus, it can safely be concluded that not only the conditions of service which are initially prescribed will be covered by the terms and conditions of the service but the same can also be subsequently prescribed either by Rules or by executive order. 17. Promotion is a condition of service as held by the Supreme Court in State of Maharastra v. Jagannath Achyut Karandikar 1989 (2) S.L.R. 31. In para 7 of the aforesaid judgment the Supreme Court has also held that the Government preserved power to dispense with, or relax the requirements of any rule regulating “ the condition of service of Government servants; or any class there of”. The relevant portion of para No.7 of the aforesaid judgment is reproduced hereunder for ready reference:- (7) The aforesaid Rules expressly provided power to the Government to grant more changes for passing the examination in any individual case or in class of cases. Under the 1955 Rules, the Government preserved power to dispense with , or relax the requirements of any rule regulating the conditions of service of Government servants; or any class thereof”. In exercise of this power, the Government could dispense or relax the operation of any rule, if it cause undue hardships in any particular case. It is needless to state that this power includes the power to relax the conditions prescribed for promotion since promotion is a condition of service. There is no restriction as to the exercise of the power or discretion. As regards condition of service detailed out in Section 16(1) of the Act of 1989, the expression “ condition of service” as mentioned in Section 16(1) of the Act of 1989 is inclusive, therefore, the same has to be given the meaning of wide import. The 9 list of service conditions illustrated in the said Section is inclusive and not exhaustive. The Supreme Court while interpreting the word “ includes” in definition “ Industry” under Section 2(j) of the Industrial Disputes Act, 1947 in the case of The State of Bombay and Ors. Vs The Hospital Mazdoor Sabha and Ors MANU/SC/0200/1960, AIR 1960 SC 610, (1960) 62 BOM LR 553, (1960) I LLJ 251 SC, [1960 2 SCR 866, in para No.10, interpreting the inclusive definition, has held that the inclusive definition denote extension and cannot be treated as restricted in any sense. Where the courts are dealing with an inclusive definition, it would be inappropriate to put a restrictive interpretation upon terms of wide denotation. Para No.10 of the aforesaid judgment is reproduced hereunder for ready reference:- (10) There is another point which cannot be ignored. Section 2(j) does not define “ industry' in the usual manner by prescribing what it means the first clause of the definition gives the statutory meaning of “industry” and the second clause deliberately refers to several other items of industry and brings them in the definition in an inclusive way. It is obvious that the words used in an inclusive definition denote extension and cannot be treated as restricted in any sens . (Vide:Stround's “ Judicial Dictionary”, Vol. 2, P.1415), Where we are dealing with an inclusive definition it would be inappropriate to put a restrictive interpretation upon terms of wider denotation. 18. The said judgment has been held to be a good law by the majority view of the seven Judges Constitution Bench of the Supreme Court in Banglore Water Supply @ Sewerage Board v. A. Rajappa and Ors. MANU/SC/0257/1978 SC 548, [1978 (6) FLR 266}, (1978) I LLJ 349 SC, (1978) II LLJ 73, SC, (1978} 2 SCR 207, in para No. 140, while again interpreting the term “industry” which was given a wide import. Similarly the Supreme Corut in State of 10 Maharasthtra v. Labour Law practitioners' Association and Ors MANU/SC/0121/1998, 1998,, 1998 II AD(SC) 20, AIR 1998 SC 1233, [1999(82) FLR 380} (1998)2 GLR 1079, JT 1998(1) SC 604, (1998) I LLJ 868 (1) SCALE 565, (1998)2 SCC 688, [1998] 1 SCR 793, in para No.10, has held that term “District Judge” indicates that a wide interpretation is to be given to the expression “ District Judge'. The extensive definition of a District Judge under Article 236 is inclusive Judge of the Labour Court and the Judge of the Industrial Court. 19.In view of the above not specifying the term ' promotion' as a condition of service in Section 16(1) of the Act of 1989 is of no help to the petitioners. The term of regulate condition of service will include promotion also. 20.As concluded herein above, even new condition of service for promotion can be laid down by the State Government, we have no hesitation in holding that the State Government can still make promotion as a condition of service either by amending the rules or by executive order for employees of non Government educational institutions.” (Emphasis supplied) (16) In the case title Andhra University vs M.Sivaram and others (supra), the Supreme Court has observed in para 2 as under:- “2. the respondents were serving the Institute of Coastal and Offshore Research (INCOR) in different capacities. In the year 1989, the INCOR as department was wound up and all the posts therein were abolished. The respondents sought a writ in the nature of mandamus from the Andra Pradesh High Court seeking a direction that INCOR being a part of the Andhra University, the respondents were entitled to be absorbed in the University on equivalent posts. A learned Single Judge of the High Court rejected the contention of the respondents that INCOR was a unit of the University. The learned Single Judge, however, directed the University to frame a 11 scheme to absorb the respondents in the service of the University in the existing and future vacancies. The learned Single Judge dismissed the writ petition in the following terms: “ ............... They have been working in an institution which had been in some association with the University. It will be fair for the University to consider and absorb many employees of the INCOR as are eligible and willing to come in the service of the University in suitable posts and the existing vacancies or the vacancies which may arise at the foreseeable future. I am not suggesting that direct recruitment by University should be totally banned for this purpose.” (Emphasis supplied) (17) In the instant case, Act of 1989 and the Rules of 1993 are silent on the issue of transfer/ absorption and in such a situation, the executive powers can be exercised as held by the Supreme Court in case of Sant Ram Sharma vs State of Rajasthan and others reported in AIR 1967 SC 1910 which has been consistently followed till today. The relevant paragraph of para-7 of Sant Ram Sharma's case (Supra), is as under: “ It is true that Government cannot amend or supersede statutory Rules by administrative instructions but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not consistent with the rules already framed.” (18) For the aforesaid reasons, there is no impediment for the Government to frame a scheme of transfer/ absorption of the employees who have been declared surplus in one institution and other institution is willing to take the employee on the same status. (19) In view of the Division Bench judgment of Agrawal Shiksha Samiti (Shri) and Anr.(supra) the term of transfer/ absorption is also inclusive of term 'condition of service' as referred in Sec.16 of the Act of 1989. The Government 12 being a welfare Government and its duty not to generate unemployment and discontent among teachers/ employees even of Non- Government Educational Institution and it can interfere in such kind of situation by framing the scheme. (20) The Supreme Court has also approved the judgment of the learned Single Judge of Andra Pradesh High Court for framing such kind of scheme in the similar circumstances for their absorption in the university on closure of INCOR wherein it has also been upheld by the Supreme Court although INCOR was not an unit of the University.” 9.In these particular cases, no consent has been given by any Institution, therefore, while framing the rule for direct recruitment by sending departmental representative for the respective post, Government can certainly frame a policy to fix appropriate percentage of quota for absorption of the Teachers who have been declared surplus in any other institution. 10.The writ petitions are partly allowed and the respondents are directed to frame a Government policy of absorption of the surplus employee of Non Government Educational Aided Institution to another Non- Government Educational Aided Institution where the posts are lying vacant by fixing 13 appropriate percentage and to further pass appropriate orders in such cases before starting of next academic session/ filling of the respective posts in the Non-Government Educational Aided Institution for the fresh selection of which Government shall send its representative within a period of one month and take appropriate action within another period of one month. Consequently, the order of the Tribunal dated 22.4.2008 stands modified. (Prem Shanker Asopa),J om