1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.5661/2001. : : Indira Gandhi Balika Niketan Post Graduate College Vs. Dr.(Smt.) Shakuntala Patani & Ors. : : Date of Order 15.12.2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.Ashok Gaur with Mr.Ashwani Jaiman for the petitioner. Mr.Virendra Dangi with Ms.Nidhi Khandelwal for the respondents. Heard learned counsel for the parties. 2. This writ petition has been filed by Indira Gandhi Balika Niketan Post Graduate College, Arawata challenging the judgment of the Rajasthan Non-Government Institutional Tribunal, Jaipur (for short “the Tribunal”) dated 12.6.2000. The respondent No.1 filed an application before the Tribunal with grievance that she was not being allowed by the petitioner to discharge the duties as Lecturer (Economics). According to the respondent, she was appointed with the petitioner as Lecturer (Economics) on 3.1.1972 and she was being harassed by the petitioner-institution for last 10 years. 2 She was not being paid salary for years together. Her salary for the period of September, 1987 to October, 1988 was paid after enormous delay. When pay fixation in the revised pay scale was made w.e.f. 1.1.1986, she was not paid arrears till 1991, the respondent made number of representations after which it was paid. Again the salary of the respondent was withheld for the month of April, 1994. She was not allowed to mark attendance for which she made representations so much so that the respondent had to approach Rajasthan University Teachers Association (RUCTA) and also ADM (Jhunjhunu). The payment of her salary for the period April, 1995 to June 1995 was made in August, 1995, but even than she was not allowed to mark attendance for the month of January, 1994. She was not provided pass book of provident fund account. On 25.9.1995 she was informed by the Principal of College Smt.Shanno Lal that she should not come on duty from September, 1995 though she was not given any termination order. When she approached the College on 26.9.1995, she was not allowed to discharge the duties and take classes. The college was then closed from 30.9.1995 for about one month due to deepawali break. The respondent was surprised to learn that on 12.4.1995, the management had issued an advertisement inviting applications for various 3 posts including for the post of Lecturer (Economics). Apprehending that she might lose her job, she served notice for demand of justice upon the respondents and filed application before the Tribunal, in which the respondent- workman prayed for direction to the petitioner to pay her due salary by cheque latest by 15th of every month in terms of Section 29 of the Act of Rajasthan Non-Government Educational Institutions (Recognition, Grant-in-Aid & Other Service Conditions) Rules, 1993 and she prayed that Management be directed to grant selection grade w.e.f. 3.1.1998 with arrears and interest @ 24% per annum and furnish the entire record of Provident Fund and GPF and the Government be directed to deduct the grant-in-aid payable to the Management and make payment of her dues directly. The petitioner-Management contested the application before the Tribunal and asserted that the respondent on her own absented from duties on or from 24.6.1994 and she was absent till today. She was making false allegations against the Management about the ill- treatment and for not allowing her to discharge the duties. Her explanation was called for vide letter dated 24.10.1994 for alleging that the respondent had prepared false document. In fact, the Management informed the Education 4 Directorate about the continued absence of the respondent and Joint Director of the College Education. When he made inspection on 10.11.1995, he found that the respondent was absent. The petitioner asserted before the Tribunal that applicant/respondent's name had come from some other institution where she was being appointed as Principal and this was learnt from Directorate of College Education. It was also asserted that respondent verbally informed the petitioner-institution on 7.7.1995 that she was appointed elsewhere as Principal. It was prayed that the application be dismissed. 3. The learned Tribunal allowed the application filed by the respondent by the impugned award with direction to the petitioner to allow her work as Lecturer (Economics) and permit her to join and regularly mark attendance and pay her salary after granting due leave and continue to pay her salary by cheque by 15th of every month. It was further directed that her case for selection scale be considered in accordance with law. 4. Shri Ashok Gaur, learned counsel for the petitioner argued that respondent concealed all her gainful 5 employment elsewhere during the same period. In this connection, the petitioner also filed review petition in which it was clearly stated that respondent had joined as Principal of Leela Parasmal Sancheti Kanya Mahavidyalaya, Rani District Pali on 4.7.1996. Learned counsel submitted that the respondent abandoned the services of the petitioner institution deliberately with a view to joining that service and she has mislead the Tribunal by making false statement and till last she has not made any statement before the Tribunal that she is not in employment. It was argued that there was no question in not allowing the respondent to discharge her duties and mark attendance from January, 1994 because she has been paid salary for the period from April, 1994 to June 1995 and subsequently she absented from duties and, therefore, there was no question of salary being paid to her. Learned counsel submitted that respondent wanted to obtain the experience certificate from the petitioner-institution and in this connection the respondent approached institution and on such desire, certificate of her pay was issued on 7.7.1995. Since the petitioner felt that if the respondent left the job, there would remain no Lecturer available with them in the subject of Economics, it necessitated of the advertisement. Allegations of malafide or harassment were absolutely 6 baseless and therefore the judgment of the Tribunal is liable to be set aside. 5. Shri Virendra Dangi, learned counsel for the respondent opposed the writ petition and submitted that there was no question of abandonment of services by the respondent because she had been serving with the petitioner-institution since 3.11.1972. All throughout her service career she was harassed by the petitioner-institution on one or the other count. Her salary was not timely paid every now and then. She had to for that purpose make number of representations not only to the School Management but also to the Teachers Association. Learned counsel submitted that benefit of selection scale of the respondent was not timely paid. Learned counsel also cited the examples of two teachers Smt. Manjula Sharma and Smt. Mohini Rahad, who were, though junior to the respondent, yet were being paid higher pay. In spite of all these harassments the petitioner continued to work with the petitioner, but suddenly she was asked by the petitioner- institution not to come on duties from 26.9.1995. It is submitted that the joining of the service by the respondent with the Leela Devi Parasmal Sancheti Kanya Mahavidyalaya, 7 Rani, District Pali was much subsequent to time when the petitioner discontinued the respondent from the services and it was only for the purpose of earning livelihood for the time being. This however did not mean that the respondent had given up her claims or that she made any concealment. This could not be a reason for review of the judgment of the Tribunal because the application before the Tribunal was filed in the year 1995 itself whereas the alleged joining with the aforesaid Girls College, Rani was on 4.7.1996. It was argued that even after the judgment of the Tribunal, the respondent was not allowed to join duties with the petitioner institution. The respondent made number of efforts even than the petitioner did not allow her to join. Ultimately she was allowed to join when a conditional order or stay was passed by this Court on 29.9.2005 that the execution proceedings pending before the Civil Court shall remain stayed subject to petitioner undertaking to allow the respondent to join her services which would be again subject to out come of the writ petition. Learned counsel prayed that writ petition be therefore dismissed. 6. I have given my anxious consideration to the arguments aforesaid and perused the material forming part 8 of the record. 7. A perusal of the pleadings of the parties before the Tribunal clearly show that the present case could not be said to one of abandonment of the service particularly when the respondent was appointed with the petitioner-institution as far back as on 3.1.1972. In fact, number of events which the respondent have enumerated in the application before the Tribunal clearly reflect the conduct of the petitioner that payment of her salary for various months was delayed so much so her arrear of revised pay scale etc was also not paid in time. The respondent approached various authorities for redressal of grievances prior to filing application before the Tribunal. The stand of the petitioner before the Tribunal was that she had been absenting from duties from 24.1.1996. There was no question of respondent abandoning the services. Perusing the matter, it also cannot be believed that she left the duty with a view to join services with Girls College, Rani, District Pali. The respondent approached the Tribunal by filing the present application only when she felt apprehended that the post of Lecturer (Economics) on which she was working might be filled up by appointing someone else and for that purpose she approached the Tribunal 1995 9 whereas the alleged joining at Girls College at Rani on 4.7.1996 even according to the petitioner themselves. 8. The Tribunal was required to decide the application filed before it on merits as per the situation as on the date of his filing. Subsequent events could not be come basis for review of the judgment. In any case, the decision of the application before the Tribunal was to be made as per the events which unfolded till the filing of the application. If the respondent with a view to earning livelihood during the pendency of the application, joined services elsewhere, this could not adversely effect her right in claiming the direction to the petitioner to allow her joining and discharge duties on the post of Lecturer, grant of selection scale, arrears of salary and other benefits. The Tribunal allowed the application on 10.6.2000 and in spite of the respondent approaching the petitioner-institution on number of dates they did not allow her joining and when ultimately execution application was referred to the concerned Civil Court by the Tribunal, they approached this Court by way of second stay application. This Court passed a conditional order by staying the execution of the order of the Tribunal subject to the petitioner undertaking to allow the respondent to join the 10 services and discharge of the duties. It is informed that the respondent has now upon attaining the age of superannuation on 8.8.2006 retired from service. So far however, grievance of the respondent is that her salary has not been paid in the correct pay scale and pay fixation has not been correctly made, all these questions would be determined by the Executing Court and not by this Court. In the result, this writ petition is dismissed as having no merit. There shall be no order as to costs. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.20.